Democratic Justice, page 44
ROOSEVELT’S ADVISERS LEARNED about the nomination over the newswires. Cummings and Farley were shocked. Stephens blamed Corcoran. The liberal New Dealers broke into celebration. At 2:00 p.m., Corcoran interrupted a lunch at the Interior Department between Ickes and Murphy. Corcoran was carrying two magnums of champagne. Hopkins, Jackson, SEC chairman Douglas, Hopkins aide David Niles, Missy LeHand, and Corcoran’s secretary Peggy Dowd joined the party. They viewed Frankfurter’s nomination as the culmination of the court-packing fight. “We were all very happy and I noted that Bob Jackson was particularly joyous,” Ickes wrote. “He told us that now there would be a man on the Supreme Court before whom he could argue a case in the knowledge that his argument was being listened to with sympathy and understanding. All of us regard this as the most significant and worthwhile thing that the President has done. He has solidified his Supreme Court victory, and, regardless of who may be President during the next few years, there will be on the bench of the Supreme Court a group of liberals under aggressive, forthright and intelligent leadership.”
Another New Deal insider, columnist Raymond Clapper, saw challenges ahead. He understood the importance of Frankfurter’s role as Roosevelt’s unofficial policy adviser and as a talent scout placing friends and former students throughout the administration. In his column, he predicted that it would be difficult for the law professor-turned-justice to sever those ties: “Even though Frankfurter will be busy with his Supreme Court duties, it is not unlikely that Roosevelt will call frequently upon him for private counsel, even more so than in the past because Frankfurter will now be conveniently at hand. . . . Frankfurter’s ripened judgment and balanced liberalism are much needed by Roosevelt in this period when the tide is running against him and when he seems to be groping for bearings. In fact he is as much needed at the White House as on the Supreme Court, perhaps more so at the moment.”
The 56-year-old Frankfurter faced a daunting set of expectations. First, he was billed as the Court’s liberal savior. The New Dealers expected him to go toe-to-toe with Chief Justice Hughes and to lead the Court’s liberal wing for decades. They underestimated how riven with conflict the Court was, how the issues had changed since the court-packing fight, and how contentious those new issues would be. Second, he continued to advise the president and friends and former students in government. He liked being an administration insider. In many ways, he brought this role upon himself and even cultivated it. The dual burdens of liberal leader and policy adviser were too much for any new justice. Frankfurter’s “balanced liberalism” was no match for the awaiting political maelstrom. It took all of Frankfurter’s facility and skill, as well as assistance from members of his liberal political network, just to survive his unprecedented Senate confirmation hearings.
CHAPTER 20
The Oddest Collection of People
The day after Roosevelt submitted his name to the Senate, Frankfurter wired the president: “Says Marion: ‘I hope that you’ll be on the stand for days so that I can learn something about you.’ ” Marion expected her husband to have to testify; she could not have expected that his Senate appearance would change the Supreme Court nomination process forever.
Frankfurter’s confirmation hearings were a public spectacle unlike any the country had ever seen and revealed rising anti-Communism, anti-Semitism, and anti–New Deal sentiment in late 1930s America. Opponents of Frankfurter’s nomination charged him with being a Communist and disloyal alien who had infiltrated the highest reaches of the United States government. The previous year, Congress had established the Special Committee to Investigate Un-American Activities. Referred to as the Dies Committee after its chairman, Representative Martin Dies, Jr., of Texas, it was officially named the House Un-American Activities Committee (HUAC). On December 8, 1938, a retired army colonel had testified before the Dies Committee about the radical activities of the American Civil Liberties Union (ACLU), Frankfurter’s participation on the organization’s national committee since its inception in 1920, and his opposition that same year to the roundup and deportation of radical immigrants during the Palmer raids.
Amid rising fears of Communism, Frankfurter’s Senate confirmation hearings resembled a three-day HUAC trial replete with unreliable witnesses and unsubstantiated testimony. Not even Brandeis, who had waited 117 days for a committee vote in 1916 and had been represented before a subcommittee by his law partner, had endured such a humiliating ordeal. In many ways, Frankfurter experienced the first modern Supreme Court confirmation hearing. People publicly testified against him and made wild accusations. He was the second Supreme Court nominee to testify in person—and not by choice. He experienced the first confirmation process as an open public debate not only over his fitness to serve on the Court but also over his loyalty to the country.
On January 7, 1939, a Senate judiciary subcommittee convened to review letters and telegrams about Frankfurter’s nomination. Several people requested the opportunity to testify against him. Senator William H. King, an anti–New Deal Democrat from Utah, suggested public hearings. Despite his doubts whether the hearings would reveal any new information about the nominee, King argued that “this is supposed to be a democratic form of government” and described an associate justiceship as “an office of great importance.” If people wanted to be heard, King said, it was the committee’s “duty to hear them.” The other members unanimously agreed.
That afternoon, the subcommittee chairman, Senator Matthew Neely, a pro–New Deal West Virginia Democrat, wired Frankfurter offering him the opportunity to appear “in person or by counsel.” No Supreme Court nominee had testified on his own behalf except for Harlan Fiske Stone in 1925 to explain why, as Coolidge’s attorney general, he had continued the unsuccessful prosecution of the Harding administration’s chief antagonist, Senator Burton K. Wheeler. Stone, however, was the attorney general and had testified about a single prosecution; Frankfurter was a private citizen who did not want to set a bad precedent for future nominees or to expose himself to wide-ranging questions. He sought advice from longtime friends about how to respond. First, he phoned Neely and indicated that he preferred to continue to teach his Harvard law classes. Later that night, he wired his willingness to testify if needed and preferred to be represented by his counsel, Dean Acheson.
Tall and handsome, raised on a Middletown, Connecticut, farm, and educated at Groton and Yale College, Dean Gooderham Acheson was expected to join the establishment. What was decidedly unexpected was the son of an Episcopal bishop’s lifelong bond with an immigrant Jewish law professor. Frankfurter tapped Acheson, a Harvard Law Review editor and fifth in his class, to serve as Brandeis’s secretary after graduation. After working two terms for Brandeis from 1919 to 1921, he joined the Washington law firm of Covington, Burling & Rublee as its fourth attorney and first associate. Frankfurter encouraged Acheson’s passion for public service and unsuccessfully lobbied for him to be Roosevelt’s solicitor general. In May 1933, Roosevelt named Acheson under secretary of the treasury. After five months of in-fighting, Acheson resigned over his disagreement with the president’s gold-purchasing policy. He quietly returned to his partnership at Covington with his government career in shambles—until he found himself back in the public eye because of Frankfurter’s nomination.
At 10:00 a.m. on January 10, a few hours before Frankfurter taught his public utilities class at Harvard, Acheson represented him before the Senate subcommittee. In Room 237 of the Old Senate Office Building, the Covington lawyer cut quite a figure with his dark double-breasted suit, white pocket square, and carefully cultivated mustache. He sat in his chair, took notes, and listened as each witness testified for half an hour on a first-come, first-serve basis. He chose not to cross-examine any of the witnesses he later described as “the oddest collection of people I have ever seen. All were fanatical and some were very definitely mental cases.”
The first witness, Collis O. Redd, the self-described national director of the Constitutional Crusaders, purported to speak for everyone in America except for the largest labor unions and in reality represented only himself. Bald, bespectacled, and dressed in a three-piece suit, Redd asked why Roosevelt did not appoint “an American from Revolution times instead of a Jew from Austria just naturalized.” Senator Norris observed that a justice from the Revolutionary War era would be “too old.” Senator Borah, an Idaho Republican and another Frankfurter champion, asked: “Are you opposing Mr. Frankfurter on the ground that he is a Jew?” After Redd denied the accusation, Borah asked: “Then why drag these things into the record?” Redd insisted that he was opposed to Frankfurter as the author of the National Industrial Recovery Act even though it was pointed out that others had drafted the law. Redd contended that his “interest in this fight is against the liberalism, as now called modern liberalism, as laid down by Frankfurter, Rosenman, Baruch, and President Roosevelt.” He argued that Frankfurter “corresponds more to the theories of Russian Communism, instead of upholding the liberal ideals of the founders of this country.”
The next witness, a respectable-looking Washington lawyer named George E. Sullivan, wrote about Communist activity for Catholic publications. During the mid-1930s, he had served on a federation of citizens’ associations trying to force District of Columbia public school teachers to sign loyalty oaths to receive their pay. In late 1938, he had represented accusatory witnesses before the Dies Committee. He turned his Red-hunting sights on Frankfurter. As he gripped the sides of the conference table, Sullivan argued that “Mr. Frankfurter’s alien-minded affiliations do not inspire confidence in him as fit to be an American official of any kind, much less a member of our highest judicial tribunal.” Sullivan excoriated Frankfurter for joining the national committee of the ACLU, an organization filled with “a number of notorious Reds” including Communist Party chairman William Z. Foster. Sullivan also read Theodore Roosevelt’s 1917 letter accusing Frankfurter of “Bolsheviki” activity in investigating the Bisbee deportation and the Mooney case for the Wilson administration. Senator Neely observed that Sullivan had neglected to quote Frankfurter’s reply to Roosevelt and included it in the record. Neely also asked Sullivan whether his objections were “based upon the ground that he is a Jew?”
The day’s third and final witness, Colonel Wade H. Cooper, tried to use Frankfurter’s hearings to relitigate a frivolous lawsuit. A former stockholder of a defunct District of Columbia bank, Cooper had failed to persuade the Supreme Court to hear his case seeking $500,000 in damages because the government had forced his bank to close. Senator Norris asked whether it would be “proper” to ask Frankfurter his opinion about whether the Court should have taken the case. “I think you should get his opinion,” Cooper replied. “It is not only me, but the whole country.” Acheson sat a few feet away from Cooper with a look of exasperation and disbelief. Several senators “lost interest” and “walked out.” The press was not amused; the conservative Chicago Tribune described Cooper and Redd as “cranks”; columnist Raymond Clapper concluded: “This pitiful showing was an unintended compliment to Frankfurter.”
The real show began with the next morning’s star witness, Elizabeth Dilling. A suburban Chicago housewife and devout Catholic, Dilling had studied the harp at the University of Chicago and married a lawyer and chief engineer with the Chicago Sanitary District. A 1931 summer trip to Russia transformed her into an anti-Communist crusader. For the next seven years, she devoted her time and energy to stamping out Communism in America. In 1934, she self-published a book, The Red Network, of facts, innuendos, and associations to smear prominent people. Frankfurter earned an entry in the “Who’s Who” section. Her 1936 book, The Roosevelt Red Record and Its Background, described Frankfurter as “one of that clique of foreign-born Jewish revolutionaries so strongly behind Roosevelt and so powerful in his Administration.”
Before the Senate subcommittee, Dilling announced her appearance “as an American citizen who devotes her time to noncommunistic activities at my own expense.” She wore a blue and gold dress with three embroidered flowers on each side and a large gold locket around her neck. Her red, curly hair peeked out beneath a dark pillbox hat with three small white ribbons on the front and a white lace veil on the back. The press described her as “comely” and “fast talking” with “a high voice.” With papers piled in front of her, Dilling began to read seventeen pages of testimony and relied on newspaper articles to support her primary assertions: “that Felix Frankfurter has long been one of the principal aids to the ‘red’ revolutionary movement in the United States” and that he “worked in conjunction with and in behalf of leading ‘red’ revolutionaries, and published propaganda for them, working directly with the Communist Party.”
Exhibit A of Communist propaganda, according to Dilling, was Frankfurter’s 1927 book arguing for a new trial for Italian anarchists Sacco and Vanzetti. She invoked John Henry Wigmore’s criticism as proof of Frankfurter’s “prejudice in favor of radicals” and “that he is unqualified not only for the Supreme Court bench but as a lawyer.” She quoted at length from Wigmore’s articles in the Boston Evening Transcript and Boston Herald attacking Frankfurter’s book. She referred to the ACLU’s participation in the case and described the fight for a new trial for Sacco and Vanzetti as “a communist agitation.”
Dilling also attacked him on the basis of Marion’s co-editing of Sacco’s and Vanzetti’s jailhouse letters with Gardner Jackson (“Communist supporter”) and Frankfurter’s associations with New Deal official Donald Richberg (“socialistic activities”), professor Max Lerner (Communist Party lecturer), ACLU director Roger Baldwin (“ ‘red’ revolutionary”), and labor organizer and former student Albert Weisbord. Then there was Frankfurter’s longtime position on the ACLU’s national committee. “The history of the American Civil Liberties Union,” she asserted, “is the history of the entire Communist and ‘red’ revolutionary movement.”
Senators Neely and Norris took turns rebutting Dilling’s accusations. Neely questioned whether she could attribute Baldwin’s ACLU writings to the nominee because the latter was a member of the organization’s national committee and argued that it would be like attributing whatever someone in the Democratic or Republican Party wrote to one of its members. Norris clarified that Frankfurter’s book had not defended the actions of Sacco and Vanzetti, only that they had not received a fair trial. “Frankfurter was a member of that organization,” Dilling insisted, referring to the ACLU, “and he defended those men, and he knew they were guilty of every kind of crime done by ‘reds,’ and they were against our form of government.”
Dilling’s testimony unraveled during questioning about The Red Network’s accusations of radicalism against many prominent public officials including Norris himself. “You classify as ‘reds’ practically this entire committee,” Norris said. Neely reminded her that The Red Network had tagged as radicals Hughes, Brandeis, Cardozo, Roberts, and Stone. “I didn’t know Hughes was in it,” she replied. “I knew the rest of them were. I don’t keep all these radicals in my mind.” Dilling insisted that Brandeis was “one of the most radical individuals in the United States.” She argued that “Brandeis is the father of the policies and social philosophies of Frankfurter” and “in that respect they are father and son.” She also deemed as radicals Senators Shipstead, Borah, Norris, La Follette, and Frazier, Republican senate candidate Glenn Frank of Wisconsin, as well as President and Mrs. Roosevelt. Neely was incredulous about Dilling’s willingness to smear the president and first lady. “Do you want the evidence on them. I have got it here,” Dilling said in a high-pitched voice. “Give me 15 minutes, and I will give it to you. If what I said about Roosevelt is not so, I ought to be in jail.” Despite skepticism from several members of the committee, Dilling remained steadfast in her belief that Frankfurter was “one of the brilliant minds in connection with the ‘red’ movement. It will be a terrible thing in every community in this country when he is put on the Supreme Court Bench.”
Life magazine’s “picture of the week” featured an image of Dilling leaning forward, teeth clenched, and in mid-sentence. The magazine declared the “restless suburban Chicago matron . . . easily the star performer.” Her testimony overshadowed the rest of the day’s witnesses, most of whom veered from paranoid to prejudiced. They opposed Frankfurter’s nomination because he was “imbued with collectivist ideas of government,” “specialized in turning out international lawyers . . . because these international people are mostly Jews,” was an “alien,” and an ACLU member whose organization favored federal laws that “communized” Native Americans.
One witness matched Dilling’s anti-Communism, anti-Semitism, and right-wing extremism—Allen A. Zoll. A Harvard Law School dropout, sales consultant, and ally of anti-Semitic radio preacher Father Coughlin, Zoll testified as executive vice president of the American Federation Against Communism. He was involved in the Coughlin-inspired Christian Front and founded his own far-right organization, American Patriots. On October 30, 1938, Zoll had led a 2000-person “Pro-American Rally” in New York City. Dilling, one of the rally’s speakers, criticized Mayor Fiorello La Guardia and Eleanor Roosevelt as radicals. A movie shown at the rally featured a swastika and images of Hitler and Mussolini. On December 18, Zoll organized picketing of New York City radio station WMCA for its refusal to broadcast Coughlin’s anti-Semitic speeches. Margaret Hopper, a housewife and one of the picketers that day, testified at Frankfurter’s Senate hearing that people chanted “Down with Frankfurter” and “Keep him off the Supreme Court.” The reason, she said, was that “Frankfurter is a ‘red.’ ”
