Felix Frankfurter; Roasted
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From 1920, when he and Roger N. Baldwin (ao anarchist oE the Bcrkman- Goldman group), William Z. Foster (then a direa action syndicaliat, later the leading American Communist), Elizabeth Gurley Flynn (the IWW terrorist who became a Communist), and other leaders of radical revoludon founded the American Civil Libertiw Union, until long after 1939—when his nomination to the Supreme Court was confirmed after determinedbut despair ing opposition—Felix Frankfurter was by reputation, and an overwhelming volume of documentary cvidenc^ the most dangerous radical in Attienca.
In and Out of the Pantheon Late in hia career, Frankfurter de- cided that he did not wish to go down in history as the most successful^ revo lutionist of his rime. He set about cre ating a new image of himself; so that by the time he retired from the Supreme Court he would be hailed as a great conservative and a sinccre friend of the Constitution he had destroyed and the Constitutional Republic hehad betrayed. The campaign had its climax at Har vard. There, on April 30, 1960, ceedings in his Honor were conducted at a meeting of the Council ofthe Har vard Law School Association. Adula tory addresses were made and a portrait bust of him reverently accepted by President Pusey and Dean Griswold. The deep significance of the occasion was put inproper perspective by Frank furter himself. "I come back, he said, "to these halls as the great figure of Grecian mythology who had to touch earth every once in a while to regain even his divine strength."* A few months later came the book ^OeeuloTul fampblet Nvmbtr Tbrn. Cambridge, ISfiO, p. 1.
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which I cite as FjFJ?." FJFJi. is de pains to talk himself out of his rightful scribed by Frankfurter as a transcrip place in history? Had he lost faith in tion of tape-recordings of comments on the Revolutions he had spearheaded? questions put to him initially on behalf Was he dismayed by the havoc they had of the Oral History Department of wrought and che harm they had done? Columbia University, as an academic Or does he fear that even at this late enterprise to secure raw materials for day they may not goon tothecomplete future historians. In the Foreword, Dr. success that would gain for him, and Phillips tells us that the rwordings be William Z. Foster, and Elizabeth Gur- gan in 1953. And, if this is not a mis ley Flynn, and Alger Hiss, andThomas print for 1958, they were continued over J. Mooney, and BigBill Haywood, and a period offive orsix years because there one or the other of the Sacco-Vanzetti are references to at lease one event of pair immortal renown in the pantheon 1957, to-wit the "recent*' Serv^e case of International Socialism? Does he re (p. 171). Frankfurter and Phillips both member uneasily that the IWW Revo tell us that at the time the recordings lution he tried so hard to save in 1917- were made, there was no thought of 1918 was frustrated by his mortal ene their immediate publication. But at mies, the Department ofJustice and the some time, "through weakness or good FBI, just when it seemed certain of nature," Frankfurter consented to the success? "present publication." I suggest there Or is it possible that F.FJ2. is not a fore that die recordings were actually bold attempt to create a false image by made in 1957-1958 and that they were the devices he has used so often—^false intended for immediate publication for hood, distortion, and evasion—but ra purposes which my text will illustrate. ther the self-deception of a troubled At first I read this as an Apologia spirit to whom neither Freud nor Rein- hold Niebuhr could possibly bring com •1 Pro Sxta Vita, It was only later that its true significance burst upon me: fort? has not a single note ofapology—in the Felician lexicon there is no such word Talk and Doable Talk — and Frankfurter is by no means History if it finds it necessary to ap ashamed of his life as a radical. He praise Frankfurter's personal philosophy just wants to conceal it, and present an and political theories will find little to image of himself as a competent, con go on. He has never told us what they servative, somewhat snobbish lawyer; were. Indeed he has been very coy dwelling on Olympus with Mr. Justice about them. He had a good chance to Holmes and lesser deities, from whence correct that oversight when he was ex he descended now and then to intervene amined by a Senate sub-committee in naively and dispassionately in mundane January, 1939, with the confirmation affairs—^some of which by coincidence of his appointment to the Supreme happened to have revolutionary or ra Court in issue.But as he himself reveals dical import. in he was a slippery^ witness, Just why did Frankfurter take such playing tricks with the Committee, and having a wonderful time outwitting 'Felix Frank{nrtcr RtminUctt. ReeorJtd l» Senator McCarran and Senator King, with Dr. HarUm B. Phillips. Reynal tnd Company, New York, 1-960. whowanted toknow whether he agreed
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Felix Fmnkhirceri Roasted
with the doctrines of Harold J. Laski, tion in his text should be compared as expressed in a book of Laski's called with the actual colloquy: Communism, or believed In the ideolo Senator McCarran, If [^tbe book] gy of Marx or Trotsky. The Senators advocates thp doctrine of TAarxitm, did not find out. All they got were side would yon agree with it} stepping evasions, double-talk, and Dr. frankfurter. Senator,! do not breasc-beacing bombast. When he camc believe you have ever taken an oath to write F.F.R. he had characteristically to support the Constitution of the United States with fewer reierva- forgotten what he actually said. He only lions than / have or -wotild now, remembered that amid terrific applause nor do / believe that you are more he had confounded McCarrnn by attached to the theories aridpractices saying in effect, "If I understand the of Americanism than I am. I rest my philosophy of Communism and die answer on that statement.^ schemc of society it represents, every thing in my nature, all my views and Among other forgotten events, Eliza convictions, life-long cares and con beth Dilling, aspunky American patriot, cerns, are as opposed to it as anyone author of The Red Networ\, gave can possibly be. If I understand what *FtUx Frankfurltr p. 28J. Americanism is, I think I'm as good 'Transcript of the Hearings on tht frtnKiwUt an American as you are."" The quota Hovunatian, pp. 12S-\i6.
m
Elliab*th Gurley Flynn, an old ally with F«l>x Prankfurtor, It thown hara with Out Hatt. Th* UPl dflicripllon did.nar uy who wa* raodlng Iho nAWipapsr.
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Frankfurter a very bad half-hour. years of his life, to the destruction of Frankfurter, one of the first of the the Constitution and the establishment smearbunders> calls her a "crackpot." of an absolute, tyrannical government? But before accepting this convenient My own idea is that he was a characterization the reader should see dedicated or disciplined revolutionist her incisive testimony and compare it without a credo, a man of action and with the fustian rhetoric of Frankfurter intrigue, who was not at all concerned at his "gabbiest, foggiest" best. with the ideology behind the Revolu He has denied that he was a Marxian. tions in which he participated. He him "I don't believe," he writes, "in spirit self was not concerned with intelleaual ual Messiahs, I don't believe in economic speculation; he would not have written Messiahs, I don't believe in political Colonel House's PhiUp Dru, or Walter Messiahs .... I [do not] think that Lippman's poisonous ponderings. Some Karl Marx has discovered the eternal whatcontemptuously he writes; "Walter laws of social arrangement. Harold [Lippman] knows that his job in life Laski was a Marxian, and I was not." is to sit in a noise-proof room and draft Frankfurter had no excuse for hold things on paper. He's never been ing radical opinions. America gave him through the heartbreaks in making a success which only America could paper walk."® And it is noteworthy that give. He has a good mind and he had Colonel House did not include him in a good education—^public school 25 on the House inquiry to draft terms of Fifth Street, a classical course at the peace, and Wilson's Fjpwrteen Points, College ofthe City ofNew York (AJB., but did send him to Gibraltar, Madrid, 1902), and the Harvard Law School and Paris on missions of secret and (LL3., 1906). To the latter he attri devious diplomacy. His whole concern butes the professional competence and was for personal power and the success high ethical standards he admires so of the Revolutionary activities which much in himself. If he breathed-in gave him power. In this respect he re revolution at East Side cafes,and in the sembled Lenin, Trotsky, and the Bol reading rooms and forums of Cooper sheviks generally. They, also, were not Union, where he tells us he received interested in establishing a new eco much of his education, he should have nomic or political system because they laughed it off in the clean air of the thought it would benefit the people. Harvard Law School. For he attended Their whole interest was in seizing during the Golden Age of Harvard, power. And like all conquerors they before the Waxmoths and the oddities had not the slightest concern for the they bred had destroyed the fabric of welfare of the conquered people. If the Mother-Hive. And as a student of they had political theories they were a Jewish history he must have reaUzed means to an end—to be used, aban that nothing could have been more dis doned, or modified as the exigencies of astrous to the Jews or any reli^ous power and conquest demanded. The people than the success of a Socialist fact that their revolutions always re Revolution here or anywhere. sulted in death and destruction, poverty Why then did thisableand fortunate and famine, woe and misery, was to man misread the meaning of America and devote his great talents, and the 'Felix frankfurter Rtmiaitcn, p. 160.
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Felix Frankfurter: Roasted
them oE no consequence. In this resect Chief-ofStaff, an unscrupulous liar; and they were morally more reprehensible W. Cameron Forbes, Governor-General than the misguided but sincere revolu o£ the Philippines, well born but brain tionists who did believe that a nobler less. On the other hand there were those civilization would be built by violent who agreed with Theodore Roosevelt's or Fabian revolution. Thus it is entire characterization of Frankfurter: an ly possible that Emma Goldman be absurd misfit in government. longed in that class and was sincere Although he had campaigned for when she justified the assassination of Roosevelt in 1912, Frankfurter held President McKinley. Nor have I much over in the Wilson Administration as doubt that there are those in Dr. Schles- an assistant to Secretary of War inger's Vital Center (the Non-Commu- Lindley M. Garrison. But they parted nist Left) who sincerely believe that company when it was found that America is a very bad place and will be Garrison, although "not quite a fool," much better when they have destroyed had a closed mind and could not be business, patriotism, religion, morality, shaken loose from the "big sterile ab and transferred national and state sov solutes of the Constitutions," which ereignty to a Socialist World State. stood in the way of federal reguLidon of power which was then Frankfurter's The Trojan Horse pet project. When he graduated at Harvard Law Then out of the blue came the call School, Frankfurter became the "slave" to Harvard. It seems that by midsum of a New York law firm on a one-year mer of 1913 some mysterious They had, indenture. After a month or so he broke without consulting with him,decided to his contract because he found, after establish a Professorship of Law for much anguished soul searching, that he him and had deputed a young Profes did not want to become a leading cor sor, Edward H. Warren, to invite him poration lawyer of the "bootliclung" to join the faculty. The letter contain variety—and did want to become Assis ing the invitauon has been mislaid, and tant United States District Attorney for its date forgotten. But upon its receipt the Southern District of New York Frankfurter sat down and put on paper under Henry L. Stimson, a posthe held what was to be said for and against ac during 190^1910. Stimson put him in cepting it. His memorandum of pros charge of habeas corpus cases resulting and cons is dated July 5, 1913. He did from detention of aliens at Ellis Island. not, however, for many months com When Stimson became Secretary of municate his acceptance to anyone, nor War in President Taft's cabinet, Frank did They do anythingaboutestablishing furter became "hisjuniorpartner"in all the new professorship. As it turnedout, the affairs of the War Department; a new professorship was not required. Frankfurter's title as Law Officer, Bu During the summer of 1913, Professor reau of Insular Affairs, being only the Bruce Wyman became engaged in a nominal shell. He was not entirely controversy with Frankfurter's mentor, happy—Taft, he thought, was an inef Louis D. Brandeis, who was a trustee fectual President; Clarence R. Edwards, of the Harvard Law School and in Chief of the Bureau of Insular Affairs, fluential in its affairs. Wyman had been a charming phony; Leonard Wood, the a Professor since 1910, and anu)ng other
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subjects rnught the coursc on Public But whether Frankfurter's account.is Utilities. He had also, from 1911 to another of his bogus anecdotes, or a 1913, been counsel for the National truthful one, is of minor importance. Civic Federation, which had been or Of major importance are the para ganized by Mark Hanna and Samuel graphs of his memorandum which gave Gompers to promote industrial^ peace the reasons for his acceptance of the through cooperation. This organization call. was regarded by radicals as a conspiracy "The problems ahead [he wrote] are to betray labor. In 1913 Brandeis was at economic and sociological, and the war withtheNewHaven Railroad, and added adjustments of a government in that year Wyman accepted a retainer under a written constitution, steeped in from the railroad and madespeeches on legalisdc traditions, to the assumption its side of the controversy without re of the right solution of such problems. vealing publicly thathe was in its pay. ... In the synthesis of thinking that When this was discovered he was must shape the Great State, the lawyer forced to resign.® His resignation was is in many ways the coordinator, the dated December 20, 1913, and in Jan mediator, between the various social uary 1914, Frankfurter was appointed sciences. to fill the vacancy. He remained as a "This organized thinking must be as Professor of Law from September 1914 sumed by our law schools, and the until 1939, when he went on the Su most hopeful center, the Rightful leader, preme Court. is the Harvard Law School. As a matter of fact, it has been creatively stagnant • |.- I suspect therefore thatthesuggestion to Frankfurter which caused him to for almost a generation .... Well, with write the memorandum he dates July [Roscoe] Pound there, Tdiink we could 5, 1913 came from Brandeis, and that lug in aTrojan horse of what [Learned] Warren's offer on behalf of the faculty Hand calls our 'heretical thinking.* was not made until after the vacancy The resistance would be great, in at had occurred. I suspect also that Bran mosphere, colleagues, Higginson-Lowell deis engineered the Wyman resigna University respectabilities, etc., etc., but tion. But it is possible that he merely 1 know it can be done .... It is a great took advantage of it to getFrankfurter big job that has to be done—to evolve a in. I was one of Wyman's pupik in constructive jurisprudence going hand 1911 and know that his views on public in hand with the pretty thorough-going utilities and constitutional law would overturning that we are in for." be offensive to Brandeis and Frank This is clearly a declaration of war furter.'' There is also the possibility that on the Constitution and free society. If the memorandum is misdated and was it had been made public in 1913, the really made in January 1914. Trojan Horse would have remained outside the walls of Harvard. But it 'New York Times, December 21, 2J, 1?1J» May was not; and Frankfurter was allowed > 1 23, 1514. to diffuse among his students the "pro In June 1914, Frankfurter was under c^imra- tion u PtMidcnt of CCN.Y. (New YorkTmei, phetic thinking" which was to build June 1«. lPt4), but thu offico fell to Colonel the Great State—and leave the Consti- House's brother-in-law, Sidney Edward Mezea (180-1991). who in 1917 aho became chairman of the House Inquiry. •ff/i* frmkfwter RmMsea. pp. 80-81.
AMMJUCAl^ OPIWION 26
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prudcncc the Supreme Court can,^ by tuiion in shambles. the interpretation of broad provisions It is possible to state simply how of the Constitution, and words of "con Frankfurter and his mentally anarchic venient vagueness" like "liberty," and associates of like mind revolutionized phrases like "due process of law, reg che teaching of law and the conccpt ot ulate commerce ... among the several the judicial function. In his day as a states," "general welfare," "common student, and until he returned as a defense," "supreme law of the land," teacher, law was taught at Harvard as et cetera, take unto itself very wide ju the perfection of reason. Frankturter dicial latitude in determining the un taught, very subtly at times, that the defined and ever-shifting boundaries law was what the judge in the instant between state and nation, between free case said it was. This left the judges dom and authority. free to substitute considerations of pub A jurisprudence built on these prin lic policy, social or political theories, ciples was dangerous enough in the and personal prejudices, for precedent hands of honest and patriotic judges. and reason.® But when it was entrusted to men filled In his biography of Mr. Jusuce with "heretical ideas," intent on po Holmes in the Dictionary of American litical, economic, and social revolution, Biography, Frankfurter explains how disaster was inevitable. By interpreting under his theory of a constructive juns- words and phrases of "convenient ®For amplification and example, «« chapter. vagueness" as the exigencies of the c^e "Funciiofu o{ a Judge" in Felix Prankhrtrr Kem- or the prejudice of the Court, de inhcei, p. 292 fit »eq. manded, the Constitution could be amended every Monday morning by five men. Congress could be given or denied power, the states could be de stroyed, and basic freedoms redefined or denied. The seeds planted at Harvard were soon carried elsewhere. The triumph of irrationality in the decision of the Su preme Court is complete so far as the Constitution is concerned, and almost complete in the law schoob, which with honorable exceptions openly boast that tiiey now tcach law as one of the social sciences. Criticism has come from stut tered sources, but again with honorable exceptions, the press, the law period icals, and che Bar Associarion have seen fronkfurtar It »t»owB !»•«, i* 1939. Ofl W» way to it that discussion of great Constitu to oppeer bafor* a Sanof® commlHw tor op- tional questions which involve criticism proval of hi* nomination to th# Supi«m» Court. Nota thai o» thot tlma ho feU ih* pIns»-nM w«r* of the Supreme Court arc discouraged a bit •ffata for lo mbgjt a mdleol- 'OJ"* or suppressed." Even legal monstrosi Istor. Porhoiw ho Ihought thoy would lond Wm ties likethe desegregation opinion are dignity.
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solemnly supported by law professors The FJ'Ji. chapter on Sacco-Vanzetii who, ualess entirely converted to the starts with an attack on President Low Frankfurterian cult of the irrational, ell. There Frankfurter quotes two re must read them with disgust." marks by John F. Moors, Harvard 1883, In some of his later opinions, Frank a Boston Banker, member of the Sacco- furter departed from the more extreme Vanzetti Defense Committee, which of his associates and was widely hailed read as follows: as a conservative. This, like his disin It was characteristic of Harvard genuous defense of the Service opinion, and in a way to the glory of Harvard in F.FJI., must be taken as a part of that two Harvard men were the his image-building.^® He has, however, leaders of the opposing forces in the never disavowed his irrational juris Sacco-Vanxetti affair. Here was A. prudence or repented his share in the Lawrence Lowell, the president of the school, and here was Professor long line of decisions which have done Frankfurter of the Harvard Law so much harm. School, who were the spearheads of those who expressed conflicting The Two Spearheads views .... The list of attempted disassociations Lawrence Lowellwas incapable of in is a long one. To check all seeing that two wops could be right of them against the facts would take and the Yankee judiciary could be several hundred pages. From many tvrong. available examples I have selected Sac- Frankfurter goes on to state that this ^ -r- . ' co-Vanzetti because the circumstances remark of Moors about Lowell went to -! •• can be stated with comparative brevity, the root of the difficulty. He further ac I with documentation suppliedby Frank I .• . cused Lowell of having suppressed his i • ^: furter himself. belief that something had gone awry, i • "! because of his £aith in his own crowd. '"a criticitm of opinioiu of the Supreme Giurc of Lowell became, Frankfurter asserts, a tho United States which dtprived the states of : power to punish tabvenion, and tho Federal Gov- more civilized partisan than Judge ernmenc of effectiTo means of preventing ic was WebsterThayer. But he and his crowd incorporated in s report of an American Bar Asio- were too hesitant, timid, and cowardly eiation tuE>-comniittee on Anti-American Activi. ties in I9f9. Although it was readf for submission to speak outj with "the result that those to the annual meeting and is unexceptionable in who have do scruples, who are ruthless, ! : tone and rtaton, the officers of die Auaciacion suppressed it. A report of the Conference of Chief who don't give a damn, influence grad I JuacicM of the Scace* on the same and other opin ually wider and wider circles, and you ions made the same year a>uld not be suppressed. get Hitler movements in Germany, But it i* noteworthy that this historic <^unient has never been published in the Journal of the Huey Long ascendancy in Louisiana, AmtrUon Bar AssocUiHon. McCarthyism cowing most of the Sen "JJrcwB V. Board of Education, 347 U.S. 484 ators of the United States at least to the A good job of assembling examples of irration extent that they did not speak out, e( ality, absurdity, ond dubious patriotism in the cetera, et cetera Supreme Court ha* been done by Kosalie Gordon, Nine Men A^almt America, New York, Devin- It is distressing to lenrn that, as late Adair. 1$;8. See also the articles by Eddie Rose, as 1960, Frankfurter could find it in his "Coincidence or Treason," Volume V, (April heart to make this contemptible attack 1962): Revilo Oliver, "The Warren Gang," Vol ume V (December \961) in American Opinion, ^felix Pranhfurler RemittUcu, p. 171. **Ptlix frankfurier Reminiscet, p. 106.
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on the mnn who had befricaded hiro from the righteous fury of loyal Har vard men who would have c&st hmn out—bccause of his services to the shevik and IWW revolutions, and his deviations from the paths oflegal cthi« and truthful scholarship. But this is the real Frankfurter speaking — the con scious, disciplined, vindictive revolu tionist who has refused to retreat from falsehood or observe the decencies or civilized controversy. , . i And yet Frankfurter, in his Olym pian phase, is very proud of his profes sorship at the Harvard Law School, and very anxious to be ranked with the great lawyers of its Golden Age who had made it great. They were of the type of Lowell himself. And, «n Sacco-Vanzetti case, Lowell had actM A|a*r Htii had w many 0r«o1 frltodi thai H1« unfair id HU. io say that F««x in their tradition. Frankfurter on the iu*t o W«n FEBRVARY. 196} ftUG-10-E005 09:58H FROM:BflUflRIflN WASTE SERUI C859) 485-1406 TO;915022411552 P. 10 \ Felix Frankfurter. Roasted job he took on—the kind of thing that izingly precisc lawyer, just doing a job seemed ro him to be the most natural o£ scholarly legal research rwuking m thing to do. ,, rv • an article for the Atlantic, and a dispas Well, well! To begin widi, theBram- sionate little book which failed ot its trce murders did not occur in the sum purpose because "irrationality won me mer of 1920 when Frankfurter was in day. The attempt ac disassocwuon be Europe. They occurred on April 15, gins with an amazing flight of fancy: 1920 when Frankfurter was in Cam The Braintree crime ibe vmtes. bridge. The two men were arrested on was committed in the swn^r of May 5, 1920, while Frankfurter was 1920 while I was abroad. Needless still in Cambridge, and on May 7, 1920, to soy it wasn't reported in the the names and pictures of Sacco and English papers, or the French pa^rs. Vanzetti were on the front pages ot Most of the time I was mEngland. the Boston Herald and other Boston When I arrived here in papers. On the same day every paper opening of the law school, I dtdn t carried a full account of Frankfurter's know (hat there was snch acn^ as argument in the Skeffmgton habeas the Braintree holdup mnrder. So far corpus case, which had been made on as I knowI'd never heard the narMi •Sacco and Vanzetti. I kneiv not^g May sixth in Boston before Judge An- about it—just nothing. Soon, how derson.The accountof the argument in ever, it got into the papers^ ^ i the Herald was on the front page, four didn't read anything about be inches below Sacco's picture. Can any cause it was my habit, U my babtt one doubt that Frankfurter saw die . , . not to read accounts of trials as names and pictures of Sacco and Van reported in thepress zetti on May 7, 1920? on over the years, into i92> .... On Saturday, May 8, 1920, the Boston 1 There it was. I paid no attei^m to Herald had another front page story 'i it, hut one day J saw that Willu^ about Sacco-Vanzetti which was con G. Thompson bad become counsel for Sacco-Vanzetti, and that interested tinued to Page two. This issue of we me ... One day I saw in the Herald must also have had special in papers, THOMPSON MAKES MO terest for Frankfurter, On Page three TION CHARGES FRAME-UP.. •. there was an account of the argunwnc Thompson {had] made a motion for in the Skeffington case by ^5^^''- a neiv trial based on an affidaint of ter's associate. Professor Zechariah Cha- one of the ballistic experts of the fee. On die same page diere was also a Commonwealth, Captain Proctor*... report of a meeting of the Harvard When 1 read about that motion Liberal Club, held in the evening of something happened to my May 7, 1920, addressed by Professor Fe Then, thus "triggered" into action, lix Frankfurter and Sidney Hillman. Frankfurter tells us he began to study Nor did Frankfurter's state of ignor- "the five or six thousand pages of the ance and indifference about Sacco-Van- record" and to write his Adantic ar zetti continue until 1925. ticle, and what he calls his little book, In January, 1920, Frankfurter. Mm- based, as he says, on a dispassionate ex beth GurUy Flynn (then o£ the IWW amination of the record, just another but now a top Communist leader^, William Z. Foster (long time head ot frankfurter Reminkctt, p. 208 ec jcq. AMEBJCAN OPINlOh 30 i .Ji. -V r flUG-10-S005 09;59ft FROMrBflUflRIftN WPISTE SERUI C859 ) 485-1406 TO;91502S41155E P. 11 TT Felix Frankfurter; Roasted the Communist Party in the United him to look into the Sacco-Vanzetti States), and Roger N. Baldwin (an an case so as to get some favorable pub archist of ^e Berkman-Goldman licity for the defense. Theeditor stayed group) founded the American, Civil two days and then told Tresca that Liberties Union.^® This organization there was no story to write about, "Just : •! immediately undertook the defense of two wops who got themsleves into a I Tom Mooney, whom Frankfurter had jam." i^ter this Miss Flynn brought • .1 saved from execution but who was still Mary Heaton Vorse to Massachusetts serving a life sentence; Eugene V. and after the two women had visited Debs, Bill Haywood, and the IWW Sacco, Mrs. Vorse wrote an article and prisoners whose Revolution had been also took the case to the A.Ci.U. smashed in 1917-1918 by the Depart From that time on A.CI..U. was in the ment of Justice and the F.BJ. in spite foreEront of the defense."^ of Frankfurter's efforts to save it; and On December 29, 1920, Frankfurter's the Communists arrested in the raids own journal of opinion, the New Re' of November, 1919, and Janua^, 1920.^® public^ began its ksng exploitation of A.CJL.U. became interested in Sacco- Sacco-Vanzetti by publishing thearticle Vanzetti on or before November 22, "Eels and the Electric Chair." The 1920, when, as appears from the min author of this wasthe CommmustJohn utes of its mecung of that date, Mary Nicholas Beffel, who was at that ^e Heaton Vorse reported on the "two and during the trial a paid publicity young Italian anarchists on trial in Bos agent of the defense. He also covercd ton," stating that they had been indicted the trial for the Federated Press, the under questionable circumstanas and Communist news association. because of their activity on behalf of On February 19,1921, the New Eng the anarchist, Andrea Salsedo. It was land Civil Liberties Conmiittee, an af agreed that the Union should do every filiate of A.Ci.U., sent out an appeal thing possible to secure publicity for for funds for the Sacco-Vanzetd de the case.^® Elizabeth Gurley Flynn tells fense. Frankfurter's name appea" on us that in the summer of 1920, Carlo the letterhead of that appeal.® Tresca (her "husband") who had en Before we get to 1925 we must also tered the case in August, 1920 sent for look at the events of 1924, for it was a former City Editor of the Socialist in 1923 and not in 1925 that the head daily, the New Yor\ Call, and asked line and news itenn, which did some thing to Frankfurter's insides and "Lucillc Milner, EdncaHon of tn American Liber al, An Atttobioirapby, New York, 1914, p. 123. The author was Secretary o£ A.C.L.U. from icj "See its Reports which are replete with references organization in 1920 until ihe resigned in \94J. CO the from 1P21 on. Unless Frankfurter Ic is noteworthy that in fJ'.R., Frankfurter does foiled to read every one of themand all the com not mention Mile Milner, Baldwin, or Miss Flynn munications on the caw which went oat with his and hasonly an incidental mention of N®' name on the letterhead, he could not have failed does he mention the A.C.L.U., its affiliates, and to leam of ii long before 192S. tubiidiaries, several of which, like the A.CX.U. "Frankfurter's close connection with the New itself were classed as subversive by invesogaung Republic is told by him in Felix Frankfurter commictecj. n^mwitees, p. ei teq. . « . „ "Milner, Op. eit., pp. 9, 17. , „ „ "See reproduction of this letter m Robert H. ^ixabcth Gurley Flynn, I Sp*ak My Oum Montgomery, Saeeo-Vanxettl'. The Murder and published by Masses & Mainstream, New York, the Myih. pp. 72-74. "flor/OT Herald, November 7, 192). l 1?JJ, p. 29B. 31 FEBRUARY. 1963 :• 4: •/ !•'if.ti'' fiUG-10-S005 10:001=1 FROM:BPlUflRIPlN WASTE SERUI C859D 485-1406 TO:91502241155E P. 12 \ Felix Frankfurten Roasted "triggered" him into action, appeared."^ inexplicable statement: Nearly a year elapsed between the When I v/rote my little book "triggering" headline and Judge Tha- \Frankfurter writes'\ j read, re-read yer's decisions denying all the motions and re-examined the five or six thousand pages of testimony over for new trial. His decisions are dated and over again. I went over and over October 1,1924, and it was shortly after my little book again and again test this date that Fred H. Moore, whose ing it against the record and so on. blackmail and intimidation of the wit My wife and my secretary dropped nesses Andrews and Goodridge, out. Th^ wouUn*t read proof any severely criticized by Judge Thayer, more with me. My v/ife said '*Wby withdrew from the ease. His with do you go over this? You've done it drawal was forced by Sacco who had twenty times}** from the start been hostile to Moore I said, [he goesow] **Jt*s humanly impossible to avoid some errors, but and now threatened to write a letter if 1 havea comma insteadof a semi discharging him. Elizabeth Gurley colon, or a semi-colon instead of a Flynn had the unpleasant assignment comma, that iifill be blown up to of the actual discharge ofheroldfriend, some heinous, venal offense in an and the difficult task of finding a suc effort to discredit the whole, and so cessor as chief counsel. On the recom far as it lies within my power J don't mendation of Frankfurter himself" she want to have a mistake in punctua interviewed William G. Thompson tion.'"" who, after the Garland Fund had fur Of course there never were five or nished $25,000 for his retainer, entered six thousand pages of testimony (there \ . his appearance on November 25, 1924, were less than two thousand) and the which is still not 1923. few shore quotations and references to Frankfurter then goes on to tell us it in the book could have been checked ,1.^ I'i that after the reading of the headline and double-checked by author, wife and had triggered him into action he began secretary in an hour without undue fa- at once to study the five or sixthousand tigue.^® Working alone I was able to pages of the record, and the result was check the references and the quotations the article which eventually appeared in half that time. But it took me several in the Atlantic Monthly, and "then the days to list and discuss, in a page-to- little book which had footnotes that El- page sequence,the matters of fact which lery Sedgwick didn't have room to the indefatigable Frankfurter invented, print in the Atlantic."''® misstated, suppressed, or distorted.'® And then we come to the following I did not find any mistake in punc tuation. "Plynn, op. dt., p. J19. Frmkfurttr Kfminttets, page* 21J-4. The omisfton of the footnotes seriouiiy impaired the Frankfurter Rnninisca, p. 216. arcicie at an accuratc surrey of the caac becauac "Pranicfurter's little book contains 118 litde page* they contained the only reference to two important of which only Si are devoted to the trial. A one items of the evidence, to-wtti Sacco'a cap and paragraph footnote is devoted to the Bridgowaear Berardelli's gun, and tfie fact that Vanzetti did case. I not take the stand at Plymouth. See Montgomery, '"As yet unpublished; no examples will be found op. eit., pp. IIS.117, as tt t*q. in Montgomery, op. cit., patslm. 32 AMERICAN OPINION