Blackmun's notes also expose attempts by law clerks to influence justices. Many law clerks are educated at schools that share Blackmun's judicial philosophy rather than the "original intent" philosophy embraced by Justices William Rehnquist, Antonin Scalia and Clarence Thomas. On Jan. 4, 1992, law clerk Molly McUsic wrote Blackmun about Planned Parenthood vs. Casey, a case that might have served to reverse Roe. That was a presidential election year, and McUsic's note to Blackmun suggested that he consider the political implications of overturning Roe that year. "If you believe that there are enough votes on the court now to overturn Roe," she advised, "it would be better to do it this year before the election and give women the opportunity to vote their outrage."
Roe survived because Justice Anthony Kennedy (a Reagan appointee, like O'Connor) switched his position and decided to vote with O'Connor and Justice David Souter (a George H.W. Bush appointee) to uphold it. Blackmun's notes reveal that Kennedy "was especially worried about the attention he would get as a Roman Catholic reaffirming Roe." If he was that concerned, he might have consulted with Justice Scalia, a fellow Catholic, who believes Roe was incorrectly decided. Instead, Kennedy chose Blackmun, a Methodist, who saw Roe as his great legacy.
The Blackmun notes are an important contribution to the debate about what kind of judges should sit on the Supreme Court and other high courts. Sen. John Kerry, the presumptive Democratic presidential nominee, favors those who share Blackmun's judicial philosophy. President George W. Bush wants judges who don't make law but apply what has already been written by the Founders and by the people's elected representatives.
This is a worthy debate, and President Bush should make clear the consequences of judicial freelancing and the benefits of law that is used "properly."
Cal Thomas is co-author (with Bob Beckel) of the book, "Common Ground: How to Stop the Partisan War That is Destroying America".
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