Democratic Justice, page 5
The highlight of Frankfurter’s prosecutorial career was the sugar fraud cases. It was the reason why Roosevelt wanted Stimson to be U.S. attorney, it made Stimson’s career, and, for the first time, it thrust Frankfurter into the media spotlight. Stimson and Frankfurter already had successfully prosecuted the American Sugar Refining Company—the Sugar Trust—for illegal railroad rebates. In November 1907, a federal agent discovered that customs house and sugar company employees had conspired to reduce the weight of imported unrefined sugar to save the company millions of dollars in federal customs fees. The customs employees had drilled holes and inserted springs in the seventeen scales, which allowed them to reduce the recorded weight of imported sugar. It became “The Case of the Seventeen Holes.”
The sugar fraud prosecutions took two years and outlasted Stimson’s term as U.S. attorney. He left office to return to private practice in April 1909 shortly after William Howard Taft’s inauguration as Roosevelt’s successor. Frankfurter and Stimson agreed to serve as special prosecutors to finish the sugar fraud cases. Frankfurter joined his boss’s law firm, Winthrop & Stimson, for about eight months before returning to the U.S. attorney’s office. After three years, Frankfurter was an experienced prosecutor with valuable knowledge about the Sugar Trust. In December 1909, he arrived at the American Sugar Refining Company’s massive Williamsburg, Brooklyn, refinery with a subpoena for import records. He was told that the records or technical statements from the period in question were missing. Instead, he seized the company’s books and papers. For six months, a team of accountants and lawyers reconstructed the company’s import records and discovered the exact disparities between the company’s weights and those of the customs house. The civil and criminal prosecutions recovered about $3.5 million in customs fees.
The sugar fraud prosecution took several stages: First, Stimson, Denison, and Frankfurter won a civil suit against the company, which paid millions in back duties instead of the company facing a criminal trial; second, they tried and convicted low-level customs and Sugar Trust employees; finally, they charged the senior sugar company executive involved in the scheme, Charles R. Heike. The prosecution of Heike, secretary and treasurer of the company, was front-page news. Stimson, Denison, and Frankfurter led the prosecution team. Before his trial in April 1910, Heike unsuccessfully appealed to the Supreme Court that he was immune from prosecution on the basis of his testimony in other cases. During the month-long trial, Heike was convicted of conspiring to defraud the federal government and sentenced to eight months in prison. Frankfurter successfully briefed and argued the Heike case before the Court of Appeals for the Second Circuit. And Stimson, Denison, and Frankfurter successfully defended Heike’s conviction before the Supreme Court. This time, Frankfurter’s name was on the brief.
THE SUGAR FRAUD VICTORIES changed Stimson’s life as well as Frankfurter’s, thanks to the political machinations of Theodore Roosevelt. During the summer of 1910, the former president had been trying to talk a reluctant Stimson into running as the Republican nominee for governor of New York. In September, Roosevelt wangled the chairmanship of the state Republican Party, then ran roughshod over the nominating convention in Saratoga to secure the party’s nomination for Stimson.
After a two-hour meeting in Albany with the outgoing Republican governor, Charles Evans Hughes, an exhausted Stimson arrived at 5:40 p.m. on September 29 in Grand Central Station. No crowd greeted him during the evening rush hour. Frankfurter joined a half dozen former prosecutors waiting on the platform to congratulate him. The New York Times described Frankfurter as “closely associated with Mr. Stimson in the prosecution of the Sugar Trust cases.”
Dedicated to his former boss, Frankfurter took a leave of absence from the U.S. attorney’s office to join Stimson’s gubernatorial campaign. He wore many hats—point man at campaign headquarters at the Manhattan Hotel, campaign secretary, and chief aide to Stimson during speeches upstate and in the city. To the press, he contrasted Stimson’s record—prosecuting illegal shipping rebates, crooked financiers, and customs fraud—with the corruption and patronage of the Tammany Hall political machine. “He has never stood for peanut politics nor peanut politicians,” Frankfurter told the New York Times in late September. “Mr. Stimson has no love for the grafter, never had and never will. He will make a great campaign for the Governorship, and, take it from me, he will win.”
The campaign brought the 27-year-old immigrant in frequent contact with the energetic former president known as Colonel Roosevelt. After nearly two terms in the White House, Roosevelt had declined to run again in 1908 even though he would have been only fifty years old on Election Day. Instead, he had groomed Taft, a former state and federal judge, as his successor by naming him secretary of war. By fall 1910, Roosevelt’s anger and frustration with Taft had been building for months. The Colonel felt like his successor had become captured by big business. The Ballinger-Pinchot affair pitted Roosevelt loyalists and conservationists against Taft officials who allowed a Morgan-Guggenheim syndicate to purchase coal-field claims in Alaska. The controversy exacerbated the split between Roosevelt and his hand-picked successor. In June 1910, Roosevelt returned from Africa (where he was on safari) and Europe (where he accepted the Nobel Peace Prize for ending the Russo-Japanese War) and privately geared up to challenge Taft.
In late summer 1910, Roosevelt sounded like a presidential candidate as he took to the stump before huge crowds out West pledging to fight against corporate greed and for the rights of workers. On August 29 in Denver, Colorado, he criticized the Supreme Court’s decisions in E. C. Knight, which excluded manufacturing from the reach of federal antitrust laws, and Lochner, which invalidated a New York maximum-hour law for bakers. The two decisions, Roosevelt argued, created a no-man’s land where neither the federal government nor the states could regulate unfair competition and inhumane labor practices. Two days later before 30,000 people in Osawatomie, Kansas, he vowed in his famous “New Nationalism” speech to use the power of the federal government to fight special interests, regulate railroads, outlaw child labor, pass workmen’s compensation laws, and do the people’s bidding rather than that of big corporations. As in his Denver speech, he accused the judiciary of protecting property rights over human rights. Roosevelt’s speeches resonated with the masses who resented growing inequality in a rapidly industrializing America as well as with Frankfurter and other legal elites who believed in social and economic change through the democratic political process rather than through the courts. For Frankfurter, Roosevelt was the leader who could implement James Bradley Thayer’s ideas about limiting judicial review while empowering the federal government.
Nearly a month after the “New Nationalism” speech, Roosevelt orchestrated Stimson’s run for governor as a referendum against the Tammany Hall political machine. The machine backed Democrat John Alden Dix and fought to keep Roosevelt’s candidate out of Albany so as to tarnish Roosevelt’s reputation as rumors swirled that he would run for president in 1912.
On the campaign trail, Roosevelt drew massive crowds, overshadowed Stimson’s appearances, and dominated the political conversation. The plan was for the two men to split up with Roosevelt upstate when Stimson was in New York City and vice versa. All of Roosevelt’s speeches, however, seemed to be about Roosevelt. At the end of the day, the former president asked Frankfurter how the speeches had gone. It was a moment of truth. An intimidating, charismatic former president was asking him, a 27-year-old assistant federal prosecutor, for his opinion. In the darkness of the car ride to Grand Central Station, Frankfurter summoned his courage. The New York World, he informed the Colonel, was keeping a running tally of the number of times Roosevelt used “I” in his speeches. Frankfurter’s courage paid off. At his next campaign stop in Buffalo, Roosevelt spoke all about Stimson, his record as a federal prosecutor, his sugar fraud convictions, and the choice of a progressive government by Stimson or a corrupt government by Dix.
It made little difference in light of Stimson’s inadequacies as a public speaker. Even Roosevelt conceded that while Stimson “would make the best Governor,” he was “not the best candidate.” Frankfurter accompanied Stimson to Sagamore Hill and witnessed Roosevelt’s reaction to Stimson’s acceptance speech. “Darn it, Harry,” Roosevelt remarked, “a campaign speech is a poster, not an etching!”
During the final days of the campaign, Roosevelt and Stimson raced around New York City. On the night of October 31, Stimson spoke at the Grand Music Hall, a Yiddish variety theater located at the corner of Grand and Orchard Streets on the Lower East Side. Police cleared a path so Stimson and Frankfurter could enter the hall. Inside, an audience of 2,500 people cheered.
After the crowd quieted, the master of ceremonies told them about how as U.S. attorney Stimson had hired Frankfurter as an assistant when most Wall Street law firms had refused to do so because he was Jewish. “And if Tammany Hall tries this year to work off the oldtime tale of Republican race prejudice,” the master of ceremonies continued, “you answer with the tale of the appointment of Felix Frankfurter, Jew.” The crowd filled with Eastern European Jews erupted with cheers. Frankfurter had not grown up on the Lower East Side. Nor would he have been comfortable using his religion for political gain. But it was for a good cause. A few minutes later, Stimson invoked Frankfurter to appeal to the crowd of Jewish voters. “If there was one of my assistants in the District Attorney’s office to whom I owe personal gratitude . . .,” Stimson said, “Felix Frankfurter is that man.”
Fifteen minutes after Stimson had finished his speech and left for his next campaign stop, five more cars pulled up at the Grand Music Hall. The crowd swelled so much that police were unable to clear a path to the front door. Undaunted, Theodore Roosevelt leaped onto the fire escape on the side of the building, bounded up a flight of stairs two at a time, and opened a window into the hall. Before he entered, he turned around and waved his hat at the cheering crowd below.
Introduced as “the greatest citizen in the world,” Roosevelt was greeted with wave after wave of cheers. New Nationalism with Stimson as governor, Roosevelt told the crowd of garment workers and merchants, offered them “the chance to work for a reasonable wage under healthy conditions, and not for an excessive number of hours.” It also offered “the chance for the small business man to conduct his business without oppression, without having to be blackmailed” and the chance to “stand against the worst alliance of crooked politics and crooked business that this State has seen, or this city has seen, since the days of Tweed.”
That night, Stimson and Roosevelt spoke to nine audiences throughout New York City and only crossed paths at the last stop. “Isn’t it bully?” Roosevelt exclaimed. Roosevelt was energized; Stimson was exhausted. Nine days before the election, Stimson trailed Tammany Hall candidate Dix in the polls.
Overshadowed by Roosevelt and overwhelmed by his inadequacies as a candidate and a Democratic landslide, Stimson never stood a chance. On election night, he saw the returns from upstate and conceded by 8:00 p.m. Frankfurter and other current and former assistant U.S. attorneys joined Stimson at campaign headquarters in the Manhattan Hotel for dinner and a party with the candidate. After the election, Stimson gave Frankfurter a watch as a token of appreciation for his hard work during the campaign.
Frankfurter had shown Stimson tremendous loyalty. He had recruited former Harvard Law Review editors for the U.S. attorney’s office and Stimson’s law firm. He had allowed Stimson to tell his story to Eastern European Jews on the Lower East Side. And he had fought for Stimson’s best interests even when it meant telling hard truths to a beloved former president. Stimson, in essence, represented Frankfurter’s ideal public servant. He had chosen his assistants on the basis of merit rather than political affiliation or patronage. He believed that adhering to the Fourth Amendment’s prohibition against unreasonable searches and seizures was more important than racking up convictions. And he delighted in promoting the careers of his bright young assistants—he made sure, for example, that Frankfurter argued the Heike case on appeal. Frankfurter was grateful to the taciturn, patrician U.S. attorney for transforming him from an unhappy junior Wall Street lawyer into a fulfilled federal prosecutor and friend of Colonel Roosevelt.
The highlight of the campaign for Frankfurter was getting to know the Colonel. After the election, the former president encouraged him to stay in the political arena. “I feel exactly as you do, that there never was a more genuine fight for the people made than we made; and I am mighty glad to have had my hand in it,” Roosevelt wrote Frankfurter in December 1910. “Let me also say that it was a genuine pleasure to have gotten to know you. I value you and believe in you.”
The feeling was mutual. As much as Roosevelt believed in him, Frankfurter believed in Roosevelt. He may have been an ex-president, but the Colonel was a potent political force with lingering presidential aspirations and a larger-than-life figure.
Roosevelt’s narrow conception of judicial power, emphasis on regulation of the economy to prosecute trusts and to fight for workers, and leadership of a national reform movement appealed to Frankfurter. In January 1911, he sent Roosevelt a copy of Justice Holmes’s Supreme Court opinion upholding western states’ bank guaranty laws and broadly interpreting state power to pass social and economic legislation. A few days later, Frankfurter complimented Roosevelt’s article in The Outlook clarifying that New Nationalism did not mean simply aggrandizing federal power but allowing “the most efficient utilization” of federal and state power to regulate the economy. Roosevelt invited Frankfurter to lunch with him at the Harvard Club. Frankfurter, in turn, asked Roosevelt to speak to a small group of lawyers named “The Hecklers.” In preparation for the talk, Frankfurter sent Roosevelt a six-page outline about the narrow use of judicial power and the adaptability of the Constitution to deal with economic and social problems. He included quotations from his Harvard law professor John Chipman Gray and concluded with a reference to the dissenting opinions in Lochner v. New York objecting to the invalidation of a maximum-hour law for bakers. Roosevelt’s talk to Frankfurter’s group gave the Colonel the opportunity to explain the ideas in his Denver and Osawatomie speeches about judicial usurpation of the democratic prerogative to regulate the economy. After the speech, Frankfurter indicated that Roosevelt may have converted a few skeptics about a limited role for the judiciary.
The Frankfurter-Roosevelt courtship was a two-way street. The Colonel went out of his way to show that Frankfurter’s faith in him as a reformer was not misplaced. In late June 1911, he sent Frankfurter a copy of a letter opposing the idea of putting the word “Hebrew” on the passports of American Jews. “I believe that from the standpoint of the Christian, just as much as from the standpoint of the Jew, it is ill advised to treat what is really a religious matter as a race matter,” Roosevelt wrote. He also invited Frankfurter to the weekly meeting of Outlook magazine editors. Frankfurter cut short his vacation in Vermont to attend.
Frankfurter implemented Roosevelt’s New Nationalist ideas at the U.S. attorney’s office by suing monopolies. He and his fellow prosecutors made headlines in 1911 by filing antitrust lawsuits against steamship companies, the lumber trust, the magazine trust, and steel wire and horseshoe men. The defendants in the last lawsuit were subsidiaries owned by U.S. Steel. Frankfurter, however, was not around to take the cases to trial.
Henry Stimson offered him another life-changing job; this time it was in Washington.
CHAPTER 4
The House of Truth
On May 12, 1911, President Taft named Henry Stimson secretary of war. Taft’s administration was divided between conservatives and progressives, between Taft men and Roosevelt men; Stimson was viewed as a Roosevelt man. Frankfurter rejoiced over Stimson’s appointment; he believed that Stimson could promote Roosevelt’s New Nationalism in cabinet meetings and with the president. Congratulating his former boss, he predicted that Stimson would help restore the Republican Party as the liberal party: “There is still the chance to regain the momentum of liberalism, which was the great legacy of the Roosevelt period.”
Stimson changed Frankfurter’s life yet again by recruiting him to come to Washington. At first, he claimed to be finding Frankfurter a job in the Justice Department. Attorney General George W. Wickersham wrote to Frankfurter praising his work but explained that Stimson needed him more in the War Department. Before long, Stimson offered him the position of law officer in the Bureau of Insular Affairs overseeing U.S. territories, essentially as Stimson’s “junior partner.” “Faithful Frankfurter” accepted on July 1 and later that month set sail with his boss on a tour of the territories, including Puerto Rico and Cuba, his first time at sea since leaving Austria at age eleven.
IN SEPTEMBER 1911, Frankfurter arrived in Washington, D.C., and left behind his network of family and friends and a professional milieu dominated by Wall Street law firms. He knew few people, ate many meals by himself, and walked Washington’s wide streets and avenues. There were no streetlights and few cars. The nation’s capital was a small, southern town where everyone seemed to know everyone. People cared about ideas and power, not money. As Stimson’s aide, he began to meet generals, cabinet members, and Supreme Court justices. Frankfurter did not care about money and did not “collect books or pictures,” a friend explained, “he collects people.” In Washington, the 28-year-old War Department aide began collecting new people by expanding his professional network beyond Harvard Law School and the Southern District of New York and by promoting Theodore Roosevelt’s New Nationalism.
