Justice Blackmun’s ‘Hwegap’

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The release last week of Supreme Court Justice Harry Blackmun’s papers at the Library of Congress five years after his death are creating quite a stir in Washington and around the nation. Justice Blackmun is best known for Roe vs. Wade, the landmark 1973 Supreme Court decision that established a woman’s right to abortion. As many are discovering for the first time, however, he also played a role in other landmark cases involving the death penalty, voting rights, the Pentagon Papers and federal-state relations.

Blackmun’s opinion in Roe may seem quite liberal coming from a conservative corporate tax law expert appointed by President Richard Nixon to the High Court in 1970. But the Blackmun papers and over 30 hours of taped oral histories show how a principled, compassionate and brilliant jurist shaped his views on abortion as well as a variety of other social issues. The papers also pull back the curtain of the inner workings of the Supreme Court — one of the most mystery-cloaked institutions in Washington.

For Asian Pacific Americans, public access to the Blackmun papers had a special angle because the man talking publicly about the Blackmun legacy was a Korean American, Harold Hongju Koh.

Professor Koh, who had conducted the Blackmun oral history interviews in 1994 and 1995, was a law clerk for Justice Blackmun from 1981 to 1982. He also had served as an advisor to Sally Blackmun, Justice Blackmun’s daughter, who serves as executor of her father’s papers.

Koh is a professor at Yale Law School, and will assume the deanship there in a few months. In watching him on television last week, it occurred to me that, while he is American born, raised and educated, his attitude about preserving the legacy of Blackmun was very much in the Asian tradition of venerating elders and celebrating an accomplished long life.

This makes perfect sense. Koh’s own parents, father Kwang Lim Koh and mother Hesung Chun Koh, were leaders in the celebration and preservation of Korean American culture. Fifty years ago, they cofounded New Haven, Conn.-based East Rock Institute, where Hesung Chun continues as its chair today. For many years, Koh’s parents held conferences designed to preserve Korean American culture among the children of Korean newcomers to this country.

To honor their parents for their efforts, Koh and his siblings created a book of essays in the 1980s celebrating the hwegap (60th birthday) of each of their parents. Like a festschrift, a volume of learned articles by colleagues produced when a scholar retires, the Koh hwegap books had multiple purposes: to celebrate the honored person, to preserve the history of a family, and to advance knowledge in the fields of the honoree’s interest.

In the ancient Confucian tradition, few people reached age 60, so that age came to represent a time where five 12-character zodiac cycles had been completed and where a person found inner peace by having lived what they considered a “complete” life cycle.

While Blackmun had been 86 when he retired from the Supreme Court and 91 when he passed away in 1999, the celebration of his life that Koh and the Blackmun family had orchestrated last week had the reverent overtones of a hwegap ceremony.

Another interesting APA footnote to the opening of the Blackmun papers at the Library of Congress is that Koh was treated as the ultimate insider, the man with access to the papers of a justice of our nation’s Supreme Court. Just one generation before, his father, Kwang Lim Koh, had earned comparably stellar legal credentials, but was part of a generation that was not allowed to achieve its full potential as lawyers or as members of the legal academy.

Koh’s father and mother taught an East Asian Law and Society seminar at Yale Law School for three years from 1964 to 1966, becoming the rare husband-wife team to teach anywhere, let alone at one of the nation’s foremost legal institutions.

The Koh seminar was one of the first courses that brought Asia into American law schools. According to Hesung Chun , there were two other contemporaneous courses being taught on Asian Law in American law schools in the mid-1960s, a Chinese law seminar at Harvard and a course on Tokugawa-era Japanese law at the University of Washington Law School.

Despite law degrees from Seoul National University and Harvard Law School, as well as a Ph.D. in history, Kwang Lim was not able to get a tenure-track position teaching law in the United States. He was allowed to be a full-time lecturer with minimal benefits and no pension at a school in Boston. He and others who were not American citizens had a hard time getting work in law or legal education in the days before the civil rights movement, before affirmative action laws created a more level playing field.

Appointed to the Court by President Nixon in 1970 as a “law and order” conservative, Blackmun started his tenure as a strong supporter of the death penalty. By 1994, shortly before his retirement from the High Court, he wrote in one of his opinions that “the death penalty experiment has failed. I no longer shall tinker with the machinery of death.”

Similarly, the legal profession as a whole has evolved in many ways in the last few decades. While Kwang Lim Koh did not live long enough to take full advantage of these changes, his son Harold has. And thanks to the opportunities afforded a bright young scholar by a fair-minded Justice like Harry Blackmun, we may someday be able to celebrate the hwegap of Justice Blackmun’s former law clerk by calling him Justice Koh.

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