February, 2006 Books
Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey
Reviewed by C. D. Rogers
Linda Greenhouse has gleaned Justice Blackmun’s personal and official papers — all 1,585 boxes in the Library of Congress — to offer us this readable and insightful book. Greenhouse, a Pulitzer Prize winning reporter for the N. Y. Times, focuses Blackmun’s biography on abortion, gender discrimination, the death penalty, and his relationship with Chief Justice Warren Burger.
“The Road to Roe,” begins with Blackmun’s personal note to himself about United States v. Vuitch (1971): “Here we go in the abortion field.” His files contain research from the AMA ’s J ournal about a woman infected German measles whose child was born seriously defective after a New York hospital refused her an abortion. His notes on his position on jurisdiction, including his personal comment that “the case is better prepared if it percolates through the normal structure”; questions of right to privacy; definition of “health” and preparatory arguments two days after deciding Vuitch for both Doe v. Bolton and Roe v. Wade (1973) . And why did Burger assign these two cases to Blackmun? Greenhouse suggests that Blackmun “never knew exactly why,” but she identifies variables in his nine years as resident counsel at Mayo Clinic and Burger’s faith in his friend’s diplomatic talents—needed now both inside and outside the Court on the abortion issue. Greenhouse adds an ironic experience: Blackmun’s daughter, pregnant at 19, a college dropout who married and later divorced, “suffered a miscarriage less than three weeks after the wedding.” “Saving Roe” begins with changes in his life as a consequence of Roe : from security threats and sacrifice of his blue Volkswagen Beetle for the Court car, to continued challenges and his mantel to defend Roe, to shifts in votes of newly appointed justices, to recognition of evolving jurisprudence through controversy. When asked in his last oral interview “whether writing Roe v. Wade was ‘a piece of bad luck or good luck,’” he surmised: “I think one grows in controversy.” Blackmun, at 83, predicted that “when I do step down, the confirmation process for my successor may well focus on the issue [abortion] before us today.”
1992, Blackmun’s law clerk told him that he was the justice “American women look to,” a feminist icon. This status delighted Blackmun’s three daughters more than him, initially. In Roe, he had focused on the doctors more than on the women, but history and myth changed his image. When writing for the Court in the 5-to-4 decision in Thornburgh (1986), he centers on “a certain private sphere of individual liberty will be kept largely beyond the reach of government.. . . that extends to women as well as to men.” Greenhouse concludes that in Planned Parenthood v. Casey (1992), Blackmun’s opinion recognized reproductive freedom “as an essential aspect of women’s equality,” concludes Greenwood.
Blackmun personally opposed capital punishment while he served on the Court of Appeals for the Eighth Circuit, but he viewed the issue as a legislative policy to be supported. Greenhouse finds in Blackmun’s papers and Supreme Court decisions that his “discomfort with the death penalty grew with each passing term.” Before his retirement in 1994 after 24 years on the Court, he minced no words: Because “the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake,” it is always unconstitutional.
The 60-year relationship with Burger merits reasons in itself to read Becoming Justice Blackmun. Blackmun and Burger met in kindergarten, and their friendship even through many years at the Supreme Court justified their label, “Minnesota Twins.” After law school, the possibility always remained for a firm called Burger and Blackmun. Blackmun served as best man in Burger’s wedding; Burger would prove instrumental in smoothing Blackmun’s nomination for Supreme Court Justice. On the bench, they encouraged each other. Burger encouraged Blackmun when he wrote Bakke (1978): “Cheer up—there can’t be any more as tough as this one!” They planned trips together; they celebrated family occasions together; and they voted together—often in the beginning. “Blackmun voted with Burger in 87.5 percent of the closely divided cases during his first five terms (1970-1975); in contrast, Blackmun voted with Burger 32.4 percent during their final five years serving together.
Greehouse attributes the rupture of a lifelong friendship to ideology and to their hypersensitivity to slights. This relationship “was complex, multilayered, encrusted with a lifetime of shared experiences and mutual expectations.” Her metaphor skims both the sadness and the cause of this broken circle: “like water dropping on stone and, over the years, wearing it away.”
Becoming Justice Blackmun contains professional and personal insights both into Blackmun’s and the Court’s processes in reaching decisions. It shares personal notes passed even during arguments before the Court. Also consider the 510-page oral history Blackmun recorded—and Greenwood uses—available both in transcript and video at www.loc.gov/rr/mss/blackmun/.
Becoming Justice Blackmun, published in 2005 by Times Books, 268 pp, retails for $25.
C. D. Rogers is a member of The Florida Bar.
Solomon vs. Lord
Reviewed by Jennifer Winegardner
Reading Paul Levine’s Solomon vs. Lord is like watching a hot new TV show. It’s a fast book. You can pick it up and read a few chapters at a time, or block out an entire rainy Saturday to read.
Levine introduces Victoria Lord, a newish tightly wound attorney destined for a brilliant career, and the devil-with-a-heart-of-gold Steve Solomon, a little older, and a little wiser. Solomon and Lord first meet as opposing counsel in a criminal case. They hate each other, and end up in jail together for contempt after they erupt in front of the judge. Solomon gets an acquittal and Lord gets fired. They are both broke and in need of a big case when Lord’s country-club acquaintance, Katrina Barksdale, is accused of murdering her much older, much richer husband in a sexually scandalous circumstance. Lord gets the case, but there’s a hitch: she must co-counsel with Solomon.
It turns out, Solomon is not the rogue that Lord has him pegged for. He has taken in his formerly abused autistic savant nephew and is fighting the state for custody. Turns out, also, that Lord is not the high-society marry-for-money type Solomon has her pegged for; she barely makes ends meet and happily shops consignment. Despite what sounds convoluted, their relationship rings true. The courtroom scenes and legal plot ring true as well. It’s obvious to me, a former staff attorney at the Florida Supreme Court, that Levine has done his homework. I bought it: the testimony, sidebars, and backroom dealings.
The story stumbles a bit on cliché and predictability when it comes to the minor characters. Lord is about to marry Bruce Bigsby, a “total dweeb” vegan avocado heir. Bigsby surprises Lord one day when he brings a picnic lunch to court: an avocado sandwich and an avocado sorbet. Lord, however, indulges in spareribs and prosciutto with Solomon, swearing Solomon to secrecy. There is Ray Pincher, the prosecutor with a chip on his shoulder who once attended seminary school (biblical allusions abound!). Pincher is a one-dimensional mean guy out to win at all costs. Katrina Barksdale serves the plot well, but she’s no more than the young hottie servicing her rich older husband’s kinky sexual fantasies, playing with the hired help on the side, and lying to her attorneys about it. So she’s unfaithful, but it doesn’t make her a murderess. Or does it?
Most importantly, though, Solomon and Lord are fully developed and fully believable. The dialogue is fast, the scenes are short, and the story has momentum. Levine is a former trial attorney and wrote scripts for TV. He can write, and he knows the law. He does what I think he set out to do—create escapist fun. And he continues in his next book, Deep Blue Alibi, where Solomon and Lord are again featured.
Get this book and throw it in your carry-on. You’ll be able to enjoy an episode while you wait for your boarding pass, and just one more before landing.
Jennifer Winegardner practices with Broad and Cassel, Tallahassee, and is a member of the Journal and News Editorial Board.
David Hackett Souter
Tinsley Yarbrough’s David Hackett Souter tells the gripping story of one of this century’s preeminent legal minds. Yarbrough skillfully paints a picture of a man appointed to the Supreme Court by a president whom, in hind-sight, we would have least suspected, the first President Bush. Appointed in 1990, Justice Souter remains today “as enigmatic and unpredictable as ever, a mystery even to avid court watchers.” Yet Yarbrough’s description of his life and career reads like a first-hand account.
The book begins on September 11, 2001, with a personal vignette that serves to illuminate what the remainder of the book will eventually divulge — that is the unshakable character of the man this country knows as “Justice” Souter. Amid all the chaos on that day, David Souter managed to evade his security personnel to attend lunch at the Concord home of some good friends. “[W]hile much of the nation’s officialdom attempted to cope with the 9/11 disaster, anxious about possible further attacks on national institutions and leaders, one member of one of the nation’s most powerful bodies eluded the security efforts of his own court staff in order to enjoy a quiet meal with friends.” Yarbrough captures this, and so many more intimate moments in the life of a stoic who has remained a secret even to the country he so steadfastly serves.
After discussing Souter’s New England lineage and Harvard education, Yarbrough moves on to the dominant theme of the book: Souter’s never predictable but always remarkable legal career. From his ivory-tower education, he chose to launch a career in public service that began when he accepted a position as an assistant attorney general in New Hampshire. Little did anyone know this would dramatically alter the predicted career path of the Concord native.
Through Yarbrough’s thoughtful depiction of Souter’s transformation from erudite New Englander to principled, workaholic civil servant, devoted friend, and family man, it becomes impossible not to admire the man. During his time as a state attorney, judge, state Supreme Court justice, and finally, U.S. Supreme Court Justice, David Souter offended both the conservatives who appointed him, and the liberals who opposed him; and Yarbrough beautifully illustrates why it is they love him for that. When pressed, one skeptical commentator was led to say that Souter was “a very nice man: kind to friends and family; a quietly pious fellow; a hard worker; an old-fashioned frugal Yankee…[but that] What got him to the courthouse door is the notion that he is brilliant; he is, we are assured, ‘a scholar.’”
Such is the frustration and the wonder of Justice Souter’s career. It is marked by a commitment to traditional republicanism that ties him to ideals long-since abandoned by the party who put him on the bench. Yet in spite of his mystery, Tinsley Yarbrough manages to paint a complete, and completely intriguing portrait of David Hackett Souter’s career and character.
The Destruction of Young Lawyers: Beyond One L
Litowitz has jarringly captured the abysmal world of young attorneys in this study of first-hand accounts, and hard data on the satisfaction of practicing and rising attorneys. The Destruction of Young Lawyers details the struggles encountered by those entering the legal profession through a systematic deconstruction of the process of indoctrinating young minds to the modern way of the law.
Litowitz opens his book with an alarming account of the pervasive depression among blossoming attorneys. Citing study after study, Litowitz backs up the bad news that “the legal profession makes young people unhappy, anxious, depressed, and desperate.” He attributes this dismal conclusion first to the law schools which torture their students by pitting one against another. Because of this, the relationship between professors and students, and the tedium of the case method of teaching, Litowitz boldly claims that “nobody comes out of law school feeling better about themselves, although many come out much worse — caustic, paranoid, and overly competitive.”
Moreover, Litowitz points out, after enduring three agonizing years of law school, students are released into a hostile job market where they will be lucky to find any legal job and therefore rarely attempt to find one that actually suits their interests (presuming they are still able to identify interests beyond socioeconomic ones). This leads students to seek the highest paying jobs rather than the most rewarding which only compounds their burgeoning depression.
Next Litowitz takes on the bar exam, arguing that it “is a charade that should be abolished or radically reformed.” Instead of preventing incompetent law school graduates from becoming incompetent lawyers, it merely weeds out those potentially good lawyers who are less savvy at test-taking. This, however, permits future bad lawyers to pass, and forbids potentially good lawyers from having their shot at a legal career. In Litowitz’ view, the veiled truth is that the bar exam is little more than a rite of passage, closely akin to a fraternity hazing ritual.
If the young lawyer is not destroyed by his or her experiences thus far, firm politics are sure to do the trick. After spending three years in training for the reward of becoming a firm associate, those “lucky” enough to achieve the goal are worked like slaves and treated as “fungible commodities.” After all, “[n]owadays, merely being a good lawyer is not enough; one must also be a self-sustaining profit-center, or attached umbilically to a lawyer who fits this description.” The drive to make this kind of attachment, or again, to pay down the massive debts incurred during law school, means that “[y]oung lawyers at large firms find themselves subservient to large corporate institutional clients, whom they try to impress by engaging in morally reprehensible tactics and naked abuses of power….” This big firm environment is not only a new development for young lawyers, but a dangerous one because of the pressure it creates to bill hours, even fraudulently.
While Litowitz does offer practical solutions to the causes of decay in the legal profession, the book is largely a sorrowful journey through the life of a burgeoning lawyer. It concludes with a four-page “happy ending” which fails to overpower the bitter taste it leaves in the reader’s mouth. However, despite its gloom, The Destruction of Young Lawyers is soberingly honest and forthright.
Death Row Defender
Ray Dix’s legal thriller Death Row Defender tells the suspenseful story of an ex-public defender turned appellate advocate for an innocent death row convict. Jon Clayton was wrongly convicted of the rape and murder of Donella Nash. After five years on death row, Clayton’s number is finally up as the governor uses his execution as political fodder for his own reelection.
For Clayton’s final appeal, the court has appointed ex-public defender Woody Thomas who must overcome evidence of his client’s history of violence. Worse still, Thomas must somehow prevail over the evidentiary lynch pin that the bullet in Nash’s head came from Clayton’s own gun. To complicate matters further, Thomas falls into trouble of his own as he begins to uncover the truth about Clayton’s wrongful conviction.
Filled with intrigue and set on Florida’s Gulf coast, this thriller is a fast read. But the depth of Dix’s treatment of the criminal appeals process makes this novel more than a murder mystery. Death Row Defender is clearly written by an author who has first-hand experience in defending capital cases, and it showcases Ray Dix’s expertise as a writer.