Democratic Justice, page 51
At the time, however, Frankfurter alienated his liberal friends with his “angry vehemence” about the war. At a stag dinner at Archibald MacLeish’s on June 1, Frankfurter became “very emotional” discussing the war and insisted that the United States should enter on the side of the Allies. He and Attorney General Robert Jackson argued late into the night about whether the United States should intervene. At one point, Jackson blurted out: “But you have no son.” The remark hurt Frankfurter, who, of course, had lots of “sons,” including his former graduate student Sylvester Gates at risk in London and former students and law clerks who eventually fought overseas. Even people at the dinner who agreed with Frankfurter, such as Solicitor General Francis Biddle, thought he was too pro-British and anti-German. Of the Jackson-Frankfurter debate, Harold Ickes concluded: “The latter is really not rational these days on the European situation.”
DURING THE FINAL MONTHS of the Supreme Court term, Frankfurter was consumed by the events in Europe and how he could help the Roosevelt administration prepare for war. As he had done in the past, he recruited people and placed them in the highest levels of the administration—starting with his mentor Henry Stimson. The 72-year-old Stimson exemplified Frankfurter’s ideal public servant. He had been Frankfurter’s boss as the U.S. attorney for the Southern District of New York and in Taft’s War Department, then had served as Hoover’s secretary of state. Unlike other Republicans, Stimson was not an anti-Roosevelt isolationist; he was the same interventionist he had been during the Taft and Wilson administrations.
The night of May 2, Stimson dined with the Frankfurters at their home and heard their “ardently pro-Ally” views and their concerns about influential people in the U.S. government willing to stand pat. He heard about tension between the State Department and the British Foreign Office and about fears of a Republican isolationist presidential platform in the coming election. The next day, Stimson met with State Department officials and tried to impress upon them the importance of good relations with the British. Frankfurter then picked him up for a 1:00 p.m. White House lunch with Roosevelt. It was the first meeting between Roosevelt and Stimson since 1934. Roosevelt revealed his covert efforts to keep Mussolini from joining forces with Hitler. He also confided his concern with the “disappointingly low” number of planes that American manufacturers had produced for the Allies. Frankfurter thanked Roosevelt for seeing Stimson: “He is a fine old Roman . . . and wants to feel he is still of use to the Republic. . . . You made Stimson feel he is of use—and gave him fresh impulse to go on. Many thanks for taking me out of my marble prison.”
Unwilling to stay in his “marble prison,” the justice made it his mission to bring Stimson into the Roosevelt cabinet. On the morning of May 25, Frankfurter met with the president in the White House for nearly an hour and discussed how to transform the cabinet into a war cabinet, specifically who should lead the War Department. Roosevelt had clashed with Secretary of War Harry Woodring over airplane production and military preparedness. A few days later, Frankfurter conferred with former classmate Grenville Clark about making Stimson secretary of war and checked on Stimson’s health. On June 3, after he announced his Gobitis opinion, Frankfurter and his wife, preparing to leave Washington for the summer, visited with Roosevelt for a “goodbye cocktail” at the White House. During this “very happy party,” Frankfurter raised the possibility of making Stimson secretary of war and Second Circuit Court of Appeals judge Robert Patterson assistant secretary. Roosevelt did not say anything at the time, but Frankfurter knew that he had “struck fire.”
After a night of “hard thinking,” Frankfurter wrote Roosevelt “the more I think the more sense Stimson and Patterson make.” He reviewed Stimson’s career and emphasized not only his experience but also his lack of ambition for higher office and deep loyalty. He also described Patterson’s career after serving as Harvard Law Review president the year that Frankfurter had begun teaching at the school. “He has, I believe, four children and no means,” Frankfurter wrote of Patterson, “but I know of no man whose devotion to country is greater.” He recounted a recent afternoon with Patterson after which Marion remarked: “ ‘Why isn’t he the man to be Secretary of War?’ ” Patterson, Frankfurter argued, had “all the brains and productive capacity that are needed for the job, but in addition he has that very rare quality of leading.” The next day, Frankfurter pressed his case with the president: “Ideas are like men. . . . The more I have lived with the idea of the Stimson-Patterson combination, the more right it seems.” Frankfurter believed that to prepare the country for war, Roosevelt needed a bipartisan or coalition cabinet that included interventionist Republicans such as Stimson and Patterson in key defense positions. Since 1915, Stimson had been associated with the Plattsburg movement, a summer training camp in Plattsburg, New York, where businessmen and professionals learned to be soldiers and military officers and prepared for war. Patterson, who was awarded a Distinguished Service Cross and a Silver Cross as an infantryman in France during World War I, was a longtime friend of Stimson’s and a Plattsburg graduate. After the Graham-Meyer wedding and with the Frankfurters staying for a month with friends in Cambridge, he informed Roosevelt on June 13 that Stimson and Patterson were “available” and “regard themselves as soldiers” willing to lead the War Department and to serve under Roosevelt.
As he wrote the president about Stimson, Frankfurter knew the situation in Europe was dire. On June 19, the same day that Hitler offered the British a final opportunity to surrender, Roosevelt phoned Stimson and offered to make him secretary of war. A few hours later, Stimson accepted after learning Colonel Frank Knox, the 1936 Republican vice-presidential candidate and Chicago Daily News publisher, had agreed to be secretary of the navy. And Stimson concurred that Judge Patterson would make a fine assistant secretary of war. The next day, Roosevelt shocked official Washington by naming Stimson and Knox to head the War and Navy Departments; Republican isolationists seethed. Frankfurter rejoiced. “Simply Grand,” he wired the president. “You have again shown how to summon the country’s service and place the nation’s need on the level where it belongs. Let me express my gratitude of this new manifestation of leadership for a free people.” To Stimson, Frankfurter wired: “You are where the country needs you.” On June 22, two days after Roosevelt remade his cabinet into a war cabinet, France surrendered to Germany. The next day, Hitler triumphantly marched through the streets of Paris. On July 11, Frankfurter cut his New England vacation short to swear in Knox in the Oval Office. The small ceremony resulted in one of the few photographs of Roosevelt and Frankfurter. Two weeks later, Patterson resigned as a federal court of appeals judge and replaced Louis Johnson as Stimson’s assistant secretary. “I never had a doubt you would get Bob. P—but I’m glad it’s done,” Frankfurter wrote Stimson. “He ought very quickly to relieve you of multitudinous details, and keep you free for the major lines of policy. I’d give a deal to be by your side these days.”
With Stimson and Patterson leading the War Department, Frankfurter advised them in August on what he considered their most pressing issue—the destroyer deal. The question was whether the executive branch, without seeking new legislation, could transfer old navy destroyers to the British. After the Dunkirk evacuation, the British desperately needed ships; Ambassador Kennedy reported that without the American destroyers, the British would be forced to surrender. Opponents argued that transferring the old warships violated federal neutrality laws. And there was no way to amend the laws because isolationists in Congress vowed to filibuster. Dean Acheson and Ben Cohen collaborated on a memorandum arguing that no federal laws would be violated by exchanging old destroyers, as opposed to new ones built for the express purpose of sending them to a belligerent country. They published a New York Times letter to the editor signed by Acheson and leaders of the bar C. C. Burlingham, George Rublee, and Thomas D. Thacher. Stimson wrote Frankfurter asking for the justice’s opinion. After thinking about the problem for two or three days, Frankfurter phoned Stimson on August 15 and agreed with Burlingham’s opinion that the destroyer deal was within the president’s power but “thought the line was a narrow one.” A relieved Stimson immediately phoned the president, who was “greatly pleased and said he felt very much encouraged.” On September 2, the United States agreed to exchange fifty warships for 99-year leases of British bases on Newfoundland, Bermuda, and the British West Indies.
No one said anything about the propriety of a sitting justice interpreting federal law and opining on executive power for the president who had nominated him. Frankfurter may have felt emboldened by the common practice of justices advising presidents: William Moody with Theodore Roosevelt, Brandeis with Woodrow Wilson, Taft with Harding, and Stone with Hoover. Yet, in advising Roosevelt and Stimson on issues that might come before the Court, Frankfurter was crossing dangerous ethical lines because, rightly or wrongly, he believed that when it came to winning the war, the ends justified the means.
Frankfurter’s role in remaking Roosevelt’s cabinet for war was as consequential and, in his mind, as important as his flag salute opinion in Gobitis. He did not care whether he was sufficiently “liberal” for his friends in government, the media, or the legal academy. He ignored the obvious conflicts of interest and violations of separation of powers about advising the president and the new secretary of war. Nor was he concerned whether he would be the future intellectual leader of the Court. He remained steadfast in his belief that liberals should rely on the political process rather than the judiciary for political and social change. He contributed to the most consequential political events of his life by serving the Roosevelt administration as a wartime recruiter and policy maker while sitting on the Supreme Court as an associate justice. The war dominated his work life. And it soon transformed his home life.
CHAPTER 23
Uncle Felix and Aunt Marion
The day that France surrendered to Germany on June 22, 1940, Frankfurter knew that the Nazis would bomb Britain next. He thought about what would happen to the three children of his British former graduate student Sylvester Gates. The Frankfurters had seen the entire family in London the previous summer and delighted in meeting Ann, 12, Venetia, 10, and Oliver, 3.
At 11:51 that morning, Frankfurter wired Gates: “Marion and I hope Pauline and you will entrust your children to our ca[re].” Sylvester and Pauline cried when they received the telegram. They had been hiding with the children in Dorset in southern England but realized there was nowhere safe in the country. They could not immediately respond to the Frankfurters’ offer because it was difficult to send transatlantic cables in wartime London. Three days later, Gates was able to wire: “There is no one in world to whom we would as happily in trust [sic] the children as you and Marion and we can find no words for our gratitude but the decision torments us.” They asked for twenty-four hours to ponder the gut-wrenching decision of sending away their children. Their main hesitation was that other parents lacked the same opportunity. Frankfurter responded that they should take their time, asked them to send a nurse with Oliver, and cautioned that the children might have to be placed in different households.
Sylvester Gates was one of Frankfurter’s best former graduate students. He co-authored Frankfurter’s book, The Case of Sacco and Vanzetti, but, for political reasons, received only an inside acknowledgment, a personal inscription acknowledging his labor, as well as half the fee for the magazine article. Frankfurter was so impressed with Gates, an Oxford-educated barrister who was studying private international law at Harvard, that he had offered him the opportunity to succeed Tom Corcoran as Holmes’s secretary. Gates, however, declined the Holmes clerkship to begin his legal career in London. In 1933, when the Frankfurters lived in Oxford, Gates introduced them to leading intellectuals including Maurice Bowra and Isaiah Berlin. Three years later, Gates married Pauline Murray. It was the second marriage for both of them. From her previous marriage, Pauline had two children, Ann and Venetia. Pauline and Sylvester had Oliver.
On July 4, Sylvester and Pauline Gates “gratefully” accepted the Frankfurters’ offer to safeguard their children in America. Six days later, the Battle of Britain—the German Luftwaffe’s air raids over the country in an attempt to bomb it into submission—began. The Royal Air Force defended the country from the onslaught. Germany also initiated a blockade of British commercial vessels, but the British maintained an advantage at sea. The Gateses wasted no time getting their children out of the country. On July 17, they obtained immediate passage for the children and their nurse to Montreal, Canada. Frankfurter indicated that he had wired Ambassador Kennedy at the American embassy as a condition of obtaining the proper visas and on July 18 wired Gates: “Delighted at their coming.”
After twelve years as a barrister, Sylvester became a banker and during the war worked for Alfred Duff Cooper in the British Ministry of Information. He thus knew his children were in danger. On July 20, he and Pauline watched in Liverpool as their three children, accompanied by their nurse, Bertha “Nana” Hector, boarded the steamship Duchess of Atholl on a 10-day voyage to Quebec. “All we can do,” Sylvester Gates wrote Frankfurter, “is to thank you from the bottom of our hearts for what you are doing for them.”
Surprised by the suddenness of the children’s arrival in Canada, Frankfurter turned to his contact for helping European Jews gain entry into the United States, Jacob Billikopf. The director of the Federation of Jewish Charities in Philadelphia, Billikopf dedicated himself to helping European Jews escape the Nazi regime and developed numerous contacts in the United States and Canada. He phoned Cyril James, the principal and vice chancellor of McGill University. A member of the Refugee Section of the American Friends Committee, James agreed to meet the children and their nurse in Montreal and put them in a sleeper car on a 9:00 p.m. train bound for Baltimore. In Baltimore, they were met by Edwin C. Zavitz, the headmaster of the Friends School, who agreed to take the children for the summer. The Gateses received a telegram from the nurse that the children had made it safely across the Atlantic Ocean rife with German submarines and were happy with the Zavitz family. The Frankfurters, whose Washington home was closed for the summer, telephoned the Zavitz household at 7:45 p.m. on the Gates children’s first night in Baltimore to find Oliver sleeping and Ann and Venetia playing with the Zavitz children.
The arrival of three British refugees and their nanny made the newspapers. The Baltimore Sun reported that Ann wondered why the cars were on the wrong side of the road and did not need drivers because they were sitting in what the British consider to be the passenger seats. Ann and Venetia delighted in playing with the automatic doors at the drugstore. The newspaper failed to connect them to Felix and Marion Frankfurter, who declined all media requests. “It is a joy to us to have the children under our wing,” Marion wrote Pauline. “Incidentally I detect signs of morbid curiosity and amazement in certain of our friends who have children. But I think we won’t do so badly as parents, though F[elix] and I will often disagree—I can see that.”
The children escaped London just in time. On September 6, Germany began the Blitz—days of continuous nighttime bombings that lasted until May the following year. Sylvester slept many nights at his office in the Ministry of Information; Pauline vacated their sixth-floor apartment and slept in a crowded bunker with other tenants. Their children were unquestionably better off in America.
On September 24, the Frankfurters drove to Baltimore to pick up Ann and Venetia Murray and Oliver Gates and his nurse Nana and moved them into their home at 1511 Thirtieth Street. The two girls occupied one of two large adjoining rooms on the top floor; Oliver and Nana occupied the other. School was all arranged. In August, Kay Graham had made inquiries at Washington area private schools for Ann and Venetia on the Frankfurters’ behalf and had helped the girls land full scholarships from her alma mater, the Potomac School. For the time being, three-year-old Oliver would stay behind with nurse Nana. Almost immediately, he became the star of the household. Every morning, after finishing his own breakfast, Oliver sat quietly next to Felix watching him eat. The children called them Uncle Felix and Aunt Marion.
For 50-year-old Marion and 57-year-old Felix, the presence of three British children in their home changed their lives. It exposed the childless couple to the joys of parenthood and emphasized the perilous times in which they and the children’s parents lived. “The children never ask about the war, have not heard the radio since they came, and I doubt if they see a paper,” Marion wrote Pauline Gates. Felix was astonished at how easily the children adjusted to life in America.
The war, with or without the children, was always on Frankfurter’s mind. “Never in my life have I so unremittingly kept my mind sealed on the calendar,” he wrote Monte Lemann. “Every day that passes means a day for civilization & freedom.” On the night of October 1, he entertained British ambassador Lord Lothian, whom he had known since World War I, and Sir Walter Layton, a Liberal Party politician working in the Ministry of Supply. Soon after advising Stimson about the destroyer deal, Frankfurter confided to a colleague that it was hard to concentrate on the job he had been confirmed to do. “Do the certs. seem as dreary to you as they do to me—less interesting than the stream of the last two Terms?” he wrote Stone. “Or it is merely that my thoughts are largely elsewhere—‘over there,’ with all that the Battle of Britain means to them and to us.”
