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Without Ben Cohen's contributions and mind, there would have been no Lend-Lease, no destroyer bases deal, no successful fight against inflation, no effective securities legislation, no attack upon great public utility holding companies, to name only a few. -Edward F. Pritchard
It was a scene symbolic of the New Deal itself. On one side sat the representatives of the nation's largest and most powerful public utility companies, the embodiment (or so the New Dealers would have it) of corporate greed and excess. Led by Wendell Willkie, head of the Commonwealth & Southern Corporation and soon-to-be candidate for president of the United States, they had employed the leading lights of the private bar to argue their case. On the other side were clustered the finest legal minds the federal government could muster, led by Assistant Attorney General Robert Jackson and supported by a host of admirers and well-wishers. In the front of the courtroom sat the justices of the Supreme Court of the United States; behind and around the combatants crowded the interested and the curious of New Deal Washington.
At stake on that early spring day in February 1938 was the constitutionality of the Public Utility Holding Company Act of 1935, the last in a triad of statutes designed to save the nation from the unregulated financial manipulations that had led to the crash of 1929 and the disastrous Depression. The utility companies had failed to stop Congress from imposing strict controls on their financial operations and practices; now, they had one last chance to prove that the New Deal did not apply to them.
Underscoring the importance of the case, the Supreme Court allotted six full hours for oral arguments. But the excitement surrounding Securities and Exchange Commission v. Electric Bond & Share did not keep the Court from sticking to its strict time schedule. Two other cases had to be disposed of first, and it was 4:20 in the afternoon before the case was called. A less punctilious institution than the Supreme Court might have held the case over for the next day, but Chief Justice Charles Evans Hughes pushed ahead, calling on the utilities companies to begin their case. Fully aware of the scheduled adjournment time, former Solicitor General Thomas D. Thacher rose from his seat and spoke for ten minutes, uttering his last word at precisely 4:30, just as the chief justice leaned across the bench and nodded in announcement of the end of the session.
The defendants resumed their argument at noon the next day, calling on the Court to invalidate the Holding Company Act as an illegal extension of Congress's power to regulate interstate commerce and as a violation of the Fifth, Sixth, Eighth, and Tenth Amendments to the Constitution. At 1:40 in the afternoon they yielded to Assistant Attorney General Jackson, who was responsible for introducing the government's response. Jackson, whose presentation straddled the Court's lunch break, did not conclude until after 4:15. He had done a professional job of introducing the government's case, but the more important task of convincing the justices that Congress had not overreached itself was left to his co-counsel, who after twenty-four hours of waiting at last had his chance to speak.
Awkward and unaccustomed to the public stage, Benjamin V. Cohen rose to address the Court. In deference to tradition, he wore formal striped trousers, though he chose a conventional double-breasted suit jacket in place of a cutaway coat. His nervous manner, quavering voice, and trembling hands marked him as a neophyte before the Supreme Court, in striking contrast to the seasoned veterans who had argued the utility company's case earlier in the day. Stooping slightly and peering up at the justices from behind wire-rimmed spectacles, Cohen looked more like a professor than a high-level government attorney. Certainly a different lawyer would have cut a more dashing figure, but no one could have begrudged Cohen the opportunity to present the government's argument. Though scores of lawyers had worked together on the pleadings and ten had signed the brief, everyone knew that Electric Bond & Share was Ben Cohen's case. "Every page of every brief" carries his imprimatur, wrote David Ginsburg, then a junior co-counsel. "His strategy and his intelligence characterizes every argument."
Despite the late hour and counsel's deficiencies as a courtroom lawyer, Cohen's words ran like electricity through the Supreme Court chamber. The justices, no less than the audience, were riveted. Wrote Ginsburg: "The Justice [Brandeis] relaxed with an almost beatific smile on his face; [Hugo] Black perched himself on the edge of his chair, cupped his face in his hands and didn't move.... [Owen] Roberts simply glowered and looked away; [Harlan Fiske] Stone leaned back, put his head on his chair and stared at the ceiling ... the Chief's eyes began to sparkle and he sat rigidly erect."
So mesmerizing were Cohen's arguments that the justices scarcely noticed as he spoke for seventeen minutes, holding the Court a remarkable five minutes past its scheduled closing time.
At forty-three, Benjamin Victor Cohen still enjoyed a reputation as one of the "bright young men" who had come to Washington to serve Franklin Roosevelt. His legal ability, developed at the University of Chicago and honed at Harvard, stood out as remarkable even in the talented circles of the New Deal. Already he had amassed considerable experience in finance, government, and foreign affairs, and had collected a broad range of friends and associates stretching from New York to Cambridge to London. Among his many accomplishments, he could list major roles in drafting the landmark financial legislation of the New Deal-the Securities Act of 1933, the Securities Exchange Act of 1934, and the Public Utility Holding Company Act of 1935.
Yet exactly what Ben Cohen did, and how he did it, remained a mystery even to many Washington insiders. His official title was general counsel to the National Power Policy Committee, a minor interagency board housed in the Interior Department. Unofficially he served as a kind of presidential adviser at large, consulting frequently with Harvard law professor Felix Frankfurter and often taking his cues from Roosevelt himself. On rare occasions, as in the Electric Bond & Share hearing or during the congressional debate over the utilities bill, Cohen could be seen in broad daylight, but generally he played his role in almost total darkness, leaving the public appearances to his friend and alter ego, Tommy Corcoran. While others played "palace politics," observed Newsweek magazine, Cohen "enveloped himself cuttlefish-fashion in a murky camouflage of protective privacy. He wrote no articles, made no speeches, didn't gallop in and out of the White House daily-in fact, didn't even have his name stenciled on his office door."
The clandestine nature of Cohen's activities made it easy for friends and critics alike to exaggerate his influence. He and Corcoran were easy targets for congressional opponents and the unfriendly press, who depicted them as "mysterious Johnnies-only here they are Tommies and Bennies-pulling strings, dropping whispered words in cloak rooms and back rooms and over telephones from headquarters." Cohen and Corcoran "was precisely the firm name for which the anti-New Deal politicians had been looking," explained the journalist Heywood Broun, since it could be used to attack Roosevelt's policies while at the same time stirring up both anti-Semitism and anti-Catholicism. New Deal critics depicted Cohen both as a "bumptious plotter who swaggers around the halls of Congress and puts pressure upon the President to do his will and bidding," and as "a sort of Conan Doyle villain named Prof. Moriarity [sic], who used to plot vast schemes in a subterranean den piped for lethal gas which could be administered to the unwary."
Even friendly reporters could not resist inflating Cohen's influence, if only for the sake of a good story. "In Washington it is known that the President does not take a step without" Cohen and Corcoran, beamed the Jewish Daily Forward in 1937. "The 36 year old Irishman and the 42 year old Jew are the two pillars upon which the present democratic regime rests." The following year, the Cohen and Corcoran story so gripped the Washington press corps that the two men were featured on the cover of Time magazine, above the caption "They call themselves catalysts." Eventually, even the normally staid New York Times got carried away. Reporting on Cohen's return from a visit to London, the Times called him "one of the two young lawyers said to wield more influence with President Roosevelt than any other American" and described the arrangements for meeting Cohen's ship at the Port of New York as "a system of secrecy and protection more elaborate than any remembered in the port by customs men and others who have met ships for the last generation."
Cohen's lifelong friends were also given to sweeping statements about his New Deal and wartime contributions, especially in their later years. Corcoran, perhaps, was the worst offender. "Ben was in substance our economic administration during the war," he recalled in 1969. "The whole structure of wage and price controls was his work. He built the SEC [Securities and Exchange Commission]. Even now, no man understands these forces as he does. Lend-Lease was his. He kept the civilian economy on a noninflation basis all through the war." "Without Ben Cohen's contributions and mind," echoed Edward F. Prichard, who worked with Cohen during the war, "there would have been no Lend-Lease, no destroyer bases deal, no successful fight against inflation, no effective securities legislation, no attack upon great public utility holding companies, to name only a few."
Historians have taken a far more sober approach to Cohen's accomplishments and influence. In accounts of the New Deal, Cohen is rarely if ever allowed to assume center stage; standard histories of the period typically do little more than acknowledge his presence in the wings, at best allotting him a supporting role in a minor subplot. Monographs on specific subjects are kinder, and more accurate, but by their nature such accounts emphasize only individual aspects of Cohen's multifaceted life and career.
In part, at least, Cohen's lack of historical standing is his own fault. He kept no diary, saved few letters, and gave interviews with great reluctance-and, even then, he minimized his own contributions. He rarely kept extensive notes of his activities, and was careful to handle sensitive issues in person, rather than in writing, whenever possible. Unlike many of his colleagues and contemporaries, Cohen left no published account of his life and made no effort to ensure that his life's work would be properly recognized or commemorated.
But the lack of recognition accorded to Cohen transcends his personality and style, deriving in large measure from the nature of his activities. For most of his professional life, Cohen was doing other people's work. He wrote speeches for others to deliver or expressed his views in memoranda for others to incorporate into their own proposals and arguments. He rarely worked alone, making it difficult if not impossible for a biographer to sort out his specific contributions to any final product. He was passionately involved in the world of ideas, yet left no systematic account of his political principles or political philosophy.
Accurately and authentically reconstructing Ben Cohen's life, therefore, is no easy task. The record of his accomplishments must be built up from bits and pieces of fragmentary evidence, much of which has survived only by chance, and most of which is deeply encrusted in legend and mythology. His public philosophy must be distilled from a vast array of statutes, memoranda, legal opinions, and letters, and from a handful of formal writings, speeches, and interviews. Ultimately, understanding Ben Cohen requires probing deeply into an intellect and personality that resisted such intrusions even from those who knew him well.
Yet the effort is worthwhile, not only to preserve Cohen's memory but also to extend our understanding of the Roosevelt era and to appreciate its implications for our own time. Cohen was with the Roosevelt administration from the First One Hundred Days until the very end, and stayed on to serve Harry Truman for seven more years. His activities spanned the full range of both domestic and foreign policy, beginning with the financial crisis of 1933 and continuing through the war and the nuclear era. Before and after the New Deal, Cohen was deeply involved in the economic and political development of Palestine and in the creation of the State of Israel. He was a chief architect of the modern regulatory state, a model for future generations of presidential assistants, and a primary exponent of the philosophy of American liberalism.
Above all, Ben Cohen provides an extraordinary window into the intellectual heart of a critical and formative period of modern American history. Ben Cohen's life was the life of a mind, and his story is the story of the creation of modern America.
Excerpted from Benjamin V. Cohen by William Lasser Copyright © 2002 by The Century Foundation. Excerpted by permission.
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