'Poor Joshua!'

When arguments were raging over Sonia Sotomayor's nomination to the Supreme Court, many people opposed to her confirmation seemed to be of the opinion that there was no room for empathy in legal reasoning.

Sotomayor eventually won Senate confirmation to the Supreme Court in August. The nomination debate was still fresh in my mind this month when a friend loaned me the book "Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey" by Linda Greenhouse.

Blackmun has been a hero of mine ever since I was in college researching my political science thesis on parental notification and consent requirements for minors seeking abortions. Blackmun consistently showed his sympathy for girls who have an unwanted pregnancy.

I wondered if "Becoming Justice Blackmun" would tarnish my view of my hero, or elevate him still higher.

The third choice of then-President Richard Nixon, Blackmun was appointed to the Supreme Court in 1970. Viewed as a conservative by most and as an independent thinker by the prescient few, he joined his lifelong friend Warren Burger on the Court.

As Blackmun's views gradually became more liberal, strains emerged in his friendship with the more conservative Burger. "Becoming Justice Blackmun" does a good job of portraying the emotional toll this took on both men.

The book details how a family episode, combined with Blackmun's early experience as the staff attorney for the Mayo Clinic medical center, eventually would shape his views when he was tasked with writing the Supreme Court's majority opinion for the landmark abortion case Roe v. Wade.

His 19-year-old daughter became pregnant in 1966 when she was in college. She dropped out of school and married her boyfriend, but then suffered a miscarriage and the dissolution of the marriage.

When Roe v. Wade came to the court, a majority of Justices were in favor of decriminalizing abortion. Blackmun was assigned to write the majority opinion.

Rather than relying on legal precedent alone, Blackmun retreated to the Mayo Clinic's library during the Court's summer recess in 1972. He consulted medical journals and noted a Gallup poll that reported that 64 percent of respondents felt the decision to have an abortion should be left to a woman and her doctor.

Although a 7-2 majority on the Supreme Court voted to legalize abortion when the Court resumed its work, Blackmun was viewed from then on as the father of legal abortion by abortion foes. They sent him death threats and said his mother should have aborted him. For security reasons, Blackmun was no longer allowed to drive himself to and from the Court in his Volkswagen Beetle.

Yet the "murderer of unborn babies" was the one who wrote one of the most personal and anguished dissents in Supreme Court history when a Court majority voted to dismiss the case of a mother who had sued a county social services department. Four-year-old Joshua DeShaney had been repeatedly beaten by his father, who had won custody of the boy after a divorce from the mother. A county social worker who made monthly visits failed to intervene despite the injuries. Then a final beating left Joshua with permanent and severe brain damage.

"Poor Joshua!" Blackmun began his dissent. "Victim of repeated attacks by an irresponsible, bullying, obviously cowardly, and intemperate father, and neglected by respondents who placed him in a dangerous predicament and who knew or learned what was going on and yet did essentially nothing except, as the Court revealingly observes, 'dutifully recorded these incidents in their files.'"

Later Blackmun explained the reason he used such passionate language: "Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions."

Blackmun died in 1999. Greenhouse notes in her book that a Volkswagen Beetle led the procession of limousines to the cemetery.

Tidings staff writer Vickie Aldous and Tidings correspondent Angela Howe-Decker alternate as author of the weekly column Quills & Queues.

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