Democratic Justice, page 26
The next morning while Hill was having breakfast, Frankfurter phoned him before he set off to see the justice and, at the committee’s request, reminded Hill of a few prejudicial statements by District Attorney Katzmann in the record. Less than an hour later, Hill and his fellow lawyers arrived at Brandeis’s summer home in Chatham. Dressed in knickers and a cap and having just finished breakfast, Brandeis was waiting for them on the porch. He would not let them in the front door. “I know what you are here for,” Brandeis said, “and I can’t take any action at all.” After a three-minute conversation, Hill began to leave and informed a Boston Herald reporter that Brandeis disqualified himself because of “personal relations with some of the people interested in the case.”
Hill refused to give up. He and Frankfurter had already determined where to go next—to a remote island off the coast of Maine to find Justice Harlan Fiske Stone. Hill left Chatham in a hurry. At noon, his co-counsel phoned from Plymouth and confirmed the plan. Frankfurter advised them to “skillfully weave in” New York and British cases from Frankfurter’s book and to remind Stone that the evidence of Judge Thayer’s prejudice had not been available for seven years. Flattery was also important because Stone was “a vain man.” From Chatham, Hill drove through Boston, the North Shore, New Hampshire, and southern Maine late into the night. At 2:00 a.m., he arrived in Rockland, Maine. After staying overnight, he took the ferry from Rockland to Stonington on Deer Isle, then chartered a fishing boat to Isle au Haut. At 9:00 a.m., he arrived at Stone’s summer home and spoke with the justice for an hour and fifteen minutes. Stone, however, also denied relief. An exhausted Hill returned to Searsport, Maine, and told his office: “Nothing else could be done.” He spent the night in Portland, Maine.
With hours before the executions, new lawyers injected themselves into the case and tried things Frankfurter and Hill had dismissed as foolish. One lawyer wired Chief Justice Taft in Port au Pic, Quebec, and President Coolidge in South Dakota and offered to fly a plane to see them. At 9:00 p.m., another lawyer visited Justice Holmes hoping the third time would be the charm. The answers, however, were the same.
Exhausted from months of rallying members of his liberal network to persuade Governor Fuller to commute the sentences, Frankfurter defended the behavior of Holmes and the other judges. He agreed with Holmes’s distinction between a sham trial dominated by a mob and a trial and appeals process of six years before a prejudicial judge. He could not take any more of Gardner Jackson’s criticism of Holmes for refusing to intervene. Jackson, echoing other nonlawyers on the Sacco-Vanzetti Defense Committee, complained that “it is a most awful situation where your legal system will not insure moral demands; that is what leads to revolution.” Frankfurter, who believed in procedural fairness yet in the independence of state courts, was having none of it: “Now don’t talk to me about that because I have had to listen to my wife all day. I can shut you up but not her.”
The morning before the executions, the Frankfurters boarded an 11:00 a.m. train from Duxbury to Boston. Felix agreed to advise the defense committee but refused to take any legal action. That night, Felix and Marion walked the streets of Beacon Hill with a sympathetic friend. At 12:19 a.m., they heard the news on the radio: “Sacco gone, Vanzetti going!” Marion did not, as reports suggested, collapse and nearly hit the pavement. For many weeks, however, she was deeply depressed. It did not help matters that her psychiatrist, Dr. Salmon, had died on August 13 in a boating accident. Felix arranged for her to co-edit Sacco and Vanzetti’s jailhouse letters for publication. She made “very sensitive judgments” about editing and arranging the letters and wrote the introduction. The project brought her back to life. For once, her indefatigable husband was badly in need of a rest. “To the end, you have done all that was possible for you,” Brandeis wrote him. “And that all was more than would have [been] possible for any other person I know. But the end of S.V. is only the beginning. ‘They know not what they do.’ ”
THE PURITANICAL REACTIONARIES of Old Boston knew exactly what they were doing. Angry with Frankfurter over the Sacco-Vanzetti affair, they tried to drive him from the law school. They claimed that he had stalled the school’s $5 million endowment campaign. In fact, only a few people pulled pledges totaling $2000 to $3000. Philanthropist Julius Rosenwald responded with a $10,000 pledge for a Frankfurter-directed publication fund. Old Boston also spread lies that Frankfurter had been secretly on the Sacco-Vanzetti Defense Committee payroll. Frankfurter refuted the allegations by writing a history of his involvement in the case yet neglecting to mention the payments from Brandeis. Judge Mack defended Frankfurter at a September 27 meeting before the Harvard Board of Overseers, joined by an unlikely ally—President Lowell. In the name of academic freedom, Lowell absolved Frankfurter of any wrongdoing. After the meeting, Mack reassured the law school’s intimidated and fearful dean, Roscoe Pound, that “nothing further will be done.”
Frustrated with the tepid support from Pound, Frankfurter went on the offensive against Lowell. He thought Lowell’s performance was disgraceful: the secret investigation and interviews, the dismissive attitude toward Thompson’s argument, and the report’s factually unsupported conclusions. As lawyer John Moors said of his former Harvard College classmate, “Lawrence Lowell was incapable of seeing that two wops could be right and the Yankee judiciary could be wrong.” Frankfurter believed that if his book had been as sloppy with the evidence as Lowell’s report, he would have been driven from the legal academy. An unrepentant Frankfurter made it clear to Pound that he would not resign because of pressure from Lowell or anyone else: “When people ask me, ‘Do you plan to resign?’ I say to them, ‘Why should I? Let Mr. Lowell resign.’ ”
Not able to get Frankfurter to leave on his own accord, Lowell blocked as many of Frankfurter’s law faculty hires as he could, especially if the applicant was Jewish. Lowell’s first victim was Nathan Margold, a former student whose life story was eerily similar to Frankfurter’s. A Jewish immigrant from Romania who arrived in America at age two and graduated from City College, Margold had finished fifth in his Harvard Law School class and clerked for Learned Hand. He joined Emory Buckner in the U.S. attorney’s office before leaving for a one-year tryout at the law school as an instructor. Margold received high marks as a teacher of criminal law and insurance and co-edited Joseph H. Beale’s casebook on criminal law. In February 1928, the law faculty voted to make Margold an assistant professor. Lowell, however, vetoed the appointment before it could go to the Harvard Corporation. Pound, who had not voted for Margold as an instructor because his appointment would prevent the school from hiring other Jews, refused to confront Lowell. The president’s conduct outraged Frankfurter and other faculty members; a committee of professors appealed to Lowell to reconsider to no avail; Frankfurter knew the real reason why Lowell had rejected the Margold appointment—“simply because he was a Jew.”
A few months after the Margold affair, Lowell attempted to deny James Landis’s promotion to full professor by offering the professorship to someone else. Few could match Landis’s academic or scholarly record. In late 1927, Harvard University Press had published Frankfurter and Landis’s series of law review articles as a book, The Business of the Supreme Court. At the end of the 1928 and 1929 Supreme Court terms, they published new installments. Frankfurter and Thomas Reed Powell successfully fended off Lowell’s efforts to deny Landis a professorship. For nearly twenty-five years, however, Frankfurter was the law school’s only tenured Jewish professor, partly by accident but mostly by Lowell’s design.
Frankfurter’s criticism of Lowell continued. On October 4, 1927, the New Republic hosted a dinner in New York City to keep the cause of Sacco and Vanzetti alive and to honor those who had worked so hard on their behalf. Defense counsel spoke; Thompson moved the crowd with his impassioned faith in the pair’s innocence; Hill explained he was simply doing his duty and was “revolted” by continued criticism of Lowell and the report. Frankfurter buoyed the spirits of the literary crowd including Dorothy Parker, Heywood Broun, and Edmund Wilson by rebuking Hill for defending Lowell. Frankfurter attacked Lowell’s report as “an obstruction to a free inquiry into this case,” and urged that the obstruction be “removed” by continuing to critique the report.
In his final appeal to public opinion, Frankfurter made his most enduring contribution to the Sacco-Vanzetti case by spearheading the publication of all six volumes of the record. He and Thompson discovered that much of the Lowell committee’s investigation, particularly Thompson and Ehrmann’s closing argument, was conveniently not recorded or transcribed. Frankfurter relied on Bernard Flexner, C. C. Burlingham, Emory Buckner, and Raymond Fosdick to recruit prominent members of the bar including Newton Baker, John W. Davis, Charles Nagel, and Elihu Root, Sr., to serve as the volume’s editors and to solicit contributions from philanthropists John D. Rockefeller, Jr., and Julius Rosenwald to cover much of the $30,000 publication costs. Frankfurter kept his name out of it.
Ultimately, Frankfurter hoped the six published volumes of the Sacco-Vanzetti record would persuade people, as he had believed, that the two men were innocent or at the very least could not have been convicted on the basis of the evidence presented at trial. He refused to rest until copies of the record were “in every library in the world.” He educated the nativist sculptor Gutzon Borglum about Sacco and Vanzetti and inspired him to create a bas-relief of the two men. One day, Frankfurter hoped to write the definitive history of the case and kept annotating his 1927 book and updating his files. Aside from defending his motives for writing the book or correcting the historical record, he never participated in another rally or public meeting or wrote about the case. He believed his book and the trial record spoke for themselves. Frankfurter’s book, as well as a subsequent account co-authored by his Harvard law colleague Edmund M. Morgan, concluded that Sacco and Vanzetti had not received a fair trial. Historians continue to debate Sacco and Vanzetti’s guilt or innocence, with some claiming that Sacco was guilty but not Vanzetti.
Everything about Frankfurter’s involvement in the Sacco-Vanzetti case epitomized his philosophy about the role of courts in a democratic society. He believed that everyone was entitled to fair procedures, not fair results; he believed in a government of laws, not of men. He blamed District Attorney Katzmann and Judge Thayer for rigging the trial. He defended Holmes and Brandeis for not staying the executions and was disturbed upon learning about a nighttime guard at Holmes’s summer residence and that Brandeis was receiving abusive letters. He regarded both justices as heroes. Like Holmes and Brandeis, Frankfurter believed in a limited role for the Court in all but the most egregious state criminal cases. He meant what he said in criticizing the Taft Court that there was a price to be paid for federalism.
An opponent of capital punishment, Frankfurter believed that the best way to stop an execution was through political pressure on the governor to pardon the two men or commute their sentences rather than relying on an inherently conservative Supreme Court. He had been vindicated in the past. His Mooney report had led to the commutation of Mooney’s death sentence to life in prison and eventually a pardon. He had signed the pardon petition of Jacob Abrams (Harding had pardoned Abrams and his co-defendants contingent on their deportation to Russia); he had praised New York governor Al Smith for pardoning Benjamin Gitlow in December 1925; and he had called for a pardon of Anita Whitney in the New Republic (the governor of California had pardoned her in June 1927). The pardon for Sacco and Vanzetti never came. All along, Frankfurter expected Governor Fuller to stop the executions and at the very least to commute their death sentences to life in prison. The governor listened to the wrong people and could not overcome his biases that “two wops” could be right and President Lowell could be wrong. The outcome was a product of Old Boston’s puritanical self-righteousness, insular prejudice against two Italian immigrants, and peculiar animosity toward Frankfurter himself.
As emotionally scarring as the Sacco-Vanzetti episode was for Frankfurter, he emerged from it with an unshaken belief in fair procedures and the democratic political process as the best ways to achieve social justice. Elections and electoral politics, he learned time and again, mattered most.
CHAPTER 13
The Most Useful Lawyer in the United States
A frequent radio listener, Frankfurter likely tuned into the 1928 Democratic National Convention in Houston on the evening of June 28 to hear his friend from the War Department and War Labor Policies Board, Franklin D. Roosevelt. They had not been in touch in years. Roosevelt had congratulated Frankfurter on his marriage to Marion in December 1919; Frankfurter had written Roosevelt in January 1921 after Roosevelt’s failed vice-presidential bid and again after a bout with polio eight months later permanently paralyzed Roosevelt from the waist down. At the 1924 Democratic National Convention in New York, Roosevelt had returned to the national stage to nominate New York governor Al Smith for the presidency. Four years later, in a stirring speech written for the national radio audience, he again nominated Smith for the presidency and proclaimed him “the Happy Warrior.” For twenty-five minutes after Roosevelt finished, Democrats in Sam Houston Hall waved their signs and roared with approval. Smith captured the Democratic presidential nomination on his third try; Roosevelt began his return to public life.
During the spring and summer of 1928, Frankfurter worked tirelessly to elect Smith to the White House and reentered the orbit of Franklin Roosevelt. Sooner than most people, he recognized Smith and Roosevelt as the present and future of the Democratic Party and the Democratic Party as the future of America’s liberal democracy.
Frankfurter viewed the Republican nominee, Herbert Hoover, as a continuation of the materialism, greed, and corruption of the Harding and Coolidge administrations. During the Great War, however, there was no one Frankfurter had admired more than Hoover, the head of the U.S. Food Administration who had fed the starving people of Belgium and all of Europe. After Wilson’s failure in Paris, Frankfurter looked to Hoover as the country’s next great leader. Instead, Hoover joined the Harding and Coolidge administrations as secretary of commerce and, in Frankfurter’s view, failed to speak out about the Teapot Dome scandal and the corruption in the Harding Justice Department. Frankfurter also believed that Hoover’s technocratic calls for increased efficiency of production ignored the detrimental effects of industrialization on American workers. “It is highly revealing that in the field of his greatest competence he has seen merely the technological and not the social significances,” Frankfurter wrote Lippmann in June 1928. Frankfurter faulted Hoover’s 1922 book, American Individualism, for relying on abstract concepts of “capitalism” and “individualism” rather than addressing the role of the government in regulating the economy and creating an industrial democracy. “I think the vapidity and ineptitude and errors (demonstrable errors of fact) in that book are a good index to his social philosophy because I think they really point the direction of his mind,” Frankfurter wrote Lippmann.
Returning to Duxbury with Marion in early July, Frankfurter pressed Lippmann not to absolve Hoover of the corruption in the Harding administration. He also urged Lippmann to hold Hoover accountable for the Coolidge administration’s water-power policy that allowed big business to exploit public resources. Lippmann agreed and predicted, as Brandeis had, that a dip in the stock market presaged a major crash. The justice told Frankfurter that Smith “should be able to beat” Hoover.
During the 1928 campaign, Frankfurter and Lippmann joined forces for one of the last times behind Smith’s candidacy. Four years earlier, they had clashed when Frankfurter supported La Follette and Lippmann endorsed John W. Davis. The 1928 election united them behind the idea of a pro-worker and pro-farmer Democratic Party. They tried to persuade progressives in both political parties to vote for Smith.
Smith’s humble origins, extolled by Roosevelt in his nominating speech in Houston, presented some political challenges. The four-time governor had grown up on the Lower East Side and risen through the ranks of the Tammany Hall political machine. He was a “wet candidate” who opposed Prohibition. And, as the son of an Irish mother and German Italian father, he was trying to become the nation’s first Catholic president.
Prohibition was Smith’s Achilles’ heel. Soon after his nomination, he had caused an uproar by sending a telegram to the convention calling for Prohibition to be enforced by the states rather than the federal government. Dry Democratic voters were outraged. Roosevelt, who blamed Lippmann for encouraging Smith to send the telegram, believed that the columnist had done “more harm to Al Smith’s candidacy than all the Republican newspapers in the United States put together.”
The Tammany Hall issue was the easiest to confront. Frankfurter encouraged Lippmann and the World to investigate the Smith administration’s record: “If Tammany left no trace or trail in Albany during Al’s governorships, the argument becomes a false bogey.” He suggested the newspaper compare the lack of corruption in Smith’s administration with “the Harding saturnalia and Coolidge-Hoover indifference.” Thanks to Frankfurter, Lippmann and the World were not the problem.
