Book Reviews

HENRY FRIENDLY: GREATEST of the time—a practice that Friendly retained we will never know how Brandeis or Friendly JUDGE OF HIS ERA as a judge. would have addressed the government’s sur- BY DAVID M. DORSEN In the spring of his senior year, Friendly reptitious collection of megadata. The Belknap Press of Press, Cambridge, told his parents that, after a year in Europe, Brandeis could be a difficult person. Lewis MA, 2012. 498 pages, $35.00. he would return to Harvard to seek a Ph.D. in Paper, a Brandeis biographer, asked Friendly Reviewed by Richard L. Sippel medieval English history with McIlwain. His to characterize Brandeis as either “aloof” or parents had expected him to attend Harvard “warm.” Friendly answered that neither term He tempered academic brilliance with Law School and then pursue a career that applied, as Brandeis “was kindly but always massive common sense. was more prestigious and lucrative than kept the appropriate distance.” Friendly seems —from the forward by Judge Richard A. teaching. A friend of the family introduced to have been similar to Brandeis in this respect, Posner Friendly to professor Felix toward his law clerks and even his children. Frankfurter, who suggested that it wouldn’t During his clerkship, Friendly received , born in 1903, served on hurt for a student of medieval English history an offer from Harvard Law School, which the U.S. Court of Appeals for the Second to know a little law, and that Friendly attend Brandeis urged him to accept. But, Dorsen Circuit from 1959 until his death in 1986. From Harvard Law School for a year. He might like it writes, “[w]hile he had been willing to make 1959 to 1961, his career on the Second Circuit and stick with the law, but it would benefit him financial sacrifices to become a professor of coincided with that of another of the greatest even if he didn’t. history, he was not willing to do the same to court of appeals judges, Learned Hand. Many, Henry entered Harvard Law School in become a professor of law. He liked the law, if not most, judges, lawyers, and law profes- 1925 and stuck with it, becoming president but he loved history.” Friendly seriously con- sors agree that Learned Hand should have of the Harvard Law Review. During his sec- sidered working for the Interstate Commerce been appointed to the Supreme Court. David ond summer at law school, he and classmate Commission, having “met one or two of the Dorsen, the author of this biography, says the Thomas Corcoran (later an advisor to President better examiners [today administrative law same for Henry Friendly, and I agree. Franklin Roosevelt) worked with U.S. Attorney judges], and they seem to be highly competent Genealogies can be interesting, and Dorsen on a fraud prosecution of for- men who have the joy of making important provides one for Friendly, who was of German- mer Attorney General Harry Dougherty. After decisions. Of course, the pay is small. ...” But Jewish heritage. His ancestors were from graduation, upon Frankfurter’s recommenda- Friendly instead took a job with the prestigious the rural town of Wittelshofen, in Bavaria. In tion, Justice hired Friendly of Root, Clark, Buckner, Howland & 1852, to avoid conscription, his grandfather, as a clerk. This was the era when justices Ballantine, which, Dorsen writes, “was one Heinrich Freundlich, joined the great migra- heard arguments in the Capitol’s basement of only two firms with a Jewish tion to America, where he became Henry and worked at home, which, for Brandeis, partner, which was important to Friendly.” Friendly. He settled in upstate New York and was a fourth-floor apartment with two small The other firm with a Jewish partner—three, started a family. His son Myer, who became our rooms serving as offices for him and his clerk. in fact—was Sullivan & Cromwell, and it too Henry’s father, was a successful merchant, able Friendly researched and wrote footnotes while offered Friendly a position, but he felt that to afford his gifted son’s educational needs. Brandeis wrote everything else, in longhand, to “they don’t want me but have to make an offer In 1919, at age 16, Henry was accepted to be sent to the Supreme Court’s printer. Dorsen because I was Editor-in-Chief of the Harvard Harvard College, where he was elected to Phi writes that “Brandeis’s thoroughness and dis- Law Review.” Beta Kappa and graduated summa cum laude. cipline in doing his own work contributed to At Root, Clark, the plan was for Friendly to At Harvard, studying history with Charles Friendly’s education.” Howard McIlwain, Friendly became an impas- Dorsen discusses Brandeis’ dissent in sioned historian, and history remained a life- Olmstead v. United States (1928), in which long avocation. For a course with McIlwain, the Court upheld a warrantless wiretap on the Henry wrote a paper on the church and state ground that it had not entailed an actual physi- in England under William the Conqueror, who cal invasion of the home. “As originally draft- reigned from 1066 until his death in 1087. The ed,” Dorsen writes, “Brandeis’s dissent relied paper, which won a $250 prize, showed William on the ground that wiretapping violated state to be a deft politician who avoided fealty to law,” but Friendly persuaded him to add that the pope and weakened the church by mov- wiretapping was a search and seizure under ing secular cases from the ecclesiastic courts. the Fourth Amendment. This was the dissent McIlwain insisted on the use of primary sourc- in which Brandeis said that the Constitution es, and, because some of those that Friendly “conferred, as against the Government, the needed were in Latin, Friendly learned the right to be let alone—the most comprehensive language. McIlwain also urged his students to of rights, and the right most valued by civilized read the words of original documents in the men.” Brandeis’ dissent became the law in way that they were understood by the people Katz v. United States (1967). Unfortunately,

76 • THE FEDERAL LAWYER • December 2014 work exclusively for , “who had the Friendlys socialized,” Dorsen writes, “it Wittgenstein.’” The person most often noted suffered a nervous breakdown and was con- was with other Jewish couples living on the was Oliver Wendell Holmes Jr., with Learned stitutionally unable to delegate work.” Clark’s Upper East Side.” Friendly served as presi- Hand, , Paul Freund, Samuel partners thought that Friendly would be the dent of the Harmonie Club, “a bastion of the Johnson, Frederic William Maitland, and top-notch assistant whom Clark would trust. German-Jewish elite” on Fifth Avenue. He also Jerome Frank frequently reproduced. Some But, after Friendly spent a few months mostly participated in a Saturday luncheon group with entries were quirky: “If you can think about reading , he was released federal judges Jack Weinstein, Milton Pollack, something which is attached to something else from Clark’s supervision. Yet, Friendly would and Marvin Frankel, among others. He and without thinking about what it is attached to, later work with Clark on cases involving insur- Sophie also were fond of overseas travel, he by then you have what is called a legal mind.” ance companies, savings banks, and bankrupt plane and she by ship. Sophie used to say: “one (Justice Ginsburg used the same quotation railroads. He ranked Clark with Brandeis and if by land, and two if by sea, and if it’s by air, in footnote 2 of her dissent in Fisher v. Frankfurter as the men who most influenced you don’t go with me.” University of Texas at Austin (2013), which him. Friendly became a partner at Root, Clark struck down the university’s use of race as a In 1928, after Friendly stopped working in 1937, and left the firm in 1945 with a group factor in undergraduate admissions.) Some with Grenville Clark, Jr. assigned of mid-level partners to form Cleary, Gottlieb, entries were deflationary: “A metaphysician him to work for a new client: Pan American Friendly & Cox. Along with being a partner, he who had written on the secret of Hegel was Airways, which had been founded only the also became vice president and general coun- congratulated upon his success in keeping year before. Friendly worked on fending off a sel of Pan Am. A major client for the new firm the secret.” His favorite may have been “Many challenge to a mail route that Pan Am had been was the Guggenheim family, with its extensive questions are solved by walking; Beati omnes awarded in Chile. Pan Am’s president Juan mining interests and philanthropic projects. qui ambulant [Blessed are all who walk].” Trippe preferred Friendly’s quick answers to In 1959, President Dwight D. Eisenhower At age 82, a widower with serious health an equivocating Root. “Within a few years,” nominated Friendly to the Second Circuit. problems and deteriorating sight, Friendly Dorsen writes, “Friendly was handling Trippe’s Connecticut senator Thomas Dodd, however, committed suicide with pills. His obituary in important problems largely on his own.” He had to be persuaded to support Friendly. the New York Times quoted Wilfred Feinberg, also represented the New York Telephone Dorsen writes, “Frankfurter told Friendly that the chief judge of the Second Circuit, as saying Company in a case involving a technical ques- only Senate Majority Leader Lyndon Johnson that Friendly was “one of the greatest Federal tion of “original cost” accounting, and he won could handle Senator Dodd,” so Frankfurter judges in the history of the Federal bench,” and a complex case in the First Circuit under the met with Johnson. Frankfurter started to make Judge Richard Posner as calling Friendly “the Public Utility Holding Company Act. There his case for Friendly, when Johnson cut him most distinguished judge in this country during were colorful cases too. For several years he off and said, “Felix, are you telling me that this his years on the bench.” worked on the estate of a wealthy eccentric Jewish boy should be on the Second Circuit? Like Henry Friendly, David Dorsen was an recluse, Ella Virginia von Echtzel Wendel, That’s enough for me.” Johnson called Dodd editor of the Harvard Law Review, and he is whose father had been an associate and in- and “told him in no uncertain terms that he recognized for his legal scholarship and excel- law of John Jacob Astor. And Albert Einstein expected the notice for Friendly’s hearing to lent writing. Although this book review will not retained Friendly on a small personal matter. go out in fifteen minutes.” Friendly was quickly discuss Friendly’s judicial decisions, Henry In 1930, Friendly married Sophie Stern, confirmed. A decade later, Abe Fortas’ resig- Friendly contains instructive discussions of whose mother came from an established and nation from the Supreme Court led Friendly them. An appendix to the book lists Friendly’s wealthy Philadelphia family and whose father to think that he might be tapped. But Nixon 51 law clerks, the year they clerked, and their later became chief justice of the Supreme said that he wanted a Southerner who was a subsequent positions. They included Chief Court of Pennsylvania. Describing Henry and “strict constructionist.” Nixon also said that Justice Roberts, federal court of appeals judges Sophie’s marriage, Dorsen writes, “His inhibi- he did not want anyone to give him “a Jew’s Merrick Garland, Michael Boudin (Friendly’s tions and emotional constraints never impeded name,” adding, “I don’t want a liberal Jew on favorite clerk), Pierre Leval, William Bryson, his wife’s free spirit. Whether or not she rec- the Supreme Court.” and professors David Currie, Bruce Ackerman, ognized that her husband’s emotions were far Dorsen views Judge Friendly as “a con- and Phillip Bobbitt. Friendly’s nonjudicial writ- less developed than his intellect, she embarked servative in the traditional mold, judicially ings were voluminous, and another appendix on the marriage with her typical enthusiasm ... restrained and reserved, but not always agree- lists them. The book’s endnotes are thorough, running the household, arranging their social ing with either the judicial or political right.” He and some are substantive rather than merely life, and, after a few years, raising three chil- once told a that he voted Republican referential. Henry Friendly warrants a place dren.” The children were not Henry’s passion; unless there was a very good reason not to. The on one’s short shelf, next to Gerald Gunther’s he was neither physically nor emotionally close clerk took this to mean that Friendly planned biography of Learned Hand.  to them. The family lived in a luxury apart- to vote for Kennedy over Nixon. Friendly later ment building in Manhattan, on Park Avenue kept a bust of JFK in his chambers. Richard L. Sippel is the chief administrative and 89th Street, in the midst of the Great Friendly kept a commonplace book, or law judge at the Federal Communications Depression. copybook, of entries, mostly handwritten but Commission. For two years in the mid Outspoken at times, Sophie voted for also with photocopies from books and arti- 1970s, he was in the same law firm as socialist Norman Thomas (grandfather of jour- cles. “In it he had assembled hundreds of David M. Dorsen. The views expressed in nalist and author Evan Thomas), and “it both- quotations under subject headings, starting this review are his alone and not the com- ered no one—clearly not her husband.” “When with ‘Arguments’ and ending with ‘[Ludwig] mission’s.

December 2014 • THE FEDERAL LAWYER • 77 THINGS THAT MATTER: THREE in Washington, D.C., and Manhattan are stat- last half century, Jews have shrunk from 3% to DECADES OF PASSIONS, ues of “foreign liberators ... who had nothing 2% of the population.” The cause is low fertil- PASTIMES AND POLITICS to do with us,” including Gandhi, Masaryk, ity, which is a product of Jews’ rising educa- BY Bolivar, Garibaldi, Mazzini, and Kossuth. “They tion and socioeconomic status, and endemic Crown Forum, New York, NY, 2013. 387 pages, $28.00. have but one thing in common: They share intermarriage, with only about one in four chil- Reviewed by John C. Holmes America’s devotion to liberty. Liberty not just dren born from an intermarriage being raised here but everywhere. … Much of the world ... Jewish. Moreover, Jews’ success in assimilat- Pulitzer Prize winner Charles Krauthammer insists ... that America’s costly sacrifices in Iraq ing has diminished their need and desire for writes a column that is syndicated to 400 news- and even Afghanistan are nothing more than Jewish culture and religious practices. The papers, and he is a nightly panelist on Fox classic imperialism in search of dominion, oil, opposite is true in Israel, where the Jewish News’ “Special Report” with Bret Baier, and a pipelines or whatever such commodity deval- culture, history, and religion are the reason for weekly panelist on PBS’ “Inside Washington.” ues America’s exertions. The overwhelming its very existence. Krauthammer argues that, He was educated to become a psychiatrist. majority of Americans refuse to believe that. ... given Israel’s precarious situation, it should not While a medical student he became perma- [These statues] are not for show. It is from the be judged by the standards applied to secure nently paralyzed in a diving accident in a heart, the heart of a people conceived in liberty and peaceful countries. The very existence of swimming pool and studied largely in bed with and still believing in liberty.” Israel is threatened. his books suspended above him. In Things Krauthammer discusses how Hitler’s and Krauthammer also discusses baseball (he is That Matter, Krauthammer barely mentions Stalin’s totalitarianism dominated the 20th a devotee of the Washington Nationals), math- this life-changing event, and he lives a robust century. He takes issue with Time magazine’s ematics, economics, international relations, the life with many passions and interests that he choice of Albert Einstein as “person of the cen- French, and much else. His writing is engaging, writes about in an intelligent and witty manner. tury.” He writes, “If Einstein hadn’t lived, the always insightful, and often humorous. But you Nor does Krauthammer dwell on the seven ideas he produced might have been delayed. needn’t take my word for it; shortly following years he studied to be become a physician But they certainly would have risen without its publication, Things That Matter soared to and a psychiatrist, as he loves his career as a him.” But “only Churchill carries that abso- the top of the hardcover nonfiction bestseller commentator, mostly on political matters. This lutely required criterion: indispensability. ... list, where it has remained.  book is a collection of newspaper columns and Who slew the dragon? Yes, it was the ordinary short magazine pieces, and also includes five man, the taxpayer, the grunt who fought and John C. Holmes was an administrative longer essays. Krauthammer explains: “this won the wars. Yes, it was America and its allies. law judge (ALJ) with the U.S. Department book was originally going to be a collection of Yes, it was the great leaders: FDR, de Gaulle, of Labor for more than 25 years, and he my writings about everything but politics. … Adenauer, Truman, John Paul II, Thatcher, retired as chief ALJ at the Department But in the end I couldn’t. For a simple reason, Reagan. But above all, victory required one of Interior in 2004. He currently works the same reason I left psychiatry for journalism. man without whom the fight would have been part time as an arbitrator and consultant; While science, medicine, art, poetry, architec- lost at the beginning. It required Winston enjoys golf, travel, and bridge; and can be ture, chess, space, sports, number theory and Churchill.” reached at [email protected]. all things hard and beautiful promise purity, Krauthammer is not only unafraid to take elegance and sometimes even transcendence, on sacred cows and perceived wisdom, he rel- HISTORY AND THE HUMAN they are fundamentally subordinate. In the end ishes doing so. In a chapter titled “The Double CONDITION: A HISTORIAN’S they must bow to the sovereignty of politics.” Tragedy of a Stolen Death,” he relates how the PURSUIT OF KNOWLEDGE But “much of the politically oriented writ- former congressman Father Robert Drinan’s BY JOHN LUKACS ings in this volume,” Krauthammer writes, are death was upstaged by the death of the race- Intercollegiate Studies Institute, Wilmington, DE, 2013. weighted “toward those dealing with constitu- horse Barbaro, to which 233 pages, $27.95. tional issues and general principles. ... I’ve tried gave top billing. Mother Theresa unfortunately to give as little space as possible to campaigns died on the eve of the funeral for Princess A SHORT HISTORY OF THE and elections, to personalities and peccadilloes, Diana. Krauthammer comments: “In the popu- TWENTIETH CENTURY to things that come and go.” Yet Things That lar mind, celebrity trumps virtue every time.” BY JOHN LUKACS Matter is divided into four parts—“Personal,” He quotes the comedian Art Buchwald: “Dying The Belknap Press of Harvard University Press, Cambridge, “Political,” “Historical,” and “Global”—and is easy. Parking is hard.” As to Buchwald’s own MA, 2013. 230 pages, $24.95. only 32 of the book’s 88 chapters are in the death, Krauthammer writes: “[D]ying well is Reviewed by Jeffrey Glenn Buchella political part. Other subjects Krauthammer also a matter of luck. By unexpectedly living covers range from Winston Churchill to a almost a full year after refusing dialysis for The 19th-century French philosopher chess championship to the family’s border col- kidney failure, Buchwald won himself time to and historian Alexis-Charles-Henri Clérel de lie to Israel to global warming. The five longer taunt the scythe.” Tocqueville left to future generations a rich essays are on the ethics of embryonic research, Krauthammer devotes several chapters to intellectual inheritance. Americans have had Zionism, and “America and the World.” Israel and to Jews, whom he notes constitute a vital, even singular, relationship with the Krauthammer was born in Canada, his wife one-fifth of one percent of the world’s popula- author of Democracy in America, which first in Australia. His writings demonstrate a pro- tion, but 20 percent of its Nobel Prize winners. appeared in two volumes, in 1835 and 1840, found love for his adopted country, the United He writes that, although, in America, Jews have the product of its author’s journey through the States. But Krauthammer praises the fact that in one sense found the Promised Land, “in the then-fledgling republic. Tocqueville’s two-year

78 • THE FEDERAL LAWYER • December 2014 sojourn had begun in 1831, when he was only articles, reviews, and miscellaneous matters, Lukacs’ journey had at least some similari- 26. Not much more than a generation had which in turn include transcribed interviews, ties to Tocqueville’s. Like Tocqueville, Lukacs passed since the English colonies had united speeches, readings, and even letters to the had traveled from the Old World—the Hungary in a war for independence, yet a schism was editor—all of which offer a rich introduction to of his birth, where an attempt to restore the developing that would lead to civil war. the 90-year-old author’s oeuvre. monarchy had taken place as late as 1944—to Tocqueville served in high-level posts in the postwar United States. He arrived more post-revolutionary France and recorded many Tocqueville Unbound than 100 years after Tocqueville’s travels in the of the major historical events of his lifetime in In History and the Human Condition, United States had concluded. Like Tocqueville, works that have had a lasting authority and Lukacs writes, “More than two hundred years Lukacs balanced an attraction and respect for influence. By force of reputation, he would after Tocqueville’s birth (1805), his interna- both worlds. attract future generations of scholars to both tional reputation is greater than ever,” espe- In Historical Consciousness, completed his personality and his ideas. Posthumous cially in the United States. Improbably, no seri- when he was 44, Lukacs sought (although admirers would use the foundation he estab- ous biography of Tocqueville appeared until this is far from a central preoccupation of the lished to survey their own times, fashion obser- 1984, and, despite the publication of at least book) to throw light on his own ideas in rela- vations about the nature of the American two additional biographies since then, Lukacs tion to Tocqueville’s. He wrote that “it was experiment, and contemplate what the future believes that Tocqueville remains misunder- Tocqueville who reconciled me to democracy. would hold for the heirs of 1776. stood in important ways by the public and ... [H]e moved me toward the ‘Left.’ Many mod- When the historian John Lukacs fled the historians alike. ern scholars have failed to see that Tocqueville Soviet occupation of his native Hungary, arriv- A popular impression in the United States was a demophile as much as he was a demo- ing in the United States in 1946, at Philadelphia’s is that Tocqueville’s Democracy in America phobe. ...” He lacked the ingrained distrust of now defunct Broad Street Station, he was just was principally about America, and an alto- the people expressed by other conservatives 22 years old. Already, during the first decade gether admiring portrait at that. For Lukacs, of his time. after his emigration, he would be engaged in however, Tocqueville’s survey is principally the work that would form the foundation of about democracy, and is an analysis of the the remainder of his career. Little more than newly emerging political phenomenon as it 10 years after he arrived, he published The was expressing itself not just in the United European Revolution & Correspondence States, but elsewhere in the world. This misap- with Gobineau, in which he collected, trans- prehension of Tocqueville’s classic work, as lated, edited, and provided commentary on Lukacs sees it, is related to the fact that most Tocqueville’s correspondence with the French American readers, including many scholars, aristocrat, novelist, and man of letters, Joseph have fixed their attention—and praise—on vol- Arthur Compte de Gobineau. This book pro- ume I, even though volume II is more valuable vided readers with an early awareness of with its many observations of, and warnings Lukacs’ lifelong interest in Tocqueville—one about, what was then a nascent and radical that would provide inspiration for many of the development in the political life of the world. themes that would define his work over the Historical Consciousness: The next 60-plus years. Remembered Past is a wide-ranging 1968 Tocqueville celebrated the unique possi- book—perhaps Lukacs’ most important— bilities of the young “Anglo-American” nation, that explores history itself from many angles. but, importantly, he did so informed by his Lukacs emphasized that he did not base his own beliefs. He was a non-materialist in that ideas on Tocqueville, but merely cited him he believed that ideas are more important frequently in order to illustrate his own points. in explaining human behavior and history Lukacs explained that Tocqueville, as the pre- than are economic factors. He rejected racial mier historian of the then-emerging democrat- inequality, and he was deeply preoccupied ic age, had taught that the causes of historical with both the promise and the dangers inher- action are infinitely concealed and complex, ent in the democratic experiment. Finally, he especially in a democracy. Tocqueville is often was committed to the idea that religion was an understood as a conservative who sought to essential part of life, though his commitment explore the changing landscape following the was different from the rural fundamentalist slow collapse of the traditional European order strains he observed in the New World. defined by the authority of monarchs and History and the Human Condition is a powerful church establishments. The publica- collection of eight essays published between tion of volume II of Democracy in America 2002 and 2012, together with a complete in 1840 revealed the subtle and varied strands bibliography of Lukacs’ writings, spanning the of his thinking. His central theme was self- period from 1947, when he was beginning his government and its relationship to liberty, career, to the present. The bibliography is which he regarded as mankind’s most precious helpfully organized into sections listing books, possession.

December 2014 • THE FEDERAL LAWYER • 79 Yet, Tocqueville’s time in the young repub- face of events[,] was doing something profound especially during a private after-dinner walk, lic left him with an awareness of the rela- and new.” He sought to discover the forces probably on Wednesday night, September 17. tively “novel danger of democratic despotism,” that propelled the modern democratic system: Did Heisenberg assure Bohr that the Nazi and he believed it important that this danger what people think and believe as well as how attempts to create a bomb would stall? Did he be appreciated for its subtlety: “If despotism and why they think and believe what they do. say or imply that he would work to undermine were to be established among the democratic In Lukacs’ chapter on American excep- such efforts, or that he would otherwise provide nations of our days, it would be more extensive tionalism—a topic that may have a spe- Bohr with information related to the German and more mild; it would degrade men with- cial resonance today—one hears an echo efforts to create a bomb? Lukacs offers no final out tormenting them.” Tocqueville observed of Tocqueville’s influence. Volume I of opinion on these questions, but he emphasizes American democracy closely and saw in it the Democracy in America contained high that there was a “duality in Heisenberg’s mind, potential for a new species of oppression. praise for the “Anglo-Americans” and their a duality that existed and still exists to this day Tocqueville was keenly aware of the sig- new nation. But, as we have seen, Tocqueville in the minds of many of his countrymen. He did nificance of popular tendencies, and knew that had reservations about the new American not want Germany to lose the war. At the same “in men’s souls ... we may find the symptoms experiment. Lukacs’ topic in the chapter is the time he regretted the war—the war against of forthcoming events.” In turn, “mens souls” January 1946 “wise and profound dismissal of the West. ... [H]e did not wish the Nationalist might easily amount to a mob rule, whether ... American exceptionalism” by American his- Socialist Third Reich to be victorious.” His by the majority, with its unchecked power to torian Carlton J.H. Hayes. In the aftermath of ambivalence was “part and parcel of his anti- impose its will, or by a passionate minority that America’s unprecedented victory in World War Communism.” As Lukacs explains, Heisenberg thwarts all opposition. Man’s tyranny over his II, Hayes’ message was freighted with irony was apt to muse, “Had only Germans and fellows is always a danger. Lukacs writes in and prescience. He saw the thesis of American British not fought each other (in 1940 or 1941 History and the Human Condition that the exceptionalism as: or thereafter): this was the wish (and often the historian Arthur Schlesinger Jr. quoted Pascal daydream) of many ‘conservatives,’ not only out of context when he wrote in The Age of a result and a stimulant of growing in Germany but throughout Europe, for many Jackson that “man is neither angel nor brute.” intellectual isolationism ... a lurking of them till this day. ... At the bottom of this Pascal’s greater truth was that “man is both suspicion of inferiority, which long lin- wish (but not very deep down) was and is the angel and brute.” gered with us, [and] has had the usual belief that Communism and Russia were more In History and the Human Condition, psychological compensation in strident dangerous (and more evil) than were National Lukacs suggests a corrective to Tocqueville’s assertions of superiority. ... [This] trend, Socialism and Germany. That is a half-truth. But feared new species of oppression. Tocqueville if unchecked, can only confirm the pop- half-truths are more dangerous—and endur- believed, Lukacs writes, “that some kind of ular myths that the “American way of ing—than are lies.” aristocracy remains necessary to counter- life” is something entirely indigenous, Elsewhere in History and the Human balance a degeneration of democracy into something wholly new, and something Condition, Lukacs argues, consistent with his demagogic populism.” Did this mean, Lukacs vastly superior to any other nation’s. friend George Kennan, that the Cold War was a asks, that “Tocqueville, who was of course a It is also likely to strengthen our peo- consequence not of world communism, but of a nobleman by birth, had a nostalgia for an aris- ple’s missionary and messianic impulse, classic geopolitical struggle between the Soviet tocratic order that compromised his vision of which will have far greater scope and far Union on the one hand and the United States democracy”? No, Lukacs doesn’t think so, but greater opportunity for expressing itself and England on the other—a conflict that Hitler Tocqueville’s fear of the excesses of popular in the current aftermath of the Second had been convinced was inevitable. rule were well founded, in part the result of his World War. ... History and the Human Condition closes having observed firsthand the 1848 revolutions with an essay in which Lukacs asserts that the in Europe, where, he wrote, “The insane fear of The Dualities in Man’s Nature study of American history presents unique socialism throws the bourgeois headlong into In the one chapter of History and the problems that are related to the “structure of the arms of despotism.” Human Condition that is set outside the its democratic society,” and that these problems United States, Lukacs explores the relation- include the “persistence of American popular The Human Condition ship between World War II Europe’s lead- nationalism” and “the militarization of popular History and the Human Condition, how- ing atomic scientists, the German, Werner imagination.” Like Tocqueville, Lukacs does not ever, is not all of a piece. It contains essays that Heisenberg, and the Dane, Niels Bohr, both take the republic for granted, and he sees as diverge broadly in subject, though each may be Nobel Prize winners. Their relationship and possible a tragic devolution of American democ- said to deal with Lukacs’ unceasing explora- the events surrounding it formed the basis for racy. He quotes the Dutch historian Johan tion of the human condition. Yet the ghost of Michael Frayn’s 1998 Tony Award-winning Huizinga: “A too systematic idealism gives a Tocqueville is often close at hand. In an essay play, Copenhagen. In 1937, the Nazi press had certain rigidity of the conception of the world. that explores the idea that history is a form attacked Heisenberg, calling him a “white Jew.” ... Men disregarded the individual qualities and of literature, Lukacs emphasizes that many On Sept. 16, 1941, Heisenberg traveled from the fine distinctions of things, deliberately and important lessons about democracy can be Berlin to Nazi-occupied Copenhagen by night of set purpose, in order always to bring them gleaned from Tocqueville’s posthumously pub- train, walked to Bohr’s house and commenced under some general principle. ...” Agreeing, lished Recollections, a “brilliant memoir of the the first of three visits with Bohr, prior to leav- Lukacs sees a medieval strain in American 1848 revolutions.” In his 1856 Ancien Regime, ing Copenhagen five days later. Scholars have thinking—“a tendency to subscribe a sort of Tocqueville, in “going beneath the colorful sur- long speculated as to what the men discussed, substantiality to abstract concepts.”

80 • THE FEDERAL LAWYER • December 2014 Tocqueville in the Modern Era quality. In a concluding chapter in History and he was college material. One told him that he Lukacs’ most recent book, A Short History the Human Condition, entitled simply, “The would “always be a 75 [percent] student,” and of the Twentieth Century, is a general history World Around Me: My Adopted Country,” we another urged Yeshiva University to reject him, with a very broad topic. But, as Tocqueville find this quality expressed on a deeply per- which it did. once wrote, “General history is useful ... sonal level: At a summer camp before his final year in respect of the light which it throws on of high school, Dershowitz was lucky to meet human nature.” Lukacs writes, “From its very Ten years later Stephanie is dead and an inspiring rabbi whose faith in him led beginning, the United States represented the the asparagus and the raspberries do him to consider college, and he applied to progress of democracy. The great Alexis de poorly, if at all. ... Still there is that Brooklyn College. There, Dershowitz surprised Tocqueville recognized this. His genius saw a forest of greenery on the other side of the doubters and shot to the top of his class. change that ... was coming to France (and to the water; and on this side, our grass He moved on to Yale Law School, another most of the world) after perhaps thousands of descends to it, emerald and gilt under triumph, finishing first in his class. Alexander years. This was the evolution from aristocratic the sun, spinach-green after the shad- Bickel, the famous Yale law professor, arranged ages to a democratic one ... a change in the ows advance across it. One now unfor- a clerkship for Dershowitz with Judge David very structure of history.” gettable evening, about a dozen years Bazelon, a brilliant and driven judge on the “[T]he equality of human beings ... is ago, I suddenly decided to row down to D.C. Circuit. This, in turn, led to Dershowitz’s advancing,” Lukacs writes. “[T]he idea of my friends, the Reeves, two miles away. spending a year at the Supreme Court as a democracy or, more precisely, of popular sov- So I went, with the plashing of my oars clerk for Justice Arthur Goldberg. ereignty,” has become “more and more accept- the only sound, except for one far cry These chapters on Dershowitz’s clerk- able—and unquestionable.” But Lukacs, like of a loon. ... [Later] I was alone, in the ships are fascinating, as he describes Bazelon’s Tocqueville, is not offering unqualified praise. middle of the reservoir. Soon I saw not severe work ethic (“It’s only a one-year job and “To most people,” he writes, popular sov- a single light. Alone, on that dark indigo that means 365 days”) and constant criticism ereignty “meant the attractions of populism water, as if one hundred miles away of the drafts that he submitted. Dershowitz and nationalism. Few people understood that from any town, out in some wilderness, relates how Goldberg, in his memoranda to the populism was not liberalism and that national- under a sickle moon. I was full of grati- other justices and with procedural maneuvers, ism was different from patriotism.” In fact, tude for what God and this country had fought to save every death-row appellant from “[p]opulism and nationalism are the very worst allowed me, for this silent world where the imposition of the death penalty. Goldberg (and, alas, powerful) components of democ- I belonged, where I had chosen to live. was appalled that, nearly a decade after Brown racy.” Lukacs adds: “After the end of the A mile ahead, after the bend, I saw the v. Board of Education, bathrooms at the American Century, a major problem is not so lights of our house. In twenty minutes I Court were racially segregated, and that the much the existence of American omnipotence was home.  only black Court employees were messengers as it is the way millions of Americans and many and the barber (who refused to cut black of their politicians unthinkingly believe in it.” Jeffrey Buchella is a lawyer residing in people’s hair). Goldberg got Chief Justice Earl Many years ago, Lukacs wrote that Tucson, Arizona. Warren to put an end to these practices, and Tocqueville foresaw threats to individual lib- Goldberg also hired the Court’s first black erty in “the tendency which many social and TAKING THE STAND: MY LIFE IN secretary. political thinkers a century later were still THE LAW In 1965, with Goldberg’s aid, Dershowitz unwilling to recognize: the possibility that the BY ALAN DERSHOWITZ became the youngest professor whom Harvard age of aristocratic society and government Crown Publishers, New York, NY, 2013. 518 pages, Law School had ever employed. At Harvard, would be succeeded by bureaucratic society $28.00. he defied the prevailing stuffy atmosphere. and government rather than by a true democ- Reviewed by Henry S. Cohn He describes how hurt he was when a more racy.” In A Short History of the Twentieth experienced teacher refused to let him sit Century, after surveying the main events and Alan Dershowitz, a Harvard Law School in on a class, claiming that his lectures were developments of the last 100 years, Lukacs professor for 50 years, an attorney with an designed exclusively for his students. He faced concludes by quoting Tocqueville: “we are international reputation, and the author of 28 down several alumni who wrote to the dean perhaps too apt to think that civilization cannot prior books, has now, in a flourish, written a complaining about his teaching style. But the perish in any other manner [than by military summary of his life in the law. The book com- students appreciated his approach, which invasion]. If the light by which we are guided bines his autobiography with his thoughts on included techniques to relax nervous students. is ever extinguished, it will dwindle by degrees current events and courtroom personalities; For example, he would deliberately misstate and expire of itself.” it includes chapters on free speech, Israel and the facts of a case to amuse his students and the Palestinians, and on politicians, artists, provoke their reaction. Envoi and accused criminals that he represented or His departures from the Socratic method In each of the books discussed above, advised. resulted in his becoming Harvard Law School’s Lukacs asks the reader to contemplate seri- Dershowitz grew up in Brooklyn in an most popular instructor. One significant article ous themes, but his view is neither naïve nor Orthodox Jewish family. His secondary edu- from his early years at Harvard was “Psychiatry morose, and his focus is not entirely on history cation was at a local yeshiva. His teachers, and the Legal Process: A Knife That Cuts Both in the conventional sense. All his work has a on the whole, had no use for their overactive Ways,” published in Judicature in 1968. It is tempered, more philosophical, even spiritual and quick-minded pupil; none thought that still regarded as a significant essay caution-

December 2014 • THE FEDERAL LAWYER • 81 ing judges to avoid overreliance on psychiat- nal proceedings was inappropriate where the Rule I: Most criminal defendants are, ric experts in rendering decisions on mental district court had not found that the threat to in fact, guilty. health questions. the appellees’ federally protected rights could Rule II: All criminal defense lawyers, In his early 30s and an accomplished law not “be eliminated by [their] defense against a prosecutors, and judges understand professor, Dershowitz faced personal chal- single criminal prosecution.” and believe Rule I. lenges. He had married barely out of college Taking the Stand covers Dershowitz’s role Rule IV: In order to convict guilty and had two sons while attending law school. in some of the most high-profile criminal trials defendants, many police witnesses The marriage did not last, but, in his late 30s, of the 20th century. These include his defense lie about whether they violated the Dershowitz remarried and had a daughter of Claus von Bülow, accused of killing his wife Constitution. with his second wife, Carolyn. Carolyn became with an overdose of insulin. The trial became Rule V: All prosecutors, judges, and responsible for his taking more time to relax the basis for the movie, Reversal of Fortune, defense attorneys are aware of Rule on weekends—a secular “Sabbath”—and for in which Dershowitz was played by actor Ron IV. ... buying a vacation home on Martha’s Vineyard Silver. Dershowitz assisted in the defense where they spent their summers. Dershowitz of O.J. Simpson, including helping to plan Another example is his list of rules for also describes dealing with one son’s brain the demonstration for the jury that the attorneys defending high-profile cases. A tumor, fortunately cured by surgery and radia- glove didn’t fit. Dershowitz also discusses portion of these rules reads as follows: tion. That son is now a successful filmmaker. the less well-known part that he played in From his earliest times at Harvard, the defense of Sen. Ted Kennedy (D-Mass.) 1. Never take a case just because the Dershowitz has participated in trial and appel- when he was accused in the 1969 death of client is a celebrity. ... Make sure the late advocacy. He describes in the book many Mary Jo Kopechne at Chappaquiddick. The issues in the case are within your of the persons that he dealt with, and he states defense was successful in resolving the area of expertise. his views on their legal claims. In Byrne v. charges against Kennedy with the misde- 2. If you do take a case, don’t social- Karalexis (1971), he argued before the U.S. meanor of leaving the scene of an accident. ize with the celebrity. Never assume Supreme Court on behalf of a theater that Dershowitz remained close to the senator the celebrity is your friend. ... had shown the film “I Am Curious (Yellow).” and his family throughout Kennedy’s life. 3. Settle the case quietly if at all pos- A Massachusetts court had found the film Two other topics that Dershowitz sible. ... obscene, but the theater persuaded a three- takes up are the Clinton impeachment 4. Never say anything about the cli- judge federal district court to issue an injunc- and Mia Farrow’s accusations against ent or the case to anyone, unless you tion stopping Massachusetts from barring the Woody Allen. Dershowitz was never offi- are prepared to see it printed. ... film’s screening. The federal court found, in cially one of Clinton’s attorneys, but 5. Every time you meet the client, be Dershowitz’s summary, “that the government he was friendly with the President and prepared to be fired for telling him had no power to ban or prosecute an ‘obscene’ advised his lawyers. He writes that the what he doesn’t want to hear. ... film that was shown to the public in a the- lawyers ignored his advice that Clinton ater on the ground that it might vicariously default on liability in the Paula Jones Dershowitz has become a vital part our offend people who had a choice not to enter trial. This would have allowed Clinton legal landscape, and it is quite rewarding that theater.” Massachusetts appealed to the to properly refuse to have his deposition to spend time with him in this excellent U.S. Supreme Court, and Dershowitz argued taken, and it was at the deposition that book.  the case for the theater. The Supreme Court he first lied about having had sex with vacated the judgment not on the merits, but Monica Lewinsky. Others, such as the Henry S. Cohn is a judge of the Connecticut because a federal injunction of state crimi- legal journalist, Jeffrey Toobin, have dif- Superior Court. fered with Dershowitz on this strategy. Dershowitz was an admirer and acquain- ADDITIONAL BOOK REVIEWS tance of Woody Allen’s and a friend of Mia In addition to the book reviews in the pa- Farrow’s when the two actors had their per copy of this issue of The Federal Lawyer, acrimonious breakup in 1992. Dershowitz bonus reviews are included in the online ver- tried to mediate the dispute between Allen sion of the magazine. The following reviews are and Farrow and to resolve Farrow’s alle- available at www.fedbar.org/magazine.  gations against Allen regarding her chil- dren, and to avoid publicity. He accuses LAW, PSYCHOANALYSIS, SOCI- ETY: TAKING THE UNCONSCIOUS Allen of ignoring his advice, which led to SERIOUSLY ugly scenes in courtrooms and the media. BY MARIA ARISTODEMOU Dershowitz is a good teller of stories and Reviewed by Christopher Faille jokes, which he interjects periodically in the book. He also reprints from his earlier OWNING THE EARTH: THE works several lists that make telling com- TRANSFORMING HISTORY OF ments about law and lawyers in the United LAND OWNERSHIP States. For example, his “Rules of the BY ANDRO LINKLATER Reviewed by Jon M. Sands and Noah L. Justice Game” reads in part: Bucon

82 • THE FEDERAL LAWYER • December 2014