A Question of Propriety

WHEN PRESIDENT Lyndon B. Johnson nominated Abe Fortas in mid-1968 to succeed Earl Warren as Chief Justice of the United States, he had no idea of the controversy he would stir up. But at Fortas confirmation hearings, senators charged that Fortas--a presidential adviser who LBJ had appointed an Associate Justice in 1965--had continued to council Johnson on political matters while sitting on the Court. With his nomination hopelessly stalled in the Senate Fortas withdrew his name from consideration in early October. Within a year, he had resigned from the Court entirely, pressured out by those who accused him of violating the nation's cherished separation-of-powers principle.

America has never responded well to justices who appear to have overstepped the bounds of judicial propriety. The nation has developed an elaborate network of standards to limit judges off-the-courts behavior. Those who publicly transgress those unwritten bounds at the very least lose their legitimacy: the less fortunate, like Fortas, lose their jobs. Those monastic codes have led some justices to renounce even activities with the most tenuous ties to politics, like voting. Recent attacks on Chief Justice Warier E. Burger for advocating specific criminal code reforms, are only the most recent expressions of America's historic aversion to judicial interventionism.

Bruce Allen Murphy is acutely aware of those strains of American political culture The Brandeis Frankfurter Connection, his meticulously researched account of the secret political activities of two Supreme Court justices, derives its appeal from our appreciation of the standards governing the behavior of the men in robes. His revelations about the extent of the extrajudicial activities of Justices Louis D Brandeis (1856-1941) and Felt Frankfurther (1882-1965) are fascinating not because those activities are inherently unethical, but because Americans have been weaned on the belief that they are.

Murphy, however, argues something further. He suggests that accounts of behind-the-scenes politicking like that of his two subjects should show America last what standard's it should impose on its judges His introduction and conclusion both stress the importance of divining consistent ethical standards to govern judicial behavior.

Yet in the end, he stops short of doing a contending that "it is not for [the historian] to suggest just which set of standards governing extrajudicial position behavior by sitting judges would best serve the national interest. "That ultimate reluctance to grapple with the issue the explicitly raises is the principle problem with The Brandeis Frankfurter Connection a book otherwise marked by a gripping and yet dispassionately told tale of how two men paid lip service to judicial propriety while flouting it egregiously behind closed doors.

BOTH JUSTICES emerge as men whose extensive pre-Court political activity so accustomed them to practical politics that they could not resist the temptation to intervene in executive of legislative affairs Brandeis, a Woodrow Wilson appointee who served on the Court between 1916 and 1939, had previously been a Populistic "People's Attorney," a Zionist and opponent of trusts on whom Wilson relied for regular advice.

Tempted by Wilson's continuing thirst for his sage counsel the President one night surreptitiously sneaked over to the Justice's Washington apartment for advice on a political appointment--Brandeis, as a Justice proffered his advice quietly but persistently, using Wilson lieutenants as intermediaries. The depth of his feeling on several prominent issues of the day the need for a Zionist homeland and the cause of Progressivism also made behind-the-scenes lobbying for specific policies a temptation Brandeis could not resist.

Frankfurter's practical education in the extrajudicial clout a Supreme Court Justice can wield came not from the tactful and cautious experimentation that gradually showed Brandeis he could lobby effectively at little personal cost Rather. Frankfurter's teaching came from Brandeis himself, and that revelation is what marks The Brandeis Frankfurter Connection as an excellent piece of historical research.

Using 300 never-before-unearthed letters from Brandeis to Frankfurter. Murphy painstakingly traces the political relationship between the two men, who shared a common concern for Zionism, the Democratic Party, and social reform. His most revealing finding is the one most newspapers have already trumpeted: that for 22 years Frankfurter operated as Brandies's paid political lieutenant. The justice's regular payments to Frankfurter did not amount to graft in the commonly used sense of the term. Instead, they constituted a "joint endeavours account"--a fund Brandeis provided for Frankfurter to use to lobby legislators and bureaucrats to further their common political agenda.

The fund had its origins in Brandeis's fruitless efforts, through Frankfurter, to stop the 1927 execution of Sacco and Vanzetti: in total, more than $50,000 passed from Brandeis to Frankfurter, before the latter joined the bench in 1939, an appointee of President Franklin D. Roosevelt '04, for whom he--like Brandeis for Wilson--had become an inner-circle adviser.

As a justice, however, Frankfurter had no such political lieutenant to lobby for him: that fact, for Murphy, exemplifies the fundamentally different styles of extrajudicial behavior that characterized the two men. Where Justice Brandeis almost never initiated direct conversations with President Wilson. Justice Frankfurter conferred with FDR several times a week to lobby an advise Where Brandeis used his influence subtly to help the U.S. war effort in World War I. Frankfurter boldly prodded legislators and diplomats directly in his effort to organize the U.S. European campaign in World War II.

Brandeis style was to draft long memorandums, and feed them indirectly to government bureaucrats: he often forwarded such written position papers to Frankfurter, then (in the 1920s) a Harvard Law Professors who could and often did insert Brandeis arguments under his and other names in the Harvard Law Review. It was Brandeis who urged Frankfurter to write John Maynard Keynes asking him to address Roosevelt publicly helping further the massive public works projects Brandeis favored so strongly Frankfurter's style was to schedule meetings with prominent leaders--using a Supreme Court office that many of his aides never knew about and to unabashedly try to persuade them. He, for instance, consulted with physicist Niels Bohr on the controversial Manhattan Project, and sought to persuade Roosevelt and Secretary of War Henry I. Stimson to disclose America's plans for the atom bomb to the Soviet Union. Only his overriding concern with maintaining the judicial propriety and his skill at perpetuating the "myth of judicial seclusion" kept Frankfurter's lobbying publicly unknown for so long. That--and his tacit ability to harm the careers of those who threatened to buck his will by revealing his extraordinary lobbying efforts through his backdoor to Congress and his ties with Roosevelt administrators.

FOR ALL HIS graphic descriptions of the extracurricular activity of the two men. Murphy does treat them fairly. He notes, for instance, that only rarely did either actively lobby on issues on which Supreme Court decisions were pending. And he notes that each was zealous in trying to safeguard the Court's legitimacy, a respect which hinged on its perceived uninvolvement in political issues of the day.

Only rarely does he touch on the jurisprudential philosophies of the justices. He stops only to observe that the earlier justice's famous "Brandeis briefs"--filled with sociological statistics and often devoid of constitutional argument helped further his populist ends, and that Frankfurter's deferential judicial attitude toward most legislative judgements helped establish the constitutionality of many New Deal programs he favored and often had quietly helped to draft.

Murphy never tells us where he stands on the two men's surreptitious political machinations. All the suggests as he does repeatedly is that neither man's endeavors and especially Frankfurter's more bold faced lobbying efforts so would have washed with national standards of judicial propriety in their era or ours. On a relative scale, though he makes it clear he sides more with the politically visionary Brandeis than with the more Machiavellian Frankfurter, whose political end was often the growth of his own influence, not the realization of a program like has mentor's populism and opposition to Big Government and Big Business.

All of which leaves open the question of whether judges should ever seek to wield influence behind the-scenes. Murphy implicitly suggests the conventional answer; they should not for publicity of judicial meddling could undermine the prestige of the Court and the rule of law. But never does he effectively counter the opposite argument: that judges many of whom rose from the political ranks themselves, often possess more political acumen and vision than election-hungry politicians.

That in a way, is the irony of The Brandeis Frankfurter Connection. For all their machinations, both men emerge as wise and present leaders--men whose visions helped bring America Keynesian economics and compassionate social welfare policies, and helped give the world a Zionist homeland (thanks to their vigorous advocacy at home and abroad). Though Murphy refuses to entertain the possibility seriously, there is a place for informal judicial involvement in America's policy-making apparatus so long as judges steer clear of entanglement that could prejudice their decisions. For as the lives of Brandeis and Frankfurter show, judges often do wrong what is best for the nation--and their wisdom should not go untapped because of absolutist notions of the need for judicial seclusion