Wednesday, June 11, 2008

Felix Frankfurter and the Revolving Door

Felix Frankfurter became famous as the Harvard law professor who persuaded scores of students to join the New Deal. Less well known is that when he was a recent law alumnus one of his own professors gave him very different advice.

After graduating from the Harvard Law School in 1906, Frankfurter joined Hornblower, Byrne, Miller and Potter, an eminent Wall Street firm. He quickly tired of the tedious work and irksome obligation to cultivate wealthy clients and therefore jumped at the chance to join the legal staff of Henry L. Stimson. Stimson, a patrician Republican, had himself put aside a corporate practice to become U.S. Attorney for the Southern District of New York at the urging of President Theodore Roosevelt. When TR’s successor, William Howard Taft, appointed Stimson Secretary of War in 1911, Frankfurter went along as law officer in the Bureau of Insular Affairs, even though the received wisdom at the time was that “an able man was as likely to enter a monastery as the ranks of government workers.”

While trying to puzzle out some difficulty involving the Panama Canal, Frankfurter wrote to Eugene Wambaugh for readings that might illuminate the problem. Wambaugh had joined the Harvard law faculty in 1892, after having demonstrated his devotion to the case method with missionary service on the law faculty of the University of Iowa. His penchant for the “shrewd and even mordant phrase,” the “quizzical paradox,” and the “extravagant understatement” had appealed to the brilliant young law student from City College. The two commenced a “bantering companionship,” in which, Frankfurter recalled, “praise from him took the form not of approval but of spur.”

Wambaugh sent Frankfurter the requested references, but he had an additional piece of advice for his former student in Washington. “Let me not fail to warn you against staying there too long,” he wrote. “To serve the Government is a privilege and a duty, if you can afford it; but most young men have a right to have in mind the pecuniary needs of later life, and I regret to say that for men of high ability the Government does not offer a career which in the pecuniary sense is desirable.” He closed, “You see it is a professor’s duty to take care of his former pupils as well as to think of the public interest.”

Frankfurter did not welcome the advice. Yes, the quality of government lawyering was often poor, he replied, but “do you not think there is a decided tendency for betterment of things, and increasing hope for self-respecting permanency” in government service? “In all events,” he assured Wambaugh, “I do not think I am yet within the danger of inert fixity.”

Frankfurter showed the exchange to his friend Winfred Denison, who had toiled beside him as an assistant U.S. attorney and now worked for another Wall Streeter, Attorney General George Wickersham. “I have been getting quite an accumulation of that line of talk recently,” Frankfurter complained. “On the whole, I think it has a very wholesome effect in stiffening the viewpoint sought to be corrected.”

But Denison was a step beyond Wambaugh--and even further from Frankfurter’s ideal of the government lawyer as British civil servant. “One thing Professor Wambaugh does not consider is the monetary value of a reputation gained in the Government service and the greater opportunity to make a broad reputation there,” Denison observed. “I do not believe you, for instance, suffered more than a temporary inconvenience (now not even that), and your possibilities for a large income when you want it are much greater, I should think, than if you had not gone into public service.” He dryly concluded: “I am sorry to eliminate the generosity of the service, by this process.”

Denison’s reaction called to mind such negative examples as James Montgomery Beck (pictured at right), who bolted the Department of Justice for Shearman & Sterling in the middle of a great antitrust case, but Frankfurter chose to find it amusing. “This haven of hope is delicious!” he wrote in the margin of Denison’s letter. Frankfurter would be less amused during the waning years of the New Deal, when the “haven” of private practice proved all too real a temptation for the proteges he had hoped would form the nucleus of a permanent and prestigious federal legal service.