Goldstein, Milton I.

English

Washington University St. Louis: Open Scholarship

Washington University Law Review Volume 1960 Issue 4 1960 Review of “Felix Frankfurter Reminisces” Milton I. Goldstein Goldstein and Price Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Recommended Citation Milton I. Goldstein, Review of “Felix Frankfurter Reminisces”, 1960 WASH. U. L. Q. 388 (1960). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1960/iss4/6 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. BOOK REVIEWSFELIX FRANKFURTER REMINISCES; Recorded in talks with HarlanB. Phillips. By Felix Frankfurter. New York: Reynal & Co., 1960.Pp. ix, 310. $5.00.The death of Justice Cardozo in the summer of 1938 created avacancy on the Supreme Court of the United States. In October,Professor and Mrs. Frankfurter were invited to spend the weekendat Hyde Park. There, President Franklin D. Roosevelt explained tohis guest that he could not appoint him because he had "given verydefinite promises to Senators and party people that the next appoint-ment to the Court would be someone west of the Mississippi." Heasked Professor Frankfurter, then and later, for his opinion of thoseunder consideration, including Wiley Rutledge, Dean of the LawSchool of the University of Iowa, and formerly of Washington Uni-versity, St. Louis.On Tuesday evening, January 4, 1939, the phone rang in the studyof the Frankfurter home in Cambridge, Massachusetts. "There wasthe ebullient, the exuberant, resilient warmth-enveloping voice of thePresident of the United States." Mrs. Frankfurter had just gonedown, at the sound of the doorbell, to receive their dinner guest,admonishing her husband who was still dressing: "Please hurry!You're always late."After the usual pleasantries, the President said: "You know, Itold you I don't want to appoint you to the Supreme Court of theUnited States.""Yes, you told me that.""I mean this. I mean this. I don't want to appoint you to theSupreme Court.""Here I was in my B.V.D.'s, and I knew Marion would be as soreas she could be. She had said I'm always late which is indeed sub-stantially true .... You know, he was given to teasing. Some peoplesaid that it was an innocently sadistic streak in him. He just had tohave an outlet for fun.""I was getting bored, really, when he whipped around on thetelephone and said, 'But unless you give me an unsurmountableobjection, I'm going to send your name in for the Court tomorrowat twelve o'clock'-just like that, and I remember saying, and it isnatural to remember this very vividly-'All I can say is that I wish mymother were alive.'"In this manner, Felix Frankfurter recounts how he was notified ofhis appointment to the Supreme Court. Similarly, he details signifi-cant events in his life from the time he arrived from Vienna as anWashington University Open ScholarshipBOOK REVIEWSimmigrant, not yet twelve, unable to speak a word of English, untilhe went on the bench. The reader follows him through the New Yorkpublic schools and City College to the Harvard Law School, wherehe finished first in his class. He wanted to practice law but not tohave clients. He solved the dilemma by joining the staff of Henry L.Stimson, U. S. Attorney in New York City and later served as assis-tant to Secretary of War Stimson and his successor in the Taft andWilson administrations. In 1914, eight years after graduating, heaccepted an invitation to teach in the Harvard Law School, againstthe advice of Justice Holmes and Mr. Stimson. With the outbreakof war in 1917, he returned to Washington, serving on the President'sMediation Commission, War Labor Policies Board, and on specialmissions. He recounts his experiences in connection with the investi-gations and critical reports on the Mooney case and the Bisbee depor-tations, as well as the ill conceived Morgenthau mission; his atten-dance at the Paris Peace Conference and participation in the Zionistmovement; the post-war years at Harvard, the Sacco-Vanzetti case,his role as a critic of injustice and government abuse of power, andhis relationship with Franklin Roosevelt and the New Deal.The book is a transcript of a series of tape recorded interviewswith Dr. Harlan B. Phillips of Columbia University's Project inOral History. Justice Frankfurter was one of many subjects whosepersonal reminiscences were recorded for the use of future scholarsand historians. At the time the recordings were made, there was nothought of their immediate release. Later, the author was urged toconsent to the present publication, which he did, either (as he states)"through weakness or good nature."Ordinarily a book prepared on the basis of spoken questions andanswers would have obvious limitations. But Justice Frankfurteris an uncommon conversationalist. In his hands, the method pointsup the searching quality of his mind, his spontaneous expression andsparkling wit. What emerges is an intimate self-portrait by one ofthe most provocative and intriguing figures of our time, prepared byan artist who paints with broad strokes and deep colors.His views in the main are not pallid, neutral beliefs, but convic-tions fervently held and stoutly maintained. He is a "romantic be-liever in reason." He "cared passionately" about the law and itsAnglo-American antecedents, becausefragile as reason is and limited as law is as the expression of theinstitutionalized medium of reason, that's all we have standingbetween us and and the tyranny of mere will and the cruelty ofunbridled, undisciplined feeling.He has "a quasi-religious feeling about the Harvard Law School" andits democratic spirit where all that "mattered was excellence in yourhttps://openscholarship.wustl.edu/law_lawreview/vol1960/iss4/6WASHINGTON UNIVERSITY LAW QUARTERLYprofession .... People work like hell because the atmosphere in theschool is exciting." He leaves no doubt it was fate that intervened tosave him from tragedy on the day he set out to enroll at another lawschool but was persuaded by a friend, just in time, to go to ConeyIsland instead, where he "blew in" the ten dollar matriculation fee.By the time he was ready to make a second try, he had decided toenter Harvard.Prominent among his heroes are his teachers; James Barr Ames,Jeremiah Smith, Samuel Williston, John Chipman Gray and others,whose courses were designed to produce, not disciples but colleaguesdedicated to the search for truth. Lawyers should not be "collabora-tors in their client's short-sightedness ...a lawyer is a counselor,an advisor. He isn't just a hired man to do the bidding of his clients,but he must exert the independence of his mind and understandingupon the conduct of his client's business."He describes his relationship with the students he recommendedfor positions with private firms and to the legal staffs of governmentagencies. Referring to the suggestion that there was "some cunning,conspiratorial, sinister" explanation "of how Felix Frankfurter filledthe government with his cohorts, his disciples, whatnot," he states:they have no understanding of my relations with these youngmen. They have no understanding of the kind of independence-that we're just all in the same boat in being-as it were, partof the ministry of justice, part of the great company of lawyerswho serve law, and that the bond was just the bond of fellowshipof ideas and purposes and nothing more complicated than that.Candor is stimulated when one is requested to express his opinionas an aid to scholars and future historians. The appraisals are frankand terse. Taft was a poor President because he was not interestedin the job; he wanted to be on the Supreme Court. Wilson was verydogmatic-he could not participate in discursive argument. Hooverhad "no touch at all for politics in the best sense of the term.""Harry Hopkins had a feeling of a mistress toward President Roose-velt." Justice McReynolds was a "rude, primitive creature" whom hedespised but respected. R~oscoe Pound "a near genius," was "a timidcreature. His weakness was weakness." Harlan Stone was "a manof great vanity, a very considerable self-deceiver."The author's comments about himself are also revealing. As astudent, he was timid, "a shy sensitive kid." As an assistant U. S.Attorney trying his first jury case, he was "scared stiff." He relatesthe "awful torture" involved in making the argument to the jury. Hebelieved that he was "a little fellow not very impressive looking."When asked to teach at Harvard, he told Justice Brandeis he feltinadequate for the job. At that time, he thought his mind wasWashington University Open ScholarshipBOOK REVIEWS"probably more incisive, illuminative, tough enough insofar as itgoes, than profoundly creative, capable of powerful generalizations";and he questioned its scope. Unlike the "gentle, saintlike Cardozo,"he thought he could handle McReynolds: "a tough-skinned fellow likeme could deal with him because I could be just as rude as he could be."Justice Frankfurter has provided illuminating flashes of a signifi-cant period of history, perceptive glimpses of many important per-sonalities, and an absorbing account-in the best tradition of theAmerican dream-of how an immigrant boy became a Justice of theSupreme Court. More important to the Bar is the sense of dedicationto the law and its institutions which the book reflects, the high stand-ards prescribed for the lawyer as a professional man, as a citizen,and as a public servant. At a time when there is increasing concernabout the undue emphasis placed upon material values and the trendtoward conformity, "Felix Frankfurter Reminisces" might well berequired reading for law school students, their teachers, and othermembers of the profession.MILTON I. GOLDSTEINtTHE PRICE DISCRIMINATION LAW; A REvIEW OF EXPERIENCE. ByCorwin D. Edwards. Washington, D.C.: Brookings Institute, 1959.Pp. xxii, 698. $10.00.The Robinson-Patman Amendment to the Clayton Act has beencarefully scrutinized in Corwin D. Edwards' recent book. ProfessorEdwards, an economist, thoroughly analyzes cases involving theamendment which have been tried before the courts, the FederalTrade Commission and its hearing examiners as of December 1957.This collection of cases will be of use to any lawyer interested in theinterpretation of this statute.Though the sentence structure is at times cumbersome, the materialis presented clearly and in an orderly fashion. Specialists in thefield of price discrimination, as well as those attorneys who enjoy ageneral practice, will find this book an invaluable source of relevantmaterial.Professor Edwards, by analyzing the official handling of variousfact situations, attempts to find a pattern which one may expect thecourts to follow in subsequent cases.The author's most interesting suggestion involves a dual interpreta-tion of the word "competition." He believes it may have one meaningat the primary level and perhaps another at the secondary level.t Member of the Missouri Bar; partner in the Firm of Goldstein and Price,St. Louis, Mo.https://openscholarship.wustl.edu/law_lawreview/vol1960/iss4/6

Review of “Felix Frankfurter Reminisces”

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Review of “Felix Frankfurter Reminisces”

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