Democratic Justice, page 42
THE SYMBOLISM OF a possible Frankfurter nomination was not lost on his supporters. Alsop and Kintner observed that “the President is not the man to yield to the vulgar brutalities of race hatred or sectarian pettiness. But, presented by the leaders of the Jewish race itself, the racial argument against Frankfurter could not fail to have been more impressive.” The Nation saw the Jewish opposition as making Frankfurter’s nomination more likely: “Mr. Roosevelt is presented with a double opportunity. By naming Mr. Frankfurter he can further increase the clarity and boldness of the court, and at the same time demonstrate his faith in the survival of democratic tolerance.” Liberal columnist Heywood Broun decried the Jewish fears of anti-Semitism as “extraneous. But it also happens to be one of the vital problems which America must solve out in the open if we are to stand as a citadel against the tide of Fascism.”
The whisper campaign by Sulzberger, Morgenthau Sr., and other rich Jews outraged two of Frankfurter’s longtime friends in the press, Paul Kellogg and William Allen White. The editor of The Survey and Survey Graphic, Kellogg had known Frankfurter since a 1916 National Consumers’ League meeting in which Frankfurter led the organization’s legal defense of state minimum-wage and maximum-hour laws. In 1927, Kellogg was one of Frankfurter’s staunchest supporters in the fight for new trials for Italian anarchists Sacco and Vanzetti. Frankfurter, in turn, was a member of The Survey’s board of directors. Kellogg was angry about Jewish opposition to Frankfurter’s nomination and contacted one of the first Jewish federal judges and a longtime Frankfurter ally, Julian W. Mack. On October 5, Mack wrote the president about the Sulzberger–Morgenthau Sr. opposition “to express my complete dissent from that position.” Five days later, Kellogg wrote Roosevelt detailing the editor’s professional regard for Frankfurter and arguing that bowing to Jewish fears would “give anti-Semitism a taste of blood.” Frankfurter, Kellogg argued, would “only reinforce the Court on its liberal side.”
Kellogg sent copies of his and Mack’s letters to William Allen White. The seventy-year-old editor of the Emporia Gazette in Kansas, White had known every American president from TR to FDR, had written a biography of Calvin Coolidge, and sat on the Pulitzer Prize board. In short, White was one of the most influential journalists in the western United States. He had known Frankfurter since 1914 when he “was a young attorney who even then was known as a liberal,” had seen him in Paris in 1919, and had been corresponding with him about politics ever since. A liberal Republican, White had lobbied U.S. senators in 1916 to support Brandeis’s nomination, had encouraged Hoover to nominate Cardozo in 1932, and was determined to do the same for Frankfurter six years later. Kellogg encouraged White to write the president on Frankfurter’s behalf because “the Supreme Court is in a class by itself. And so is Felix.” After Frankfurter spoke at The Survey’s twenty-fifth anniversary dinner in New York in 1937, White remarked: “Isaiah [Brandeis], at his best, could not have surpassed Frankfurter.” Mrs. White chimed in: “It was worth while coming from Emporia just to hear Frankfurter’s extraordinary address.”
Shortly after Cardozo’s death in July, White had drafted a letter to Roosevelt endorsing Frankfurter but decided not to send it. Kellogg’s correspondence and “the big rich reactionaries, both Jew and Gentile” who had made Frankfurter “their head devil” caused White to reconsider. Earlier that year, Roosevelt had sought White’s insight about Kansas politics. In October, he wrote the president urging him to ignore the critics and fears of anti-Semitism and to nominate Frankfurter. White’s letter, his status as one of the nation’s preeminent western journalists, his faraway outpost in Emporia, Kansas, and the president’s high regard for his political acumen triggered what few of Roosevelt’s closest advisers had been able to muster in person—real insight about how the court-packing fight had affected the president’s thinking about the next nominee.
Before he wrote to White, however, the president revealed his intentions to Frankfurter.
MONDAY, OCTOBER 3, 1938, marked the beginning of the new Supreme Court term with only eight justices. Five days later, Felix and Marion rode from the New Milford, Connecticut, home of their friend Dr. Alfred E. Cohn and arrived at Hyde Park at 5:15 p.m. for their annual overnight stay at the Roosevelt estate. They had the president all to themselves; Eleanor had returned that afternoon to Washington. Marion, however, noticed that something was amiss. “There’s something constrained about the President,” she told her husband. “There’s evidently something on his mind. He isn’t natural.”
The next day after lunch, Frankfurter learned what was troubling the president. Roosevelt took him into a small study in his mother’s house at Hyde Park and said: “I want to tell you why I can’t appoint you to succeed Cardozo.” Frankfurter insisted that no explanation was necessary. The president, however, explained that he had given “very definite promises to” Democratic senators and party leaders that the next nominee would be a westerner. Frankfurter suggested Fifth Circuit judge Hutcheson of Texas; Roosevelt frowned, perhaps because Hutcheson was close to Vice President John Nance Garner, who was on the outs with Roosevelt after opposing court packing. The president asked Frankfurter’s opinion of western judges and lawyers that he and Cummings had been discussing: District of Columbia Circuit judge Harold M. Stephens of Utah; Ninth Circuit judges Albert Lee Stephens in Los Angeles, Denman in San Francisco, and Healy in Idaho; and Senator Schwellenbach. Frankfurter replied that he knew Ninth Circuit judges Albert Lee Stephens and Healy only by name and offered to read their judicial opinions and write a memorandum for the president. Roosevelt gratefully accepted the offer of assistance.
After the talk in Roosevelt’s study, the Frankfurters joined the president for a ride through the countryside. With the Supreme Court nomination business off his chest, Marion thought the president was “his old self again.” Roosevelt warned the press not to read too much into Frankfurter’s visit or it would find itself “out on a limb.” The visit, however, fueled more speculation. The conservative Chicago Tribune predicted that Frankfurter had the “inside track” over a westerner or a Catholic; the New York Herald Tribune came to the opposite conclusion citing “circles close to the summer White House.” In truth, Frankfurter’s chances of succeeding Cardozo were at their lowest ebb.
Five days after Frankfurter’s visit to Hyde Park, Roosevelt revealed to William Allen White the real source of the trouble: the president’s arguments for increasing the number of justices from nine to fifteen included making the Court more “representative” on the basis of age, outlook, and geography. In an October 13 letter addressed “Dear Bill” and marked “private and confidential,” the president explained his pledge to make the Court more geographically diverse as “a problem not so much of politics but of principle.” He reminded White that eight of the nine justices, including Pierce Butler from St. Paul, Minnesota, had been born east of the Mississippi River and left two-thirds of the country unrepresented. The president vowed not to nominate another justice from the same judicial circuit. With Hughes and Stone from New York and Brandeis from Massachusetts, Frankfurter’s nomination exacerbated the geographic imbalance. Roosevelt concluded: “Sorta tough ain’t it!”
Another liberal western candidate entered the mix after Election Day—Michigan Governor Frank Murphy. Murphy was criticized for not ordering the removal of United Auto Workers engaged in a sit-down strike in early 1937 at a General Motors plant in Flint, Michigan. Despite Corcoran and Cohen’s efforts, Murphy lost his reelection bid. The lame-duck governor was considered the “best western Catholic” for the Cardozo vacancy. On Election Day on November 8, New Deal Democrats had fared badly. Corcoran’s attempted “purge” of disloyal Democrats resulted in the defeat of only a single legislator, Rep. John J. O’Connor of New York. Five days after the election, the New York Herald Tribune indicated that Corcoran was pushing for Murphy and that it was a two-man race between Murphy and Senator Schwellenbach; Frankfurter was running third. The Washington Evening Star predicted fierce Senate opposition to Murphy’s nomination as “too radical” and because of his pro-labor sympathies during the sit-down strike. The Washington Post reported that “left wing New Dealers” preferred Murphy, and the “dark horse” candidate was Judge Harold Stephens.
With Murphy’s name resurfacing, Cummings sought to press Stephens’s candidacy. During a private lunch with the president on November 18, the attorney general once again reviewed the candidates. He said Judge Healy was too young and inexperienced and Judge Albert Lee Stephens could not be chosen over his Ninth Circuit colleague Judge Denman. Roosevelt asked if there were any deans of West Coast law schools; Cummings replied that they were all too old. The choice came down to Denman or Harold Stephens, and Denman was too old. The president “did not seem to be particularly enthused” about them or San Francisco lawyer Maurice Harrison.
Cummings made another pitch for Harold Stephens: he “could be credited to Utah” and was “the right age, had fine educational equipment, great industry, fine character, and was widely respected.” Roosevelt said “the country would not be very much stirred” by a Stephens nomination. Cummings, with an obvious allusion to Frankfurter, responded: “I know why you are not enthused about Harold, he is not colorful enough for you, but it has been my experience that it is a rare thing to find a man who is both colorful and safe, and that most of the colorful people get into trouble at one time or another.” Roosevelt was amused, and, according to Cummings, somewhat impressed by the argument. In the attorney general’s mind, the choice was between Denman or Harold Stephens.
Roosevelt eliminated some western candidates thanks to help from Frankfurter. The day before Cummings’s meeting with the president, Frankfurter had sent Roosevelt memoranda about two Ninth Circuit judges, Albert Lee Stephens of Los Angeles and William Healy of Idaho. Roosevelt also had asked about a Montana judge, but Frankfurter could not figure out which one “for I can hardly believe that you have either Judge [James Harris] Baldwin or Judge [Charles Nelson] Pray in mind.” Frankfurter’s views of the two Ninth Circuit judges were not much higher. Albert Lee Stephens wrote opinions that were “well conceived and lucidly expressed, but devoid of distinction” and showed no “evidence of learning.” Healy had been on the court only a year and a half. His opinions, Frankfurter wrote Roosevelt, were “lucid” and free of “legal jargon,” yet revealed “no real distinction of utterance and no manifestation of learning in the service of wisdom.”
The Supreme Court vacancy was not on Frankfurter’s mind because of tragic events in Germany and his native Austria. A November 9 pogrom, triggered by the assassination of a German diplomat by a Polish Jewish refugee, lasted for two days and littered the streets with so much glass from Jewish-owned stores it became known as Kristallnacht, the night of broken glass. Nazi storm troopers burned and looted more than 7000 Jewish-owned shops, 200 synagogues, and 29 department stores. They sent 20,000 Jewish men to concentration camps and executed those who resisted. The violence stopped only because Hermann Göring preferred to expropriate Jewish property and assets rather than destroy them. Not even the Sulzberger-owned New York Times could ignore or downplay the death and destruction; the story ran on page one.
“Even if I would want to, I couldn’t keep the German situation out of my mind,” Frankfurter wrote Harold Ickes. “It’s being kept there to the exclusion of almost all else by the uninterrupted impact of letters and visitors concerned with the awful situation.” He lauded Ickes for resisting pressure from the State Department and refusing to sell helium, which was needed to power grounded German airships carrying passengers but potentially munitions, to the Nazi regime. A regular White House visitor, Ickes remained confident that Frankfurter was “in the lead” for the Cardozo vacancy. Ickes also heard rumors that two justices, Brandeis and possibly Butler, might resign. If Butler resigned, Ickes speculated that Roosevelt would nominate Murphy “since both Butler and Murphy are Catholics and come from the Middle West.” The source of the rumor about the justices resigning likely was the person pushing hardest for Frankfurter’s nomination, Corcoran.
In October, Corcoran again circulated the story that Frankfurter had opposed the court-packing plan. “We who were fighting the bill took pains to find this out,” a source told the New York Times. “There is not the slightest doubt about it.” The truth about Frankfurter’s feelings, judging by his public silence and private assistance to Roosevelt, was more complicated. Years later, Corcoran characterized Frankfurter as having been involved “up to his neck.”
Corcoran and his allies continued to leak that Brandeis would resign so that Frankfurter could replace him. The rumors became so persistent that columnist Raymond Clapper wrote about the “pressure” on Brandeis to retire to “make way” for Frankfurter and described Brandeis’s friends as “incensed.” The pressure, Clapper wrote, came from “the Corcoran-Cohen group . . . protégés of Mr. Frankfurter who long have dreamed that their idol would reach the Supreme Court.” Alsop and Kintner denied that the clamor for Brandeis’s retirement came from “the New Deal left wing,” reiterated that they, “like the members of New Deal left wing, have a deep and reverent admiration” for Brandeis, and “merely sought to record a choice offered to him by the plight of his race, to alleviate which would be the only reason for his leaving the court.” Brandeis, who had advised Roosevelt in October and November about Palestine and Jewish refugee issues and corresponded with Frankfurter about possible western candidates for the Cardozo vacancy, revealed no intention to retire. Roosevelt “will eventually remake the Court,” Frankfurter predicted to Harold Laski. “No—L.D.B., I’m confident will not resign!”
At 11:00 a.m. on November 26, friends and admirers gathered in the Supreme Court courtroom for a memorial service for Benjamin Cardozo. Solicitor General Robert Jackson, the chairman of the proceedings, opened the meeting by reviewing Cardozo’s career. New York lawyer John Lord O’Brian presided over the meeting. Former attorney general William Mitchell, Judge Irving Lehman, lawyer George Wharton Pepper, and Frankfurter’s friends Dean Acheson and Monte Lemann of New Orleans paid tribute to Cardozo. On doctor’s orders, Frankfurter stayed home because of chronic back trouble. Back in Cambridge, he drafted the Supreme Court bar’s memorial resolution to Cardozo. That same month, his book, Mr. Justice Holmes and the Supreme Court, came out. As Frankfurter paid tribute to Cardozo and Holmes, the battle for their seat on the Court continued.
St. Louis Times-Star editorial page editor Irving N. Brant promoted his preferred western candidate, University of Iowa law dean Wiley Blount Rutledge. A native Iowan who had worked for several of the state’s newspapers before moving to St. Louis, Brant wrote a 1936 book, Storm over the Constitution, about the New Deal constitutional crisis. The book, which Roosevelt had read while on a battleship in South America, may have informed his decision to propose the court-packing plan. Since 1935, Brant had been corresponding with Frankfurter and Roosevelt about the Supreme Court; both men held Brant’s editorials in the highest regard. And in late 1937, Brant moved to Washington to write a multivolume biography of James Madison, worked one day a week for the Star-Times, and moonlighted as a consultant to Ickes and speechwriter for Roosevelt. Thus, Brant’s recommendation carried great weight.
Back in 1936, Brant had encouraged Roosevelt to nominate Rutledge to the Court when a vacancy arose, and the president had responded by asking Brant to prepare a dossier. During the next few years, Brant read Rutledge’s speeches and writings about constitutional law and corresponded with Rutledge. After Cardozo’s death, however, Brant did not push for Rutledge “because the tumult over the court-packing plan” and the Iowa law dean’s public support for it “made his nomination impossible.” Roosevelt revealed the “pressure was heavy” to nominate a westerner. Brant counseled the president to “disregard the western factor” and nominate Frankfurter. Yet he lobbied for Rutledge as a second option and sent his Rutledge dossier to the president. Brant knew that one of Roosevelt’s “closest advisers” was backing Rutledge as a liberal western alternative to Frankfurter and that “the western senators who are crying for a western appointment are mostly men who want a conservative named. I think they are trying to block the appointment of Frankfurter . . .” Brant, who kept Rutledge apprised of the political fight, believed that “Cummings and Farley talked geography, but there is just a faint touch of anti-Semitism in both of them.”
Roosevelt was intrigued by Rutledge even as Cummings and Farley continued to advocate for a western candidate, preferably Judge Harold Stephens. On December 9, the Baltimore Sun reported that Stephens “appeared” to be in the lead. Gossip columnist Walter Winchell predicted that Frankfurter would not get nominated until Brandeis retired and that the Cardozo vacancy would go to Stephens.
At 9:00 p.m. on December 15, the entire cabinet assembled at the White House for the annual diplomatic reception. Roosevelt led the cabinet from the main dining room to the outer hall. The band played “Hail to the Chief.” More than 1000 people proceeded through the receiving line. Farley was not there, but Cummings was. After the reception ended at 10:10 p.m., Cummings and Roosevelt discussed the Supreme Court vacancy. Roosevelt began the conversation by conceding that if Brandeis retired, “the matter would be simplified” because he could nominate Frankfurter. Cummings agreed, but with Brandeis on the bench, the Court did not need a second justice from Massachusetts or another from the East Coast. “I thought he ought to go West of the Mississippi,” Cummings said. Roosevelt concurred but could not find the right person. “How did you get along with the man I mentioned to you?” Roosevelt asked. Cummings assumed the president was referring to Brant’s suggestion of Rutledge. Cummings’s assessment was blunt: “I told him he was a fine man and a Progressive, that I did not honestly believe he rated appointment to the Supreme Court.” Roosevelt also raised Senator Schwellenbach “as a possibility.” Cummings and Roosevelt agreed that Judge Denman, who had turned sixty-six, was too old.
