FELIX FRANKFURTER, in his diaries and his classic oral history, 2 Felix Frankfurter Reminisces, is a highly readable and voluble source on himself. We know quite a lot about the pre-judicial Frankfurter who is Michael Parrish's subject here--how he was brought as an immigrant boy of eight from Vienna to New York, shone at City College and then at Harvard Law School, apprenticed himself to the Roosevelt-Stimson-Taft Republican mandarinate, and became a legendary teacher of law (or, as some said, of himself).
Despite this orthodox mainline career, he managed to gain if not earn the reputation of a radical. That, he never was, though it is interesting that some people thought so, especially after his devastating attack on the Sacco-Vanzetti trial.
Knowing Frankfurter, then, as we feel we do--and brilliant appreciative essays by Isaiah Berlin, Max Isenbergh and others have helped--what is left is a job of interpretation and coordination; a job which Parrish handles with some flare in this first of two volumes.
Parrish borrows a characterizing term from Lionel Trilling: "the young man from the provinces." Such was Frankfurter's charm that he never lacked urbane patrons. Himself a beneficiary of the meritocratic system, Frankfurter never ceased to value and defend it-- whether as the advocate of government by an educated clerisy of "experts," or as a fighter against the attempt to insinuate Jewish quotas at Harvard Law School.
Parrish is unfortunately a bit patronizing about the tutelage of Henry L. Stimson, under whom Frankfurter served when Stimson was U.S. attorney for southern New York and, later, secretary of Interior and of War. He mistakes the unconsidered racialism of the pre- World War I era for something more virulent, writing, too harshly, that Stimson "like the president (Teddy Roosevelt) believed that all coons looked alike."
He is equally scathing (and condescending) about the criminal libel charge which Stimson and Frankfurter, at TR's instigation, cooked up against Joseph Pulitzer, when the latter's New York World accused TR of allowing his friends to profiteer in the acquisition of the Panama Canal interest from France.
By today's standards of First Amendment construction, they were guilty of excess--as federal judges recognized in dismissing the suit. But a biographer ought to provide some extenuating perspective when it is relevant; and Parrish says nothing of the irritating evils of yellow journalism, in which Pulitzer was then involved up to his ink-stained elbows.
It was labor mediation during World War I, especially in the troubled copper mines, that first brought the young Frankfurter national repute. His observation of the callous mine bosses seems to have whetted the social consciousness that would lead him by the mid-'20s to that reformist activism that detractors saw as radical.
Zionism, another all but forgotten Frankfurter enthusiasm of the wartime and postwar period, was, as Parrish observes, something of an anomaly for Frankfurter. His orientation was that of an assimilationist--"a Jew," he wrote to Walter Lippmann, "is a person whom non- Jews regard as a Jew."
But Justice Louis Brandeis, who was beginning to rival Stimson as a mentor, had contrived to give Zionism (at least its American branch) a progressive flavor and twist, even as the assimilationist ethos was strained by a postwar recrudescence of anti-Semitism. So, like many of the brilliant young men of his generation, Frankfurter was to be found at the 1919 Versailles Conference, advising the U.S. Zionist delegation. He enjoyed his greatest triumph in that role one day in the Bois de Boulogne when he persuaded Prince Faisal and T.E. Lawrence of the justice of Jewish hopes in Palestine.
Later, as the first Jewish professor at Harvard Law School, he devoted his abundant energies to resisting (unsuccessfully on the whole) Dean Roscoe Pound's effort to turn the school into a "General Motors" of law studies. His devotion to the elitist ideal persisted. Of his own time as a law student in Cambridge, he recalled: "The great thing about the School . . . was that Skull & Bones, Hasty Pudding, an H, family fortune, skin, creed --nothing particularly mattered, except scholarship and character objectively ascertained."
It was in his early professorial years that Frankfurter confirmed, and refined, his convictions about the limits of judicial competence--with a mighty assist from Judge Webster Thayer's performance at the Sacco-Vanzetti trial: but also--as Parrish intriguingly speculates--as a result of his confidential correspondence with Holmes and Brandeis. They confided the innermost secrets and eccentricities of the Supreme Court. "Privately," Parrish writes, "he knew that (Justice) Van Devanter's solicitude disguised a writing block that bordered upon complete impotence and that (Justice) McReynolds' 'savage' conduct arose from feelings of insecurity and rabid anti-Semitism." He judged judicial review accordingly.
The last of the tutelary relationships which Parrish considers is the one we know best, between Frankfurter and Franklin D. Roosevelt. There is little to be added to the familiar story of this famous friendship. Max Freedman's wonderful edition of the Frankfurter-FDR letters tells it all, although Parrish emphasizes the importance of Frankfurter's rejection of the solicitor-generalship to go to Oxford in 1934 as Eastman Professor.
Frankfurter's sojourn in England brought him into touch with John Maynard Keynes, for instance, and braced his view that the early New Deal programs were not working; that reflation would proceed only from bold government spending and a vigorous assault on what Frankfurter was, by 1936, calling "economic fascism." Frankfurter was pressing Keynes' ideas on Roosevelt before Keynes himself; he was the bearer of the private version of Keynes' letter to FDR before it appeared in The New York Times.
The Reform Years closes with Frankfurter's appointment to the Supreme Court, as to which, as Parrish shows, a great mythology has grown up. The myth was that Frankfurter did not campaign for the appointment. But there was an elaborately planned campaign by friends in his behalf with his full consent and knowledge.
Parrish's book, which adds substantially to our understanding of Frankfurter, is marred by too many minor but irritating stylistic errors that better editing should remove but critics (and critical readers) are sure to notice: "principle" for "principal" (several times); "numerus clauses" for "numerus clausus"; "vascillated" for "vacillated"; "Lord Asquith" (he was then plain Mr. Asquith, and never "Lord Asquith"); "Lady Nancy Astor" (she was always either Nancy Astor, or Lady Astor).
These blemishes notwithstanding, Parrish is good; and his coverage of the Court years will be worth waiting for.