Matters of State: A Political Excursion

Matters of State: A Political Excursion

by Philip Hamburger


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Philip Hamburger, president-watcher and Reporter at Large for The New Yorker, at last collects his pieces on a beat he's made his own-Washington inaugurations, from FDR to Clinton.

This collection of essays, chosen by the author from his sixty years of writing for The New Yorker, chronicles not only the people of our nation's political life (Judge Learned Hand, Fiorello La Guardia, Dean Acheson, FDR, Eisenhower, Reagan, Clinton) but also the places and events, with special emphasis on presidential inaugurations (he has attended, he thinks, fourteen). Here is one man's view, both funny and serious, of the glorious diversity of American politics-and of the better angels of our nature.

Product Details

ISBN-13: 9781582432465
Publisher: Counterpoint Press
Publication date: 05/06/2003
Pages: 192
Product dimensions: 6.10(w) x 9.10(h) x 0.50(d)

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Chapter One


The bedrock of our liberties lies, I feel, in the independence of the Federal judiciary. Absent that, all is lost. And a bedrock was Learned Hand, the legendary judge who presided over the United States Court of Appeals, Second Circuit. I knew of his monumental defense of freedom of speech and the First Amendment, but little more, until Sunday afternoon, May 21, 1944. I was at home listening to a radio broadcast from Central Park. One hundred and fifty thousand new citizens were to be sworn in by Judge Hand, before a million and a half people—the largest crowed ever gathered in the park. We were in the midst of a shattering war, but the tide had turned and D day was just a few weeks ahead. Shortly after 4 P.M. he began to speak on "The Spirit of Liberty." I was transfixed. The words had such clarity, beauty and meaning that I had the curious sensation that I was at Gettysburg, listening to Lincoln. And, like Lincoln, he spoke briefly, barely more than five hundred words. The next morning not a newspaper in town printed a word of the speech. I called the judge in his chambers and said I would like a copy. He seemed pleased. "You heard it?" he said. "Come on down." Down I went. We had a long talk and I wrote a piece for Talk of the Town, quoting from the speech. An avalanche of attention followed, and the speech has gone into the canon of great American utterances. The judge and I became friendly. I went to dinner at his home, he came to mine. The moments with him are among the most important of my life. This piece was written for Life a few years after our firstmeeting.

    JURISTS BY NATURE ARGUMENTATIVE, and nothing delights them more than to consider the qualities that constitute lasting greatness on the bench. Is the important factor the literary style and grandeur of a judge's opinions? Zeal for uniting the law with the economic realities of life? Sturdy defense of the status quo?

    Debates of this nature frequently end in an atmosphere of mellow agreement at the mention of Learned Hand, senior judge of the United States Circuit Court of Appeals for the Second Circuit (New York, Connecticut, and Vermont), a robust, stocky man with thick eyebrows and a voice like the crackle of lightning. An impressive number of judges and lawyers consider him the outstanding member of the federal judiciary, the spiritual heir of such judicial giants as Marshall, Holmes, Brandeis, and Cardozo.

    Judge Hand was seventy-five in January 1947, and many of his colleagues and friends, more than anxious to pay him tribute, planned testimonial dinners and the presentation of a bust. Typically the Judge tried to keep one step ahead of them in an attempt to scotch their plans. It is his modest and reasoned decision that public tributes have small place in the life of a judge. Nonetheless he could not stop thousands of lawyers and judges the world over from turning their thoughts in his direction, re-examining his opinions and papers and evaluating his lifework. "Learned Hand is the most distinguished living English-speaking jurist," a Supreme Court justice has remarked with deep feeling. Those who insist that a judge must write with the pen of a master will accept no substitute for his prose. "There is a lovely tune in his head," said one of his colleagues on the bench, "and somehow he translates it into words."

    To Judge Hand each individual is sacred and entitled to his day in court. His roots are embedded in the deepest and healthiest soil of American democracy. To discover the essence of that soil he has devoted a lifetime of inquiry, both on and off the bench. "The only America you can love," he once wrote, "is one whose citizens have learned the self-discipline of compliance in the face of truth; the only country which any man has a right to love is one where there is a balanced judgment, justice founded on wisdom, a free spirit and a temperate mind." He conceives of the law as a living organism and of interpretation as an imaginative exercise. Statutes are the result of legislative compromise, he holds, and judges must therefore discover what the authors had in mind while framing them.

    Broad generalizations leave him in a cold intellectual fury. Lawyers who attempt to impress him by reminding the court of "those eternal principles of justice ringing down the ages" do so only once. His broad jaw drops in anguish. His bushy gray eyebrows rise in horror. His face, a moment ago as serene and inquiring as Cardozo's, becomes as fierce as Daniel Webster's at the height of a peroration. The courtroom echoes with a sharp crack as he slaps a hand to his brow and leans far back in a tall leather armchair. "Rubbish!" he shouts, almost disappearing from view behind the bench.

    The casual observer, watching Judge Hand charge up the front steps of the federal courthouse in New York or preside on the bench with majestic authority, would conclude that he was a tower of self-assurance. Actually he is torn by doubts and constantly re-examines his first principles. "What are the values? Do you know? Believe me, I do not," he will suddenly say to his law clerk during the discussion of a case. Although convinced that permanent solutions to the problems of life do not exist, he belies the thought by a ceaseless pursuit of solutions. "Shakespeare had Learned in mind when he wrote Hamlet," a distinguished corporation lawyer said recently. "Twenty-four hours a day he is a thinking being."

    His moods are unpredictable. Some months ago he stepped into an elevator at the courthouse deep in thought and with a dejected expression. "Pardon me, Judge Hand," said a stranger, as the elevator started up, "but I thought your opinion yesterday was wonderful." Judge Hand beamed. "Thank you, sir, thank you very much indeed," he said, stepping off at the twenty-fourth floor. Humming, he walked briskly through his suite of offices. He waved to his bailiff and Mrs. Berna Lohrman, his secretary. He stopped by the desk of his law clerk to repeat what the man in the elevator had said. "Splendid morning, splendid!" he said, entering his chambers. For the next ten minutes those outside heard him gaily whistling a tune from The Pirates of Penzance. Suddenly all sounds ceased, followed by an insistent buzz for the law clerk, who entered and found the Judge looking as though he had passed through the valley of the shadow of death. "I cannot fathom," said Judge Hand, "why I allowed myself to care what that fellow thought of my opinion!"

No other federal judge has been on the bench as long as Judge Hand. President Coolidge appointed him to the Circuit Court in 1924, directly from the District Court for the Southern District of New York, where he had sat for fifteen years. Since 1939 he has held the title of senior judge, a matter of seniority. In the hierarchy of the federal judiciary, the ten Circuit Courts of Appeals and the Court of Appeals for the District of Columbia lie just below the Supreme Court, which rarely reviews a circuit-court decision unless it involves a constitutional problem or conflicts with decisions in another circuit. Circuit-court judges are appointed for life by the President with the consent of the Senate. Their salary is $17,500 a year.

    Each morning Judge Hand walks four miles to work, leaving his home, a three-story brownstone on Manhattan's Upper East Side, precisely one hour before he is due at the courthouse. This daily walk has become a ritual, to which he attributes his general robustness. "I shall continue the practice," he has told a friend, "until that final morning when, fittingly, I shall fall backward head over heels down the courthouse steps." His cousin, Judge Augustus Noble Hand, two and a half years his senior, considers the walks a species of self-torture and is given to saying, "Learned wonders why his back sometimes hurts. Why shouldn't it, walking all that distance at his age?" Several of the other judges of the Circuit Court occasionally go along on the walks, but few men can survive the sheer speed of the journey. The other judges have been known to drop out of line, one by one, and jump into cabs, while Judge Hand ploughs ahead without so much as a glance behind.

    In the courtroom Judge Hand's appearance is formidable even when he is totally relaxed. Those who appear before him testify that it is a broadening intellectual experience, often with shattering overtones. Only the most hardy retain their composure, and once, during a Yale Law School moot court at which he presided, a prize student rose to address him, took one look and promptly keeled over in a dead faint. Lawyers have a habit of insisting that the case at bar either presents special aspects of the law hitherto inapplicable or is open-and-shut on the basis of established doctrine. Judge Hand resists both tendencies with the air of a tolerant schoolmaster. As long as the argument remains germane, he listens attentively, putting on and removing heavy tortoise-shell glasses and leaning across the bench. But let the argument wander or become diffused in mists of rhetoric and he begins to wriggle and twist. Experienced attorneys, recognizing the storm warnings, hurry back to the point. To an attorney who persists in rambling he will say, "May I inquire, sir, what are you trying to tell us?" Spirited cross-questioning follows, during which the Judge attempts to reach the bedrock of the argument. Few things infuriate him more than what he calls the "meadows of easy assumptions," interruptions, or attempts to flatter the bench. "I need not remind the distinguished judges of the Second Circuit of the law in this case," an attorney once began, with a broad smile. Judge Hand shot forward in his chair, cutting him short. "You impute a knowledge of the law to this bench," he said, "which it does not possess." Suffering from an attorney in love with the sound of his own voice, the Judge will occasionally scribble a note of protest and slip it to a colleague on the bench. "John Marshall once said," read one of them, "that among the qualities of a great judge was the ability to look a lawyer straight in the eye and not hear one word he was saying."

    Before writing a first draft of an opinion, Judge Hand calls in his law clerk and, thinking aloud, outlines the general pattern of his decision. To clerk for Learned Hand is considered a signal honor among lawyers. All but a few of his law clerks have been former editors of the Harvard Law Review; each spring the dean of the Law School recommends several applicants from whom the Judge selects one, who comes to him the fall after graduation. Judge Hand and his clerk plunge into a case together, the clerk looking up references and suggesting possible lines of reasoning. The relationship is highly informal. The Judge has no objection to his clerk's bringing a sandwich, say, into his chambers, but he does balk at the chewing of gum. The clerk has a private office but no phone, a contemptuous gesture on the Judge's part not toward the clerk but toward the telephone, which he considers a distracting factor in modern life. He feels that mobility tends to stimulate thought, and while discussing a case both he and the clerk pace rapidly back and forth across the room, in opposite directions, brushing past each other approximately every thirty seconds. "My feeling," the Judge will say, "is that plaintiff has suffered a grievance for which there should be a remedy, but a man's property is limited to the chattels which embody his invention." Then, as he whizzes by the clerk: "Sonny! We have come to a parting of the ways. I smell Spearmint again. Throw out that gum! ... But amendment of the copyright law is not urged here. Come now, what do you think?" At the conclusion of the discussion the clerk, winded, retires to his office and orders are issued not to disturb the Judge.

    Judge Hand writes three to four drafts of every decision, either hunched over his desk composing on long sheets of yellow foolscap or leaning back in his chair with a wooden writing board across his legs. "I write opinions with my life's blood," he often says. "I suffer, believe me, I suffer." He will write and rewrite steadily for hours, occasionally diverting his mind by walking to a wooden lectern in a far corner of the room and reading several pages of some nonlegal book which lies open there. For several weeks one summer he made his way, at odd intervals, through a life of Cromwell. While concentrating on a point of law, he appears to be affected by extrasensory perceptions, enabling him to be jarred by noises inaudible to the normal ear. "There's a dog barking its head off down on the street," he told his secretary one afternoon. The secretary had inner doubts that anyone could hear barking twenty-four floors above the street, but she nonetheless told Sherman, his bailiff, who went downstairs and could neither see nor hear a dog. The results of his inquiry were transmitted to the Judge, who looked pained. Fifteen minutes later he buzzed for Sherman. "I tell you I can't work with that dog barking," he said. "Here's ten dollars. Find the dog and buy him." Sherman again went downstairs and walked several times around the courthouse, cocking an ear. Faintly, in the distance, he heard a dog barking. Following the sound, he trapped his quarry, howling like mad in the rear of a bar and grill on the edge of Chinatown, three blocks away. "Judge Hand can't work," said Sherman, pointing to a tiny window near the top of the courthouse. Somewhat stunned, the proprietor muzzled the dog.

    When reviewing an admiralty case the Judge is not satisfied merely to study the briefs and oral arguments. He keeps a compass and magnifying glass in his top desk drawer and his closet contains a complete set of maps of the waters adjacent to New York City. Whipping out the compass and spreading a map across his desk, he will squint for hours through his magnifying glass, checking with the compass the location of every spot mentioned. In deciding Dauntless Towing Line v. Canal Lakes Towing Co., 140 Fed. 2nd 215, a matter of a collision between two barges, he wrote, "As usual the testimony as to the whistles is contradictory.... Perhaps the most reasonable estimate is that she first blew when somewhat east of buoy 3A, about 1,200 feet from the place of collision. The only testimony is that the mutual approach of the vessels was nine miles an hour; and if so, the signal must have been given nearly three minutes before collision (even if we disregard the slow bell of the Calatco). That was ample time for the Dauntless to go to starboard."

    Each case presents to Judge Hand a new intellectual pursuit of freedom, admittedly an awesome task considering that liberty, as he has said, "is an essence so volatile that it will escape any vial, however corked." A lawyer once said of the Judge, "First he articulates his prejudices and then cancels them out. If he happens to reflect liberal sentiment—and he appears to a good deal of the time—it is only because he feels it to be the correct interpretation, not the popular one." These days a considerable number of the Judge's opinions deal with labor disputes. Inevitably he has been accused of being both pro- and anti-labor. He would appear to be neither. "Justice, I think, is the tolerable accommodation of the conflicting interests of society," he has said, "and I don't believe there is any royal road to attain such accommodations concretely."

The first of the Hands in America, John, left Kent, England in 1644 and landed at Southampton, Long Island. Shortly thereafter he became one of the nine original settlers of Easthampton, a windswept waste of moors and dunes. His estate consisted solely of a Bible, psalm book, pistol, and sword. In 1792 the Hands trekked to Shoreham, Vt., on the shores of Lake Champlain. Judge Hand's grandfather Augustus attended the first law school in this country, Judge Gould's, at Litchfield, Conn. He subsequently served in Congress, the New York State Senate and on the State Supreme Court. Learned Hand was born in Albany in 1872. He was christened Billings Learned Hand but before he was thirty had dropped the name Billings in favor of Learned, which is his mother's maiden name. "Nobody could possibly think of a nickname for Learned," he said at the time. His father, Samuel, was a prominent attorney and sat for a time on the Court of Appeals, the highest court in the state. Learned's closest childhood companion was his cousin Augustus, who lived in Elizabethtown, north of Albany in the Adirondacks. Learned spent his summers there, mostly swimming and climbing mountains. Occasionally at night the boys would sit behind the house in the light of a lantern, discussing free will and predestination. "We early decided," Augustus Noble Hand recalls, "that the problem was insoluble." During the winters Learned corresponded regularly with his cousin. "For Christmas, I got from Papa a set of books by Dumas," he wrote when he was twelve, "and I have nearly finished The Count of Monte Christo, which is bully, but mamma wont let me read it on Sunday which is a great privation.... I stood 2 in my class in the semi-annual work. The boy who stood head being 97 240/480. and I stood 97 227/480 he being 13/480 ahead of me."

    Learned followed Augustus to Harvard by two years, parted his hair in the middle, sported a drooping mustache and a pointed black beard and was known, from his appearance, as the "ancient Mongolian." He bustled through college summa cum laude, majoring in philosophy under Santayana, Royce and William James, becoming an editor of the Advocate, a member of Phi Beta Kappa and Class Day orator of the class of 1893. "We have come at last to the time when we must put away childish things and think as men," he declaimed in his oration, but he was uncertain of his next move. "I was perfectly indeterminate," he says today. "I thought of sticking to philosophy, but my cousin had moved along to the law school, and there were so many lawyers in the family—so I went, too." Although he became an editor of the Harvard Law Review and graduated with honors, the law and Learned were not perfectly mated. "He had a speculative train of thought," his cousin recalls, "and thinking based to a considerable extent on precedent did not particularly interest him." Within two years after graduation from law school he had become a partner in an Albany law firm, but he was not at peace with himself. "Many times I felt like putting a gun to my head," he has said. "Nothing but foreclosures, mortgages, settlement of estates. Everything was petty and formal. Nobody wanted to get behind a problem."

    In 1902 he took two decisive steps: he married and moved to New York. His bride was the former Frances Fincke of Utica, a graduate of Bryn Mawr. Hand joined a Wall Street firm and bought the brownstone house where he lives today. Three daughters were born to the Hands. Essentially discontented with the practice of law, Hand nonetheless prospered. Older attorneys such as C. C. Burlingham and George Wickersham, President Taft's attorney general, recognized that his talents were primarily judicial. In 1909, at their instigation, Taft appointed Hand a federal district judge for the Southern District of New York. The new judge was thirty-seven. Within three years he had become an active Bull Mooser. "I knew this: we had to break away from the Hanna thing—the control of the nation by big business," he says now. He ran for chief justice of the New York Court of Appeals on the Progressive ticket in 1913 and was defeated. "He just stood up," his cousin recalls, "and was knocked down." He never again went into politics.

By and large, judges lead unspectacular lives. Their careers, like broad plateaus, are unmarked by gullies and hills. Day after day across the years the struggles and triumphs of Judge Hand—his growth and influence—have been matters of the mind and spirit and therefore immeasurable. You cannot point to a judge as you would to a general and say, "He won that battle." Yet, as Hand once said of Cardozo, judges possess "a power greater than the power of him who ruleth a city." Many students of Judge Hand's work feel that his public addresses and articles in law journals have been among his greatest contributions. In them he has given expression to some of his deepest feelings on law and life and more particularly to his thoughts on the meaning of freedom. "We were wrong," he told a group of lawyers some years ago, "in supposing that native intelligence or stupidity have much to do with the workings of democracy or the gift of liberty. It is a question of the habit, so hard to acquire, of detachment in forming beliefs, in the end of a character of a people, not of its brains. A group of pretty dull men can manage fairly well, if they be disposed to suspend judgment where they do not know the facts, but nothing—I think you will agree—is more exasperating than a group of clever disputants each concealing behind his front of argument determined and uncompromising convictions which no evidence can touch."

    He reiterated this theme in May 1944, when he led 150,000 newly naturalized citizens in the pledge to the flag at the "I Am An American Day" ceremonies in New York's Central Park. One million four hundred thousand persons attended, including Mrs. Hand, who sat behind the French horn of the Fire Department Band. They heard him formulate what many people still consider one of the finest definitions of liberty uttered by a living American, when he said, in part: "The spirit of liberty is the spirit which is not too sure that it is right. The spirit of liberty is the spirit which seeks to understand the minds of other men and women. The spirit of liberty is the spirit which weighs their interests alongside its own without bias. The spirit of liberty remembers that not even a sparrow fails to earth unheeded. The spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest." Though not a newspaper quoted his remarks, word of the speech rapidly spread. Several months later, as the result of reprints in newspapers and magazines, it had been read by an audience conservatively estimated at twenty-five million.

    In former years when the work of the court was completed, the Judge and his wife often made summer trips to Europe, the Judge racing through chateaux, libraries, and museums at the rate of approximately a dozen a day. Returning to the U.S., he observed customs regulations so scrupulously that he once declared an old pair of shoes on the grounds that they had been resoled and heeled in Europe. Now, at the end of court sessions, the Judge leaves promptly for Cornish, New Hampshire, where he has a summer place called Low Court. He spends his days reading or tramping through the woods. In the evenings he puts on a white apron and helps Mrs. Hand with the dishes.

    His New York home is high-ceilinged and comfortable, dominated on the lower floor by a long, narrow library containing several thousand books, including a large number of highly technical volumes of chemistry, physics, and geography. Judge and Mrs. Hand have four grandsons and three granddaughters. Their youngest daughter, Constance, is married to Newbold Morris, former president of the New York City Council and a member of the City Planning Commission..

    Judge Hand's children have long been astounded at the duality of his nature: self-discipline and dedication to work on one hand, ability to relax thoroughly on the other. When they were young, they waited for him to come home each evening from the courtroom. Crouched on the second-floor landing, they learned to recognize his footsteps as he walked down Sixty-fifth Street and put a heavy bronze key in the front door. "If father entered the hall quietly and came silently up the stairs we knew he had problems and promptly dispersed," one of his daughters recalls. "If he were whistling or singing, we would tumble into his room for a story." The Judge would often reward them with an episode from Br'er Rabbit. "Lippity-lop, lippity-lop," he would say, hopping across the room. Or he might recount a chapter in the history of a blowzy character called Marge, a figment of his imagination. Marge, who has been involved in outrageous encounters with the law for more than thirty years, is well meaning but cannot avoid trouble. These days, she is in constant demand by the Judge's grandchildren, who also like to watch him place a wastebasket over his head and leap around the room like an Indian. "You do not see one Indian," Newbold Morris says, "but a whole tribe." The Judge frequently performs as the Crooked Mouth Family. He lights a candle and, taking the part of each member of the family, from the largest to the smallest Crooked Mouth, tries to blow it out. He puffs and huffs, but the candle burns brightly. Finally he wets a finger and snuffs out the flame.

    Judge Hand's closest friends have profound respect for his humor and for the vocabulary that embellishes it. "When he plays the role of William Jennings Bryan addressing a political meeting in Jersey City, he is simply fantastically good," Felix Frankfurter, an old friend, has said. Oliver Wendell Holmes relished his repertoire. Once, during a visit to Holmes with Frankfurter, Hand was prevailed upon to sing a ribald song of the sea, entitled The Cabin Boy. When they left Holmes, Hand turned to Frankfurter and said, "I fear the old man thinks I am a mere vaudevillian." On the contrary, Holmes in 1923 wrote to his perennial correspondent, Sir Frederick Pollock, that Hand was a man "whom I should like to see on our bench." That Judge Hand is not on the Supreme Court is a matter of keen disappointment to a large section of the American bar.

    If Judge Hand has any feelings on this subject, they lie deeply within him. "If I were to do it over again," he told a friend visiting him in his chambers not long ago, "I think perhaps I would be a physicist—open new vistas, move in step with the world. You know, I used to hope that I might be able to garner a harvest of wisdom. That has turned out to be a mistake, for I cannot see much further into the tangle of life than I could fifty years ago. I'm less disappointed than I should have thought. Indeed, there is solace in a companionship where all are groping their way equally in the same fog."

November 1946

Table of Contents

Prologue: Random Notes on Washington, D.C.xvii
Chapter 1The Great Judge [Learned Hand] 19461
Chapter 2Patience and Fortitude [Fiorello LaGuardia] 194313
Chapter 3Friends Talking in the Night [William O'Dwyer] 194616
Chapter 4The Idea is Everything [Trygve Lie] 194727
Chapter 5Sculling on the Schuylkill [Republican Convention] 194831
Chapter 6HQ. [Thomas Dewey] 194835
Chapter 7Ball [Truman Inauguration] 194939
Chapter 8Mr. Secretary [Dean Acheson] 194942
Chapter 9Please Clear the Aisles [GOP Convention] 195277
Chapter 10Back to Chicago [Democratic Convention] 195281
Chapter 11Long Wait [Dwight Eisenhower] 195385
Chapter 12Man from Wisconsin [Joseph McCarthy] 195489
Chapter 13Brain [Eisenhower election] 195693
Chapter 14The Mayor [Robert Wagner] 195797
Chapter 15Lonely Day [Kennedy election] 1960101
Chapter 16Great Day [Johnson Inauguration] 1965104
Chapter 17First Nixon Inaugural [Richard Nixon] 1969108
Chapter 18Hand on Cardozo [Learned Hand] 1970
Chapter 19Mass in Time of War [Nixon's second Inauguration] 1973
Chapter 20Carter Inauguration [Carter] 1977
Chapter 21First Reagan Inauguration [Reagan] 1981
Chapter 22We Have Nothing to Fear... [FDR retrospective] 1983146
Chapter 23Quadrennial [Bush Inauguration] 1989151
Chapter 24One Man's Vote [Clinton election] 1992155
Chapter 25Clinton Inauguration [Clinton] 1993158
Chapter 26Vermeer Time [Postscript] 1996164

What People are Saying About This

William Shawn

[He] has range enough for two writers, both of them distinguished. He is a humorist with great comic resources and he is a serious journalist with a magnificent feeling for facts. Moreover, by some method known only to himself, he contrives to be both at once....Wherever he goes, he takes the unexpected route but reaches his destination with the truth in hand and colors flying.

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