“Standing on the Corner When the Bus Came By”: Harry A. Blackmun’s Appointments to the United States Court of Appeals for the Eighth Circuit (1959) and the United States Supreme Court (1970)

Abstract

“Standing on the Corner When the Bus Came By”: Harry A. Blackmun’s Appointments to the United States Court of Appeals for the Eighth Circuit (1959) and the United States Supreme Court (1970) MELISSA NATHANSON Anyone familiar with Richard Nixon’s Supreme Court legacy knows about the socalled “Minnesota Twins,” the first two of Nixon’s four appointees. Warren E. Burger was sworn in as the 15th Chief Justice of the United States on June 23, 1969. Harry A. Blackmun became an Associate Justice a year later, on June 9, 1970. Blackmun and Burger shared a long history, having grown up within blocks of each other in the working class Dayton’s Bluff neighborhood on the east side of St. Paul. They attended the same grammar school, recited Bible verses in the same Sunday school class, and belonged to the same Boy Scout troop. Blackmun was best man at Burger’s wed­ ding. Their designation as “Minnesota Twins” shortly after Blackmun joined the Court played on the name of the American League baseball team that relocated to Minneapolis—St. Paul’s “twin city”—in 1961. But it also reflected the regularity with which Blackmun and Burger voted together during the early 1970s.1 Long active in Republican Party poli­ tics, the hard-charging Burger was and is widely credited with facilitating the rise of his lower-profile friend to the federal appel­ late bench and then to the Supreme Court.2 Burger never claimed responsibility for putting Blackmun on the Court, according to Blackmun, and Blackmun never directly disputed Burger’s role in either of his appointments.3 Instead, Blackmun usually 216 JOURNAL OF SUPREME COURT HISTORY stuck to broad generalities when describing how they came about. The key to becoming a federal judge, he said, was to “be on the corner when the bus comes by.”4 He quipped that at least a dozen people claimed indivi­ dual responsibility for putting him on the Supreme Court, repeating a pattern he first observed a decade earlier when “at least twenty people” took individual credit for his appointment to the Eighth Circuit Court of Appeals.5 This article seeks to present a richer account of how Blackmun’s personal and political capital helped make the unassuming Minnesotan a judge and then a Justice. In early 1959, Eighth Circuit Judge John B. Sanborn, Jr., and Burger, then a judge on the Court of Appeals for the District of Co­ lumbia Circuit, together brought Blackmun to the attention of the Justice Department as the best candidate to fill Sanborn’s seat upon his contemplated retirement. Once the no­ mination was made, Blackmun’s association with Burger almost prevented him from getting a hearing before the Senate Judiciary Committee because the junior Senator from Minnesota, resentful of Burger for having accused him of protecting subversives in government, refused to turn in his blue slip until he had time to investigate the relation­ ship between Blackmun and Burger. It was Blackmun’s surprisingly large and robust Minnesota network of professional and personal relationships that jump-started his stalled nomination when the window for judicial confirmations was about to slam shut in the run-up to the 1960 presidential election. Ten years later, a colleague of Black­ mun’s on the Eighth Circuit, Judge Pat Mehaffy of Little Rock, chartered a beneath -the-radar “southern strategy” that helped deliver Blackmun safely onto the U.S. Supreme Court after Nixon’s first two nominees for the seat vacated by Associate Justice Abe Fortas—Southerners both— were defeated in the Senate. The Road to the Court of Appeals for the Eighth Circuit Late on a Friday afternoon in early November 1958, Harry A. Blackmun, resi­ dent counsel at the Mayo Clinic in Roche­ ster, Minnesota, drove up to St. Paul to visit his former boss.6 Twenty-six years had gone by since Judge Sanborn, newly appointed to the Eighth Circuit, had hired Blackmun as his law clerk. In the depths of the Great Depression, Blackmun had returned home from Harvard Law School without a job and without any immediate prospect of getting one.7 Sanborn had thrown him a lifeline, launching him on a course to partnership...