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Judge Learned Hand: Genius, Path Breaker; Recollections of a Law Clerk

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Judge Learned Hand: Genius, Path Breaker; Recollections of a Law Clerk Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 1989 Judge Learned Hand: Genius, Path Breaker; Recollections of a Law Clerk Thomas Ehrlich Indiana University - Bloomington Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Judges Commons, and the Legal Biography Commons Recommended Citation Ehrlich, Thomas, "Judge Learned Hand: Genius, Path Breaker; Recollections of a Law Clerk" (1989). Articles by Maurer Faculty. 2506. https://www.repository.law.indiana.edu/facpub/2506 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. Judge Learned Hand: genius, path breaker The following is the text of a speech by Thomas Ehrlich, President Recollections of a law clerk of Indiana University, who from 1959-60 was a law clerk to the dis- American jurists of our time and per- remember Judge Hand comparing tinguished federal judge, Learned haps of any time. I say "perhaps" one of them, Joseph Beale, to St. Hand, of the United States Circuit because Learned Hand was skeptical Thomas Aquinas - an exponent of Court, Second Circuit, at New York. of superlatives, let alone hyperbole, the view that the law has a great order Ehrlich addressed the assembly not because of any doubts about his and he, the professor, was the divine luncheon of the Spring Meeting of greatness. No one with whom I have exponent. ever worked so plainly had the mark the Indiana State Bar Association on At least on the Second Circuit, of genius. In substance and in April 14, 1989, at Indianapolis. style, most of the judges 30 years ago asked he continually cut new paths. And By Thomas Ehrlich their law clerks to draft their opin- although I never could follow him, ions. Judge Hand was away part of State Bar President Jeanne Miller what I gained by trying- plodding at the year, and when he was away I my own gait - has been a large part suggested that I might reminisce a bit worked for a number of other judges, about a year I spent three decades of my education. It was a glorious including some of the most ago as law clerk to Judge Learned experience -and has been downhill renowned, drafting initial versions of Hand, who was among the leading ever since. their opinions. Naturally, the judges Learned Hand was 87 when I went revised those drafts, as they did the to work for him in the fall of 1959. He drafts by their other clerks, and made had been a federal judge for 50 years, the opinions their own. But working and was widely recognized as the for Learned Hand was a completely greatest legal mind in our country. I different experience. was struck during my first visit with him how short he was, no more than Within the first week, I was sitting about 5 feet, 7 inches. Somehow, I at a desk literally a few feet from the had assumed he was a giant, in body Judge's, in the magnificent room at as well as mind. His head was large, the Foley Square Courthouse that however, and he had enormous was his chambers. Although I wrote bushy eyebrows reaching out many pages to help in my own analy- beyond a pair of melancholy eyes. ses of issues, I doubt that more than a total of one paragraph of my prose During that initial interview, I found its way into his memoranda to remember being nervous for only fellow judges, let alone into his opin- the first few minutes. Judge Hand ions. asked about my work in college; I must have said several things were Rather, our routine went some- "exciting," for he finally commented thing like this. Afterwe had each read that he didn't like theword "exciting" the briefs concerning a case, he Thomas Ehrlich, President of Indiana Uni- - that my generation thought far too would ask me to argue one side and versity,became a law clerk to Judge Hand at many things were "exciting." he would urge opposing view. Some- 25 years of age after receiving an A.B. times, we would then switch sides. In He told me of his days at Harvard degree magna cum laude from Harvard Col- all events, he would move back and lege in 1956, and an LL.B. degree magna College, then in the golden age of forth making arguments and coun- cum laude from Harvard Law School in philosophy with Professors William tering them. His processes of 1959. His outstanding legal career has James, Josiah Royce, and his particu- thought were inextricably linked to included service as a member of the Ameri- lar favorite, George Santyanna. Judge his writing, for he wrote and rewrote can Bar Association's Kutak Commission, Hand said that he literally sat at the which drafted the Model Rules of Profes- - eight, 10, and sometimes 12 or feet of Santyanna and discussed phi- sional Responsibility,as Dean of Stanford more drafts of an opinion. The first losophy. Apparently Santyanna had University Law School, 1971-75, and as would be in long hand, and often he Provost and Professor of Law at the Univer- an attic room in Cambridge, and a would start all over again with a number of his best students would sity of Pennsylvania, 1982-87. He became yellow pad and pen. No word pro- be invited there. The Judge also told President of I.U. on Aug. 1, 1987, and cessors then. teaches an undergraduate course on ethics me something of his Harvard Law and the professions. School professors. I particularly Judge Hand never let his clerk do june 1989 any writing for him, except to suggest changes in drafts. We discussed our initial views, did research together, then I would have a chance to com- ment on each draft he wrote. He always considered my suggestions carefully, and adopted some, though he often stood fast, on several occa- sions for what seemed to me ambigu- ity. It was only some time later that I recognized the full value of con- scious ambiguity to a judge. Almost at once we began to talk about judicial philosophy. Those who have read Judge Hand's book of lectures, The Bill of Rights, know the basic stand he took. In the strongest possible terms, he thought that judges should restrain themselves from denying the constitutionality of acts of Congress. In the end, he argued, it is the people's elected rep- resentatives who must choose how we are to be governed under the Constitution; to impose judicial con- straints is to promote legislative abdication of responsibility. Judge Hand was especially critical of the then current Supreme Court, partic- ularly Justices Brennan, Black, Doug- las, and Warren. He could not understand why those four had a special mandate to do what he con- sidered legislating in the realm of the Bill of Rights. In the main, he viewed what they did as "reaching for the stars." Judge Hand believed with a pas- One of America's most distinguished States Circuit Court, Second Circuit,at New sion that disinterestedness was the jurists, Learned Hand served a record 52 York. From 1939, he served as Chief Judge. essential quality of a good judge. He years as a federal judge. In 1909 he was Although formally retired in 1951, he con- would - often with enormous effort appointed a judge of the United States Dis- tinued to sit in many cases until his death in - begin at the beginning and, with- trict Court of the Southern District of New 1961. His Harvard LL.B. came in 1896. out anticipating the result, work York. In 1924 he was elevated to the United toward it. He never examined a case without reexamining all of the princi- beseech ye in the bowels of Christ, morning there would be a football ples, no matter how basic, that were think that ye may be wrong." That game, with Hand scoring the winning argued or that might be used in sup- sentence, he said, should be placed touchdown; in the afternoon a polo port of a position. on the portal of every courthouse in game, with Hand scoring thewinning the country. A judge must, he goal; and in the evening a public din- He believed that the ability to with- believed, decide between conflicting ner addressed by Voltaire, where a hold commitment can exist only in values without imposing his own. heckler would shout, "Sit down and the true skeptic, one forwhom doubt shut up, Voltaire - let Hand speak." dispels all absolutes. He was Judge Hand had many great vir- supremely a skeptic, though never a tues, but modesty was not among Learned Hand said that his biggest cynic. The Judge's favorite quotation them. Once at a dinner he was asked was that of Cromwell, stated to his to define heaven. He responded that soldiers on the eve of battle: "I heaven was a place where in the (continued on page 588) res gestae Learned Hand who contracted to buy some red ants his disbelief in absolutes. but the contract was broken continued when soon he felt poke'n He frequently quoted Oliver Wen- the ants in his breached underpants." dell Holmes that, "The highest virtue is to stake all upon a generality that He also loved toys, and once com- disappointment was not being you know may be shown false tomor- mandeered a toy truck that was an appointed to the Supreme Court.
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