Blackmun's Boots

SUPREME Court Justice Harry Blackmun, who announced his retirement this week, already has carved his place in American jurisprudence as the author of the majority opinion in the landmark 1973 case Roe v. Wade, which legalized abortion in the United States.

As President Clinton searches for a successor, we hope one of the qualifications will be a Blackmun-like tendency to see the impact of decisions in human terms as well as legal terms.

Influenced by justices such as William Brennan Jr. and the late Thurgood Marshall, who in a minority opinion once gave Justice Blackmun a bit of collegial come-uppance for indicating that poor people could afford bankruptcy fees by saving up their movie money, Blackmun's opinions increasingly reflected concerns for how decisions affect real people.

In a minority opinion stemming from a 1977 case dealing with Medicaid and abortions for the poor, he wrote: ``There is `another world' out there, the existence of which the Court, I suspect, either chooses to ignore or fears to recognize.... This is a sad day for those who regard the Constitution as a force that would serve justice to all evenhandedly, and in so doing, would better the lot of the poorest among us.''

In a later dissenting opinion, he likened the majority's reasoning to that of pre-Civil War tribunals who upheld slavery based on existing legal doctrine, whereas his preferred approach ``comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging.''

Perhaps most striking was his February reversal on the death penalty. ``I feel morally and intellectually obligated to concede that the death penalty experiment has failed,'' he wrote, hoping that one day the court would acknowledge that the death penalty must be abandoned.

The short list of replacements for Blackmun reportedly includes Sen. George Mitchell (D) of Maine, Stephen Breyer, a federal judge in Boston, and Jose Cabranes, a district court judge in Connecticut (who would be the high court's first Hispanic if nominated and confirmed). Indeed, as the process narrows, attention undoubtedly will focus on ethnic diversity on the court.

Yet as Justice Blackmun's evolving record suggests, legal acumen tempered with compassion and humanity may be the overriding need.

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