Even in a life as blessed as my own with teachers like Benjamin Cardozo, Felix Frankfurter, A. Philip Randolph, Eleanor Roosevelt and Reinhold Niebuhr, the unceasing wisdom and selfless public spirit of Ben Cohen stand out as an incomparable role model. I am sure I speak for hundreds of men and women, many now departed, whose lives were deeply affected by Ben's teaching in word and deed that working in the public interest is the highest and happiest of callings.
The first time I saw Ben Cohen was in September 1935. He had already made his mark as the author of Roosevelt's laws cleansing the financial markets. Newly enrolled in the New Deal directly from law school, I was assigned to help Ben with the defense of the Holding Company Act he had drafted.
From what I had read in the press, I expected to find a sharp-featured, fast-talking, brash New York lawyer giving orders to a big staff a mile a minute. Instead, there I was looking, at a reserved, kindly, sensitive and quiet man who acted as if the acquisition of a "lawyer" just out of law school were the equivalent of Blucher's reinforcement of Wellington at Waterloo.
He told me (his high-pitched voice rising to demonstrate he wasn't always quiet) that "that yellow-belly" John W. Davis was trying an end run with a collusive suit against the Holding Company Act by a bankrupt holding company, and that's the case I was to start working on right away in the next room. What a beautiful learning experience watching Ben outwit Davis at every turn! Scholars of constitutional litigation will look in vain to find a more spectacular legal performance than Ben's victory over Wall Street's best and brightest.
I never worked for Ben in any formal sense after that 1935-36 year on the Holding Company litigation, but somehow I feel I was always working for him the entire 47 years since then. For whether you went to Ben's office to seek his advice or he telephoned to volunteer it concerning some problem or case on which he knew you were working, you always had the feeling he was the guiding spirit of affirmative government-- in a true sense the counselor for the public interest.
I remember one day in early 1939 when Irving Levy and I, working as lawyers in the Wage and Hour Division of the Labor Department, faced what we then thought was a pretty monumental problem concerning the enforcement of the law Ben had largely drafted. We told him of our fright as Jews that all the first indictments about to come down under the Wage-Hour law for sweatshop violations of the then 25-cent minimum wage would be of Jewish-owned companies and this would add to the current wave of anti-Semitism.
Like a father comforting two perturbed children, Ben said quietly, "Well, that's fine; you two be the good guys and do the prosecuting and, Irv, you make sure the papers know Joe is Jewish, too."
War was never far off in the late '30s, and no one saw the coming storm more clearly than Ben. I remember his telling Justice Cardozo as early as 1937 that he wished he could take a year off and study world affairs because international disaster was at hand. When Hitler invaded Poland in September 1939, Ben went to war. He became the leader of the group of young government executives and lawyers determined to prepare the nation for the inevitable day of our entry into the war and to keep our potential allies afloat until then.
Possibly his greatest contribution was the destroyer deal. Britain desperately needed our old destroyers, but Congress was reluctant to act. Ben built the case for executive action with meticulous care (he could be a slave-driver to volunteers combing libraries for precedents and arguments) and then sold it throughout the Roosevelt administration. Possibly nothing shows the breadth of his interests and vision better than his ability to turn from the reform of our capitalist system at home to the task of stalemating Hitler's threat to our democracy from abroad.
Ben's foresight on world affairs was not limited to World War II. In the 1950s, when most people didn't know where Vietnam was, Ben used to say there was grave danger of our getting involved in that country. As our involvement escalated, so did his advice to stay out. He would get so worked up on the subject that Dave Ginsburg once suggested we limit Vietnam discussions to 30 minutes at the various dinners we all had together.
Ben's happiest days were in government service. No task was too time-consuming or too hopeless. He and Tom Corcoran had a night male secretary who would type into the wee hours of the morning. Once in a while Ben would sneak out to the late show at the closest movie house (my wife saw him heading for the famous Hedy Lamar "nude" movie), and usually he was asleep by the time the credits were finished. The office joke was that the best way to sleep with Ben was by going to the late show with him.
His wisdom was always available to those who sought or would heed his counsel even after he left the government in the 1950s. But he had no office and wrote little on the subjects about which he knew so much and cared so deeply. Many lawyers sought his association, but he always said no.
Ben was unwilling to apply his talents to representing the interests he had fought in his government days; his head and his heart never forsook the New Deal. He was, to the end, the perfect public interest lawyer.