Democratic Justice, page 8
During the last few months, Frankfurter and Valentine had become incredibly close running the house as a Bull Moose political salon. In a letter to a skeptical Sophie Valentine, Frankfurter defended Roosevelt against charges that the Colonel was a fly-by-night progressive. He knew all about Roosevelt’s record. As governor of New York, Roosevelt had played ball with party bosses yet had fought for a more progressive tax system. As president, Roosevelt had come into office at “the high tide of national smugness,” not to mention his imperialistic control of territories gained during the Spanish-American War and acquisition of the Panama Canal Zone. Yet Roosevelt’s administration also had championed conservation efforts, civil service reform, and labor legislation. Frankfurter recognized Roosevelt’s “deep blemishes, the crudities, at times even the brutalities, of a fighter” but believed in Roosevelt’s “open-mindedness, his responsiveness to new insights, to new convictions—this is one of the great gifts of his usefulness—his capacity for growth.” Frankfurter concluded his letter by apologizing because he had been “very much derelict in my duty as a reporter of the truth, but that is because Bob and I have been having such a riotously sober good time of it.”
Valentine’s resignation nearly pushed Frankfurter over the edge about quitting his job and joining the campaign. The only thing holding him back was his loyalty to Stimson. A tortured Frankfurter, on vacation in Massachusetts, wrote to Stimson out West submitting his resignation: “I find now the call for active work in the Progressive Party is too insistent, too dominant, not to be heeded if I have fairly considered all the controlling considerations.” Frankfurter planned to return to Washington and vowed not to leave his post until he heard from Stimson. Upon receiving the letter in Yosemite, Stimson replied on September 19 that Frankfurter was making a mistake. There was not enough time for him to make a difference in the campaign. The “real work to be done,” Stimson argued, was to unite progressive factions for the general election. Frankfurter promised to think it over and awaited Stimson’s return to Washington in early October.
A less-than-thrilled Valentine ratcheted up the pressure on Frankfurter. “If you haven’t heard from T.R. by the time you get this, please wire me, letting me know also when you feel you can cut loose,” Valentine wrote on September 22. He dismissed the two people advising Frankfurter to stay: Brandeis and Stimson. “I return Brandeis’s note to you,” Valentine wrote Frankfurter. “He is making such remarkable statements in this campaign that I do not like to keep incriminating documents in my possession.” Valentine, who rejected Stimson’s suggestion that he regretted leaving the administration, insisted that he had never been happier. He believed that Frankfurter’s “real job at the present time is with the Colonel himself” and told Frankfurter to wait for a call from the candidate. Roosevelt, Valentine said, needed Frankfurter more than Stimson: “With the Colonel you might well be a turning factor in the whole campaign.”
It is unclear whether the advice from Stimson and Brandeis, the futility of leaving the administration with less than two months left in the campaign, or pragmatic career concerns changed Frankfurter’s mind. Whatever the reason, he stayed in the War Department. “[A]fter much and dubious searching of heart I have decided it’s my bigger job to stay and I can only hope that it won’t come up to plague me in the years to come,” Frankfurter wrote fellow Bull Mooser Learned Hand. “I’m clearer than ever in the raison d’etre of the movement and equally clear that it should be fought on the assumption of not being successful this year.”
Frankfurter’s loyalty to Stimson and willingness to stay in the Taft administration paid off. In August, his housemate Winfred Denison was named to a three-member commission to investigate the U.S. Board of General Appraisers, an administrative body that heard customs and tariff appeals. After one of the other members dropped out in mid-October, Taft named Frankfurter to the commission and Denison the chair. Their experiences on the sugar fraud cases made them well qualified for the job. Frankfurter and Denison were young, ambitious lawyers with too much to lose by quitting the administration to join the final weeks of a quixotic campaign.
On October 14, Roosevelt was speaking in Milwaukee when he was shot in the chest. Fortunately, the bullet hit his glasses case and a copy of his speech in his right breast pocket. He spoke for another fifty minutes with blood soiling his shirt and the bullet lodged in his rib cage. “It takes more than that,” he remarked to the crowd, “to kill a Bull Moose.” Roosevelt survived, but his bid for the presidency was already dead. In November, Wilson won easily with 435 electoral votes compared to eighty-eight for Roosevelt and eight for Taft. The New Jersey governor was the first Democrat to win the White House since Grover Cleveland twenty years earlier.
The outcome of the election had done nothing to temper the idealism of Frankfurter and his housemates. Eustace Percy wrote an essay proposing the adoption of a British civil service model in America. In December, Frankfurter circulated an anonymous copy to Roosevelt and let the Colonel know that all had not been lost during the campaign. He credited Roosevelt with inspiring “inquiries into the underlying cause of our social unrest, and the desire for an organized effort to understand and direct it.”
After the election, Frankfurter stayed in the War Department until the end of Stimson’s term and beyond. In late November and early December, he joined Stimson on a tour of the Panama Canal Zone. At Stimson’s request, Frankfurter saw the completion of several water-power projects under Wilson’s new secretary of war Lindley Garrison. In Frankfurter’s eyes, Garrison paled in comparison to Stimson as a public servant. When Stimson left office at the end of the Taft administration, Frankfurter co-authored a 47-page review of Stimson’s War Department stewardship of the Panama Canal Zone, insular territories, and peacetime reorganization of the military and published a long summary in the Boston Evening Transcript. Stimson was grateful for Frankfurter’s loyalty and for the public recognition; Frankfurter was grateful to Stimson for bringing him to Washington. Their partnership in government was over, at least for now.
CHAPTER 5
To a Man, We Want Frankfurter
During the early days of the Wilson administration, Frankfurter faced a career crossroads. He wanted to advance Roosevelt’s New Nationalist ideas of using the federal government to achieve labor reform but was unsure of the best way to accomplish it. Each of his options emphasized one of his talents and interests. Instead of stewing about his job prospects or lurching from one extreme to another, he wrote a four-page memorandum and circulated it to his friends who were pulling him in different directions.
Frankfurter could go into business with his former housemate Robert Valentine. Upon his return to Boston, Valentine had set up shop as the nation’s first “industrial counselor.” He pitched himself as a disinterested expert who could work with labor and management. Most important, he wanted Frankfurter to join him. “We have discovered—you and I—the center of the universe . . .,” he wrote his “co-trustee” Frankfurter in December 1912. “Don’t make any plans for the future—either for yourself or the Universe—until we have stood at the center of it together and discussed things. This is a far cry from lying on the floor of the front room at 1727.”
In July 1912, they had laid on the floor of the House of Truth and had written an eight-page outline proposing solutions to conflicts between labor and management. Inhumane conditions, low wages, and long hours had taken their toll on America’s industrial workers. The Triangle Shirtwaist fire in March 1911 in New York City had killed 146 garment workers, mostly young women. Locked in their workspace, some women had jumped from the burning building rather than suffocate to death. During the Lawrence, Massachusetts, textile mill strike from January to March 1912, 20,000 women had walked off their jobs after management had reduced their pay because of a new state law lowering the maximum workweek from fifty-eight to fifty-six hours. The radical Industrial Workers of the World (IWW) had organized the Lawrence strike and several others, stoking fears of Socialism.
In their eight-page outline titled “A Tentative Social Program,” Frankfurter and Valentine addressed the effects of industrialization on workers and believed they had discovered the key to resolving labor problems—a stronger, more powerful government. “Government,” they wrote, “is the readiest and best fitted administrative means through which the conception of the people as to their welfare may find realization in action and, rightly understood, becomes the most potent affirmative social agency on behalf of all the people.” By tapping into the power of the federal government as well as that of the state governments, they wanted to level the playing field between labor and management. They proposed administrative regulation, revised election laws, and more progressive taxation. They believed that disinterested experts in and out of government could create an “industrial democracy.” In their ideal scenario, management recognized unions as the legal representatives of all workers; unions embraced scientific management to capture efficiencies associated with industrialization; and management and labor recognized their interdependence and worked together to solve their problems. With their “social program,” Valentine and Frankfurter joked that they had “worked out our general scheme of the Universe.”
After the 1912 election, Frankfurter encouraged Valentine’s industrial counseling business and gave serious thought to joining him. “Dear Pardner . . .,” Frankfurter wrote, “I don’t know what else you’ve done, but you’ve sent coursing through my veins the rapturous champagne of your courage and imagination and humor and sanity that cannot be in vain, were it not sufficient unto itself.” Frankfurter and his friends were enthusiastic about the possibilities of Valentine’s new business and commented on his prospectus. In January 1913, they met Valentine in New York City for dinner and continued their discussions the next day on the drive to sculptor Gutzon Borglum’s Connecticut home, Borgland. Frankfurter admired Valentine’s fearlessness in “going it alone.” Yet he procrastinated about making a decision to join Valentine because of a crush of War Department work. “The silence is the silence of much thinking and more longing for a union of the universe,” he wired Valentine in February 1913.
In an article for The Survey, Frankfurter channeled his ideas with Valentine about the ability of government to improve the lives of industrialized workers with his Thayerian belief that the judiciary should not interfere with socioeconomic legislation. He criticized the American Bar Association for rejecting Roosevelt’s ideas about the recall of unpopular judicial decisions without offering any solutions for judicial overreach. In an age of industrialization, he described government “as the biggest organized social effort for dealing with social problems” and proposed “social legislation” dealing with “economic and social conditions” and “the stuff of life.”
During the transition from Taft’s administration to Wilson’s, Frankfurter found he did not have time to think beyond the issues of the day. On February 15, he and Denison concluded their investigation of the Board of General Appraisers. In an eighteen-page report, they recommended a reorganization of the board and its duties. Relying on their findings, Taft fired two board members for malfeasance and incompetence in one of his last acts in office. Frankfurter also defended Puerto Rico and other territories before the Supreme Court. In April, he argued Tiaco v. Forbes defending the governor-general of the Philippines’ deportation of a Chinese immigrant on the basis of the U.S. government’s inherent power over immigration. Holmes’s unanimous opinion affirmed the deportation. Other justices privately praised Frankfurter’s argument.
In Valentine’s absence, Frankfurter and Denison maintained the spirit of the House of Truth by throwing frequent dinner parties. They celebrated a weekend visit from Valentine in March with a round of lunches and dinners and hosted a going-away party later that month for housemate Loring Christie, who was returning to Canada to work for Prime Minister Robert Borden. Another night, they invited Justice Horace H. Lurton. A Taft nominee and Kentucky Democrat, Lurton took his cocktails seriously. “I hope you mix drinks as well as you argue cases,” he said to Frankfurter. A few minutes later, he added: “You mix drinks even better than you argue cases.” The parties often lasted late into the night. “Felix keeps us alive most of the time,” Denison wrote Frankfurter’s mother, Emma. “The only trouble with him is that he wants to sit up all night and sleep all day. And he’s terribly slow about getting dressed and washed and down to breakfast. Why in the world did you fail to teach him that black air means night and time to sleep and that white air means day and time to be awake?” Some people, including Brandeis, thought Frankfurter and Denison needed to socialize less and to work more. “You are right about Frankfurter’s excessive sociability,” Brandeis wrote his wife. “[Attorney General James] McReynolds criticised Denison also on that score.”
Brandeis’s humorlessness may have been one of many reasons why Holmes was the house’s favorite guest. Holmes, his wife Fanny, and his new secretary, Stanley Clarke, attended Christie’s farewell party. Fanny Holmes revealed that, contrary to her reputation as a recluse, she liked to socialize and to play practical jokes. For a children’s party at the house, she sent a pie with ribbons coming out of it. When the children pulled the ribbons, they discovered presents instead of dessert. A live monkey playing a hand organ also appeared through the window. She bought the men a housewarming gift, a wren house for the backyard. “Truth may still be at the bottom of the well,” Frankfurter wrote her, “but you have brought up for us—joy. A bountiful summer to you! In grateful humility. Your House of Truth.”
During the summer of 1913, Frankfurter pondered another career opportunity, a Harvard Law School professorship. Denison broached the idea with one of the school’s younger professors, Edward “Bull” Warren. After consulting the faculty, Warren reported: “To a man, we want Frankfurter.” Frankfurter did not think he was worthy of joining a faculty that had included case method founder Christopher Columbus Langdell, judicial review theorist James Bradley Thayer, former dean James Barr Ames, or property scholar John Chipman Gray. Of Frankfurter’s worthiness, Brandeis replied: “I would let those who have the responsibilities for selecting you decide your qualifications and not have you decide that.”
Teaching at Harvard Law School, Frankfurter wrote in his memorandum, would allow him to mentor the nation’s future leaders who would shape “jurisprudence to meet the social and industrial needs of the time” and to wrestle with “the great procedural problems of administration and legislation.” He knew he was not a traditional legal scholar who would churn out law review articles. Yet, together with Roscoe Pound, Frankfurter believed that he could apply the social sciences to law in a way that would revolutionize the law school and the careers of its future graduates.
Frankfurter analyzed the competing options. First, there was “the Valentine thing.” That path would force him to give up the law and waste his legal training and experience. Second, Frankfurter could stay in the Wilson administration. He never warmed to Wilson, whose “inscrutable secretiveness,” “Southern-Democrat” atmosphere, and “party solidarity” bothered him. Frankfurter’s boss, Lindley Garrison, was nice enough but a “first-class mediocrity.” Third, Frankfurter could practice law in New York City and become the city’s “citizen-lawyer” like Brandeis in Boston. Private practice, however, never appealed to Frankfurter. He did not like kowtowing to clients or advocating positions in which he did not believe. Finally, Harvard Law School, he concluded, was the “best five years’ investment ahead.” If he didn’t like it, he would be young enough to change course. Rather than make a hasty decision, Frankfurter circulated his memorandum to friends and mentors.
The childless Stimson and his wife, who considered Frankfurter a surrogate son, opposed the idea. Stimson thought that Frankfurter’s “greatest faculty of acquaintance, for keeping in touch with the center of things,—for knowing sympathetically men who are doing and thinking,” would be lost on the professors and students. Frankfurter, Stimson argued, belonged “at the center of the great liberal movement which [is] now going on in national and industrial life.” Researching criminology with Roscoe Pound would be a “side track.” Nor did Stimson think that Frankfurter and Pound were compatible personalities. Stimson advised Frankfurter to return to New York, not out of a selfish desire to practice law with him but because he thought it would suit him best. Thanking Stimson for his advice, Frankfurter replied that the offer was not limited to criminology and that the divide between academia and politics was not so vast. He pointed to University of Wisconsin professors who had influenced state social reform. And he was not persuaded that Wall Street law practice would put him at the center of a liberal political movement.
The leader of the liberal movement, Theodore Roosevelt, urged Frankfurter to return to New York law practice and warned him that if he became a professor he would “have to adjust [his] wants.” His future wife would have to “be content with a simple life” because his salary would remain mostly the same. Learned Hand was no more enthusiastic about Frankfurter joining the Harvard law faculty than was Stimson or Roosevelt. Hand thought Frankfurter should stay in the War Department with Garrison; Harvard Law School was not going anywhere. “What does Holmesy say?” Hand asked. “I suppose that you have writ[ten] him before now.”
With Holmes visiting friends in Britain and Ireland, Frankfurter asked to delay his decision for a few weeks until he heard from the justice. In a July 4 letter, Frankfurter presented the offer as a five-year tryout. Holmes’s experience in academia had been short and unfulfilling; he had bolted the Harvard law faculty after only a few months in the fall of 1882 to accept a judgeship on the Massachusetts Supreme Judicial Court. Replying on July 11, Holmes suggested that Frankfurter pursue private practice rather than teaching law and believed he would get “more nourishment from economics than from criminal law.” The only advantage to teaching was that it would protect Frankfurter’s health and allow him to slow down. Finally, Holmes objected that “academic life is but half-life—it is a withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister.”
