Democratic Justice, page 31
Frankfurter’s rejection of the solicitor generalship may have cost him the opportunity to be Roosevelt’s first Supreme Court nominee and a few years on the bench. It may have made his eventual confirmation hearings more difficult. Yet, it certainly made him a free man and free to aid the administration. And it did not hurt his relationship with the president in the slightest. “You are an independent pig,” Roosevelt joked on April 4, “and that is one reason why I cannot blame you!”
Frankfurter advised Roosevelt during a frenetic first hundred days as president. And he did it all from the outside.
CHAPTER 15
The Happy Hot Dogs
On April 5, 1933, Frankfurter received an urgent phone message from presidential adviser Raymond Moley. The new securities bill was in trouble. Could Frankfurter come to Washington? Frankfurter and Moley had clashed while working together in the early 1920s on the Cleveland crime survey. They had since made amends and reunited in 1933 to advise Roosevelt before the inauguration and during the administration’s first hundred days. Moley, along with his Columbia University colleagues Adolf A. Berle, Jr., and Rex Tugwell, formed Roosevelt’s “Brain Trust.” The Brain Trust advocated big-government solutions to the nation’s economic problems. In contrast, they viewed Frankfurter, rightly and wrongly, as a Brandeis disciple who believed in “the curse of bigness,” that anything big, whether big government or big corporations, was bad. For his part, Frankfurter rejected the Brandeis label. Describing himself as a “stark empiricist” rather than an ideologue, Frankfurter claimed that he and Brandeis did not always see “eye to eye” on socioeconomic policy. The truth is, Frankfurter was willing to do whatever worked to revive the economy and to help Roosevelt and support the administration’s federal regulatory efforts big and small. Frankfurter’s disgruntled former student Berle, as well as Tugwell, resented Frankfurter’s easy access to the president and frequent interventions in policy and personnel matters; Moley, however, admired Frankfurter’s “bubbling energy and quick intelligence” and did not feel threatened by him. With the securities bill in trouble, Moley knew that Frankfurter was the right person to call.
In a March 29 message to Congress, Roosevelt had called for a new federal securities law to restore people’s confidence in the stock market. Unfortunately, the draft of the bill submitted to the House and Senate proved to be unworkable and needed to be completely rewritten. After their April 5 phone call, Frankfurter wired Moley requesting the most recent copy of the bill and asking him to reserve rooms for three people at the Carlton Hotel. The next night, Frankfurter boarded the Federal Express overnight train to Washington and brought along two protégés: James Landis and Benjamin V. Cohen.
The brilliant yet tormented Landis joined Frankfurter on the train in Boston. In 1928, when Lowell and Pound had attempted to withhold the young scholar’s professorship in legislation, Frankfurter had fought for him. An expert in administrative law, Landis had researched state blue sky laws protecting the public from securities fraud. In March, Frankfurter had written him about the need for a federal securities law premised on disclosure along the lines of the English Companies Act of 1929. Landis had never worked as a Wall Street lawyer, but he had brains and grit. Few could match the work ethic of the 34-year-old Landis; at times, however, he was too intense and abrasive.
The shy, moody Cohen boarded the train in New York City. A Muncie, Indiana, native, he had graduated with one of the highest grade-point averages in the history of the University of Chicago Law School and had met Frankfurter in the fall of 1916 during a doctoral fellowship at Harvard Law School. After the fellowship, Frankfurter tapped Cohen to clerk for Judge Julian Mack and helped him land a wartime job with the U.S. Shipping Board. Like Frankfurter and Mack, Cohen became one of Brandeis’s Zionist converts. In 1919, he joined Frankfurter at the Paris Peace Conference as a representative of the American Zionist delegation and stayed in Europe for nearly two years to monitor Zionist affairs. Returning to the states, he worked as a Wall Street lawyer with Max Lowenthal, lost money during the stock market crash, and knew the ins and outs of the English Companies Act. He also earned the reputation as an expert draftsman. In the 1920s and early 1930s, he wrote state minimum-wage bills for the National Consumers’ League. Despite his skill as a draftsman, Cohen could be needy and difficult when things did not go his way.
Early in the morning on Friday, April 7, Frankfurter and “two thin, solemn young men” arrived at the Carlton Hotel and ate breakfast in Moley’s room. An enthusiastic Frankfurter vouched for Cohen and Landis’s ability to redraft the bill over the weekend and agreed to supervise them. After breakfast, Frankfurter and Moley left Cohen and Landis to do their work and walked a few blocks to the White House to brief the president. In the afternoon, Frankfurter conferred with legendary Texas congressman Sam Rayburn, the chair of the House Committee on Interstate Commerce, and assured him that Landis and Cohen were up to the task. That weekend Landis and Cohen holed themselves up in the Carlton Hotel. Late Saturday night, they finished a draft of a bill requiring full disclosure of the security being offered and including civil liability for misrepresentations.
Frankfurter, meanwhile, was everywhere. His friends in the cabinet wanted to speak with him about policy problems and personnel needs. On Sunday at 6:30 p.m., he met privately with Roosevelt for an hour before attending a small, informal White House supper. The whirlwind trip confirmed Frankfurter’s decision to decline the solicitor generalship. “Everyone has been after me, as tho I can move mountains,” he wrote Marion. He liked the “hopeful atmosphere” Roosevelt had created yet abhorred the feverish pace of those first hundred days. All in all, he wrote Marion, “I’m so glad we’re not in office. It would be awful & distracting beyond measure & truly not satisfying.” As he suspected, he could accomplish more from the outside.
On Sunday evening, Frankfurter reviewed Landis and Cohen’s draft in preparation for an important congressional hearing. At 10:00 a.m., he testified masterfully before an executive session of Rayburn’s committee about the revised bill. He instructed his two protégés to stay in Washington to make the bill “watertight” and to see it through the legislative process. That night, Frankfurter returned to Cambridge, promised to cover Landis’s classes and other responsibilities, and managed the situation by phone, wire, and letters. On April 12, he wired Moley: “Be assured that I am watching the work closely.”
One of Frankfurter’s responsibilities was to keep Landis and Cohen from killing each other. He worried that Cohen was likely to react to Landis’s outbursts by leaving. As a result, he brought in another prized former student, Reconstruction Finance Corporation counsel Tom Corcoran, to act as a peacemaker. Frankfurter also asked Moley to monitor the situation and to reassure Cohen about his indispensability.
The substance of the bill was foremost on Frankfurter’s mind. On April 14, he wired Roosevelt and Rayburn from Cambridge. The bill, he argued, must specify the information required for securities registration and financial disclosure. He wanted to ensure the law’s constitutionality and to prevent corporations from subverting the registration and disclosure requirements. Rayburn, who had spent five hours with the drafters over the weekend, assured him that “we are going to get out a good workable bill.” Frankfurter, in turn, dispatched Corcoran to draft a proposed committee report. He also urged friends in the Senate to delay the old version of the bill to wait for the Landis-Cohen bill in the House. Frankfurter cautioned them that the Senate bill was “partly innocuous and partly unconstitutional.” On May 1, he wrote Rayburn advising him about how to avoid unconstitutional provisions in the House bill. He reminded Moley about the importance of careful draftsmanship; he relied on RFC chair Eugene Meyer to prevent the bill from being mischaracterized as including government bonds; and he encouraged Roosevelt to put the administration’s support behind the House bill. Upon introducing the bill on the House floor on May 4, Rayburn thanked Frankfurter, Landis, and Cohen for shepherding it through the committee process. Privately, Rayburn told Cohen that the bill passed the House “so readily because it was so damned good or so damned incomprehensible.”
Frankfurter’s participation did not come without political cost in Cambridge. On May 10, Harvard president A. Lawrence Lowell summoned him to his office to admonish Frankfurter for unexcused absences from class. “You are giving the Corporation some concern,” Lowell began and repeatedly professed to be worried only about future absences. Frankfurter, who had been tipped off about the summons, explained that he was familiar with the university policy and had wired Pound several days before missing class on Monday, April 10, to appear before the executive session of Rayburn’s committee. Upon his return, he also informed Pound, the likely source of the misinformation, that he would teach a legislation seminar and conduct several doctoral examinations to cover for Landis’s prolonged absence.
Rather than get mired in faculty politics, Frankfurter warned of the dangers the Supreme Court posed to the securities bill and other pending legislation. In a Yale Review article, he described the Constitution as “flexible enough to respond to the demands of modern society” by permitting the federal government to pass securities laws and other economic regulation and the states to pass unemployment laws, minimum-wage laws, and taxes. He exposed the justices as “arbiters of social policy” and warned them against invoking the vague phrases of liberty and property in the Due Process Clause to invalidate laws simply because they disagreed with them. He conceded the Court’s role in preventing the federal government from encroaching on the power of state governments. Ultimately, however, he preferred legislative solutions. He invoked Holmes’s belief in legislatures as the “ultimate guardians” of liberty and concluded with Brandeis’s dissent describing states as laboratories of experimentation. Senator George W. Norris, a progressive from Nebraska, included Frankfurter’s article in the Congressional Record. In May, Frankfurter incorporated the ideas from his article in a national radio address with Learned Hand, “How Far Is a Judge Free in Rendering a Decision?”
By May 27, the securities bill had survived the House and Senate and a conference committee. All it needed was the president’s signature. That morning, Frankfurter and several others met with Roosevelt at the White House; Frankfurter prepared the president’s statement about the law. At noon, Roosevelt signed the Securities Act of 1933 and praised it for putting “some elementary standards of right and wrong into law.” Known as the “truth in Securities” law and premised on disclosure, the Securities Act of 1933 required public corporations to register and submit a prospectus and audited financial statements before issuing securities. The underwriter, officers, and directors who signed the registration documents could be found strictly liable for inaccurate statements. To securities lawyer Bernard Flexner, Frankfurter described it as “a really important piece of legislation, carefully drawn, however inevitably imperfect.” To Roosevelt, he credited the new securities law to the president’s leadership.
With the Securities Act of 1933 on the books, Wall Street stepped up its attacks on the law and its most prominent author. Sullivan & Cromwell lawyer Eustace Seligman wondered how Frankfurter slept at night (just fine, he replied); Frankfurter’s mentor Henry Stimson questioned the willingness of his clients to risk liability by signing disclosure forms. Responding in Fortune magazine, Frankfurter defended the Securities Act as based “on the principle that when a corporation seeks funds from the public it becomes in every true sense a public corporation.” A corporation “honestly conceived and competently administered has nothing to fear and much to gain.” To those fiduciaries who worried about the liability risk of signing financial disclosure forms, Frankfurter called for corporate leaders with more integrity “to take the place of those who shrink from responsibilities incident to the business of managing other people’s money.”
Three days after Roosevelt signed the Securities Act of 1933, Frankfurter opined on the administration’s biggest intervention in the economy—the National Industrial Recovery Act (NIRA). In a May 17 message to Congress, Roosevelt had encouraged legislators to pass the law to “put people to work” by setting industry codes establishing prices and outputs and ending the downward spiral of price wars, overproduction, and underemployment. Unlike Brandeis, who opposed the big-government program from the outset, Frankfurter conceded “this is no time for undue theorizing” and tried to help the administration make the law work. In a May 30 memorandum, he emphasized the importance not only of controlling supply and prices but also of increasing consumer demand for goods and services and adjusting wages and hours on an industry-by-industry basis so that working people have regular employment. He assisted former student Charles E. Wyzanski, Jr., in revising the labor provisions in the bill. On June 16, Roosevelt signed the NIRA into law and named as its administrator General Hugh S. Johnson. Frankfurter declined Johnson’s offer to be general counsel and succeeded in persuading him to hire Chicago lawyer Donald Richberg.
As his work on the Securities Act and the NIRA demonstrated, Frankfurter was not wedded to any theory of economic regulation other than recruiting able lawyers to draft and implement it. His eye for talent was second to none. He had been recommending lawyers for public service ever since he worked as an assistant federal prosecutor for Henry Stimson, during the Taft and Wilson administrations, and for nearly twenty years on the Harvard law faculty. He tapped Harvard Law Review editors for judicial clerkships and graduate research fellowships and preached the gospel of public service. Many recent graduates started at Wall Street law firms yet were miserable there; others wanted to go straight into government. Frankfurter’s relationship with Roosevelt and administration insiders sent his “one-man recruiting agency” into overdrive. Administration officials could not stop asking him to recommend young lawyers; Frankfurter thought it was “the most natural thing in the world. If you want to get good groceries in Washington you go to Magruder’s, or in New York to Park and Tilford, or in Boston to S.S. Pierce. If you wanted to get a lot of first-class lawyers, you go to Harvard Law School.”
Frankfurter’s former students seemed to be everywhere: Dean Acheson as under secretary of the treasury, Wyzanski as solicitor to Secretary of Labor Frances Perkins, Nathan Margold as solicitor to Secretary of the Interior Harold Ickes, William Hastie as assistant solicitor to Ickes, Corcoran at the RFC, and Cohen and Landis in administrative posts after they wrote the securities law. Frankfurter often recommended people to Moley and Roosevelt and passed on the recommendations of others. At Brandeis’s and Stone’s request, he wrote Roosevelt about retaining former Harvard Law Review editors Erwin Griswold and Paul D. Miller in the solicitor general’s office. He also praised the hiring of former students David Lilienthal on the board of directors of the Tennessee Valley Authority and John Dickinson as assistant secretary of commerce. More often than not, Frankfurter’s connection to former students found its way into the newspapers. After Wyzanski’s hiring in April, the New York Daily News correctly attributed it to Frankfurter and warned: “Politicians take note.”
Frankfurter’s hires were the talk of the business community. On June 24, 1933, Kiplinger Washington Letter noted that two of the nation’s most prominent Jews, Brandeis and Frankfurter, “have tremendous intellectual influence, exercised through intellectual protégés in strategic positions throughout government service.” A week later, the publication remarked that “[m]ore Jews occupy influential positions in relation to [the] Roosevelt administration than in any previous administration” and attributed many of them to Frankfurter, “whose ideas influence a score of aggressive young lawyers here-and-there in government service,—some Jews, some not.” After a few weeks of criticism, Kiplinger defended itself that it “dealt factually with” a “whispered question” and remarked that Jews “are doing exceedingly good jobs.” By early 1934, however, people began referring to the New Deal as the “Jew Deal” and to Frankfurter’s former students as “Happy Hot Dogs.” A playful take on Frankfurter’s first and last names by New York Herald Tribune columnist Mark Sullivan, the Happy Hot Dogs label took on a derogatory and anti-Semitic cast.
THE ANTI-SEMITISM directed at Frankfurter paled in comparison to reports of violence against Jews by Adolf Hitler’s Nazi Party in Germany. On March 28, 1933, Frankfurter received an unsigned telegram at his office from Bratislava, Czechoslovakia, by way of Vienna, Austria. The writer described “unbelievable widespread brutalities” in Germany and predicted a “whitewash” because of “fear of threatened reprisals” and government censorship. The writer warned of similar violence against Jews and Communists in Austria and asked Frankfurter not to make direct contact “unless urgent necessity and then most guardedly use my name only in greatest confidence because of Viennese friends.”
The anonymous author of the telegram was Ruth Mack Brunswick, the only child of Judge Julian Mack and a psychiatrist living in Vienna and collaborating with Sigmund Freud. She used to be married to a close friend of the Frankfurters, Boston cardiologist Herrman Blumgart, and in Vienna she had married American composer Mark Brunswick. The Brunswicks were important contacts for Frankfurter, who was worried about his uncle Salomon in Vienna and Jewish academics who had lost their jobs at German universities.
Named the country’s chancellor in January, Hitler blamed the country’s economic depression on Jews and Communists and promoted the superiority of the Aryan race. He had preaching hatred of Jews for years and found a receptive audience, leading to widespread violence, discrimination, and economic reprisals. Hitler’s Nazi Party blamed a February 27 fire at the Reichstag, the German parliament, on the rival Communist Party. Using the fire as a pretext, Hitler persuaded President Paul von Hindenburg to invoke an emergency provision in the Weimar Constitution and to issue a decree abridging civil liberties. The Nazis won more seats in March elections and passed a law enabling Hitler to govern by decree and to begin his reign of terror against the Jews. On March 22, he established the Dachau concentration camp for political opponents. On April 1, the German government authorized a one-day boycott of Jewish store owners. Six days later, the National Socialist (or Nazi) regime passed the Law for the Restoration of the Professional Civil Service expelling all Jews and dissidents, or “non-Aryans,” from teaching, academia, and judicial or government posts. At the behest of President Hindenburg, an exception was made for people who had served in the German military during the Great War. Many German academics, Jewish and non-Jewish, lost their jobs and sought asylum in the United States. Legal and political obstacles stood in their way. In particular, the Immigration Act of 1924 established quotas by country and prevented European Jews from arriving in large numbers. The State Department, staffed with anti-Semitic officers unsympathetic to the plight of Jews in Germany, refused to relax the quotas or to facilitate visas.
