Obiter Dicta

FELIX FRANKFURTER REMINISCES (310 pp.)--Recorded in folks with Dr. Harlan B. Phillips--key no I ($5).

It is hard to be indifferent to the information that Justice Felix Frankfurter, 77, expects to die without having been to the top of the Washington Monument, that he was in his B.V.D.s when President Roosevelt phoned the news of his impending appointment to the Supreme Court and that, when he came to the U.S. from Vienna as a boy of eleven, his English was so poor that he once told his parents, "This man Laundry must be a very rich man because he has so many stores."

Such personal asides stand out from the bulk of more serious reflections in these reminiscences, originally recorded on tape as part of Columbia University's massive oral history project, which has laboriously recorded for posterity the recollections of 600 prominent Americans. "Whether through weakness or good nature," Justice Frankfurter consented to publication of the interviews while he was still living. Talking for more than 50 hours at various times between 1953 and 1957, in response to brief questions from Columbia Historian Harlan Phillips, Frankfurter rambled on about life, politics, God, Harvard Law School, philosophy, ethics and the quirks of mankind. Edited down to book size, his conversation makes a lively, teasing, opinionated, often stimulating volume, and a rich source of Americana.

Frustrated Journalist. Frankfurter, the immigrant boy, became in turn an attorney, a federal bureaucrat, professor of the Harvard Law School, supplier of legal brains (Frankfurter's "happy hot dogs") to the New Deal and a guest professor at Oxford before his 1939 appointment to the Supreme Court. Along with an impressive intellect. Frankfurter has a sparrow's cockiness and a high-pitched, pedantic voice that often drives opponents to distraction. During the 19305 he was disliked and feared by conservatives as the legal strategist of F.D.R.'s onslaught on "economic royalists." As a member of the Supreme Court, on the contrary, he has been disliked and feared by liberals because of his conservative doctrine of judicial self-restraint--the belief that the Supreme Court should only interpret and apply laws, while leaving the creation of new law to legislatures and enforcement to executive officers. Frankfurter insists he has been thoroughly consistent in his approach throughout his long life; it is the conservatives and liberals who have been repeatedly out of step.

Joseph Alsop once described him as a frustrated journalist, and while Frankfurter consistently denounced the press as "the chief miseducators of the people," he has a good journalist's keen and sometimes merciless way of sizing up people. Secretary of the Treasury Henry Morgenthau "hadn't a brain in his head." F.D.R.'s aide, Harry Hopkins, "had a feeling of a mistress toward President Roosevelt." Pundit Walter Lippmann's "job in life is to sit in a noise-proof room and draft things on paper" without ever going through the "heartbreaks of getting agreement out of people."

Notion of Heaven. Frankfurter also has trenchant opinions about Presidents of his era:

P: Theodore Roosevelt was, of them all, the man supremely gifted for public life. When out of office, he seemed to Frankfurter the "most tragic case of unemployment" he had ever seen.

P: William Howard Taft "loathed being President," and only accepted the office on his wife's insistence. He was nevertheless a great Chief Justice of the United States because the Supreme Court "was his notion of what heaven must be like."

T.R. once complained: "Oh, if only Taft knew the joys of leadership!" Woodrow Wilson was dogmatic, inscrutably secretive and of limited vitality. His mind was second rate and his style of writing "synthetic Burke."P: Calvin Coolidge was "arid," a kind of puritan, the sort of man who would make a speech "about George Washington as a businessman."

Herbert Hoover was aggressively hostile to facts he did not like, and lacking in "sensitiveness toward public affairs." P: Franklin D. Roosevelt, under surface shallowness hid "a deep streak of the Dutch." He followed a principle of polarity, i.e., doing two opposite things at the same time (as Frankfurter explains it: "You build a fireproof house and nevertheless take out fire insurance").

Critique of Reason. Frankfurter has a deserved reputation as a wicked verbal antagonist. Asked his opinion of a grandson of Ralph Waldo Emerson who was serving as Governor General of the Philippines, Frankfurter snapped: "I think Emerson passed through him without stop ping." In crossing blades with Alice Longworth, the daughter of Theodore Roosevelt, Frankfurter said she had all her father's biases. "Why shouldn't I?" Alice Longworth replied. "Your father's a great man and entitled to biases," said Frankfurter, "but you're not."

For a jurist, Frankfurter offers a refreshing critique of pure reason: "You damned sociologists, you historians who want to get it all nice and fine on paper, you haven't learned how much in this world is determined by non-syllogistic reasoning." On the subject of religion, he is gently detached. He recalls how as a young man, in the midst of a Yom Kippur service, he looked around as pious Jews were "beating their breasts with intensity of feeling and anguishing sincerity," and he decided that his presence among them was "a kind of desecration" since their creed no longer had any meaning for him. Years later he listened to a sermon by Reinhold Niebuhr and said to him after ward: "Reinie, may a believing unbeliever thank you for your sermon?" Replied Niebuhr: "May an unbelieving believer thank you for appreciating it?"

There are occasional flat passages in the book, and some embarrassing ones, as when Frankfurter recalls being introduced to Prince Feisal of Iraq ("Here was little me meeting this Arab prince!"). But it is suffused with his love for the law, that towering edifice which is "all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling." Frankfurter lays down the axiom that "the worst public servants are narrow-minded lawyers, and the best are broad-minded lawyers." He neglects to say who should make the determination. But readers may feel that at least one man would be cheerfully willing to try: Felix Frankfurter.

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