Article Elusive Advocate: Reconsidering Brandeis as People's Lawyer Clyde Spillenger t CONTENTS INTRODUCTION: BRANDEIS AND THE LAwYERING IDEAL .......... 1447 I. BRANDEIS AND REFORM POLITICS: THE POWER OF NONAFFILIATION ........................ 1451 A. Brandeis and Mugwump Political Culture .............. 1452 B. Fusing the Self and the Whole: Brandeis, "Interest," and Progressive Political Culture .................... 1463 II. BRANDEIS AND LAWYERING: THE DILEMMA OF REPRESENTATION ............... ...... 1470 A. Images of Brandeis as Lawyer ................ ...... 1471 1. The People's Attorney ................... ...... 1471 2. The Mediator ......................... ...... 1473 3. The Independent Lawyer ................. ...... 1474 B. The Uses of Unpaid Lawyering ............... ...... 1477 1. "I Want to Be Free".................... ...... 1478 t Acting Professor of Law, University of California, Los Angeles. Internet address: [email protected]. Portions of this Article were ventilated at the Conference on Jews and the Law in the United States, held in November 1991 at the University of Wisconsin; at the Yale Legal History Forum in February 1992; at the 1993 Annual Meeting of the Law and Society Association in Chicago; and at the February 1995 meeting of the UCLA Law School Thespians. Of the many who have helped me with this Article, I want especially to thank Rick Abel, Susan Carle, David Brion Davis, Catherine L. Fisk, Robert Goldstein, Laura G6mez, Hendrik Hartog, Gillian Lester, Jerry L6pez, Karen Mathews, Carrie Menkel-Meadow, Emily Powell, Tanina Rostain, Bill Thomson, and Steve Yeazell. I am grateful for financial support provided by the UCLA School of Law Dean's Fund, the UCLA Academic Senate, and the Keck Foundation, sponsor of the Faculty Workshop on Legal Ethics at UCLA School of Law in the Fall of 1993. 1445 1446 The Yale Law Journal [Vol. 105: 1445 2. The New England Policy-Holders' Protective Committee ......................... 1480 3. The Sliding-Scale Gas Affair .................... 1482 C. "Representation" and "Standing" in the Public Sphere .... 1487 D. The 1916 Confirmation Hearings: The Lawyer as Judge .... 1498 1. The Lennox Case: Representing the Situation ........ 1502 2. The ICC Rate Matter: Representing the Public ....... 1511 3. The United Shoe Machinery Matter: Dividing Public and Private .................... 1517 IMI. LAWYERING VISIONS AND THE MEANING OF BRANDEIS ....... 1522 A. Independence, Loyalty, and Dialogue ................. 1522 B. The Meaning of Brandeis ......................... 1529 CONCLUSION ........................................ 1534 1996] Elusive Advocate 1447 If I know your sect I anticipate your argument. I hear a preacher announce for his text and topic the expediency of one of the institutions of his church. Do I not know beforehand that not possibly can he say a new and spontaneous word? Do I not know that with all this ostentation of examining the grounds of the institution he will do no such thing? Do I not know that he is pledged to himself not to look but at one side, the permitted side, not as a man, but as a parish minister? He is a retained attorney, and these airs of the bench are the emptiest affectation. -Emerson, Self-Reliance' I would rather have clients than be somebody's lawyer. 2 -Louis D. Brandeis INTRODUCTION: BRANDEIS AND THE LAWYERING IDEAL No one holds a surer place in American legal iconography than Louis D. Brandeis. And, unlike most celebrated jurists, Brandeis is almost as revered for his exploits as a lawyer as for his judicial works. Brandeis's biographers regularly call attention to the public spirit and daring he displayed as "the people's attorney.",3 Scholarly critics of mainstream legal professionalism likewise point approvingly to Brandeis's approach to the practice of law, sometimes citing it as an alternative to the crabbed and uninspiring ethic that is said to dominate American legal practice.4 Since academic writing on lawyering has a characteristic concern with praxis, emphasizing norms of lawyer behavior (unlike, say, scholarship on constitutional law, whose content is mostly propositional), these paeans to Brandeis have the instructional tone 1. RALPH WALDO EMERSON, Self-Reliance, in THE PORTABLE EMERSON 138, 144 (Carl Bode & Malcolm Cowley eds., 2d ed. 1981) [hereinafter EMERSON, Self-Reliance]. 2. Quoted in Ernest Poole, Brandeis: A Remarkable Record of Unselfish Work Done in the Public Interest, Foreword to LOUIS D. BRANDEIS, BUSINESS-A PROFESSION at ix, 1-li (1914) [hereinafter Poole, Foreword]. 3. See ALPHEUS THOMAS MASON, BRANDEIS: A FREE MAN'S LIFE 77-95 (1946) [hereinafter MASON, FREE MAN'S LIFE]; ALPHEUS THOMAS MASON, BRANDEIS: LAWYER AND JUDGE IN THE MODERN STATE 14-39 (1933); PHILIPPA STRUM, Louis D. BRANDEIS: JUSTICE FOR THE PEOPLE 30-41 (1984) [hereinafter STRUM, JUSTICE FOR THE PEOPLE]; PHILIPPA STRUM, BRANDEIS: BEYOND PROGRESSIVISM 49-64 (1993) [hereinafter STRUM, BEYOND PROGRESSIVISM]; MELVIN I. UROFSKY, A MIND OF ONE PIECE: BRANDEIS AND AMERICAN REFORM 17-42 (1971) [hereinafter UROFSKY, A MIND OF ONE PIECE]. 4. Anotable example is DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY at xxiii, 169-74, 237-38 (1988) [hereinafter LUBAN, LAWYERS AND JUSTICE]. I discuss the treatment of Brandeis by lawyering scholars in greater detail in Part II, especially in the text accompanying notes 83-107. 1448 The Yale Law Journal [Vol. 105: 1445 of "edifying" literature. They invariably leave the reader with the message that, if she is a lawyer, she would do well to emulate Brandeis. The reasons for Brandeis's heroic stature, the building blocks of his reputation as "the people's lawyer," are familiar. As an attorney who was both fabulously successful and deeply committed to the public interest, he is a consoling reminder that one can "do good while doing well."6 He made a policy of refusing compensation for legal work that he thought raised "public" issues, a practice that speaks to our own sanctification of pro bono services. He is supposed to have scrutinized potential clients with a careful eye, refusing to handle cases in whose justness he did not believe and sternly commanding clients to refrain from taking manifestly antisocial positions in their legal disputes. During the Senate hearings on his nomination to the U.S. Supreme Court in 1916,' he faced fierce accusations that he had violated legal-ethical norms in his law practice, which is generally taken to mean that his ethical standards were superior, or at least visionary. He was the original "counsel for the situation," an appealing phrase whose provenance I will explore in some detail. His 1905 address "The Opportunity in the Law"-urging lawyers to stand "between the wealthy and the people, prepared to curb the excesses of either" 8-is cited or excerpted in virtually every introductory casebook on professional responsibility. 9 And, most significantly, a good deal of detail adorns the account of Brandeis's heroics. In general, we have little information about the dilemmas lawyers face in their day-to-day encounters with clients and others, and the way in which they navigate those dilemmas.'0 But, largely because the 1916 hearings aired many episodes in Brandeis's lawyering career, we may learn about his lawyering methods from fact rather than myth. 5. 1 use the term "edifying" in its sense of offering guidance for spiritual and moral improvement. See Richard A. Posner, Judicial Biography, 70 N.Y.U. L. REV. 502, 503 (1995). 6. See CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 16.8, at 946 (1986) [hereinafter WOLFRAM, MODERN LEGAL ETHICS]. 7. See Nomination of Louis D. Brandeis: Hearings on the Nomination of Louis D. Brandeis to be an Associate Justice of the Supreme Court of the United States Before the Subcomm. of the Senate Comm. on the Judiciary., 64th Cong., IstSess. (1916). These hearings may also be found in 1-3 ROY M. MERSKY & J. MYRON JACOBSTEIN, THE SUPREME COuRT OF THE UNITED STATES: HEARINGS AND REPORTS ON SUCCESSFUL AND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT JUSTICES BY THE SENATE JUDICIARY COMMITTEE, 1916-1975 (1977). Subsequent citations to the nomination hearings will be to the Mersky and Jacobstein compilation. 8. Louis D. Brandeis, The Opportunity in the Law, 39 AM. L. REv. 555, 559 (1905), reprinted in BRANDEIS, BUSINESS-A PROFESSION, supra note 2, at 329, 337 [hereinafter Brandeis, Opportunity in the Law]. 9. See infra note 85. 10. But see William L.E Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions,77 CORNELL L. REv. 1447 (1992); Austin Sarat & William L.F. Felstiner, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 YALE L.J. 1663 (1989); Robert L. Nelson, Ideology, Practice,and ProfessionalAutonomy: Social Values and Client Relationships in the Large Law Firm, 37 STAN. L. Rv. 503 (1985); Lucie E. White, Subordination, RhetoricalSurvival Skills, andSunday Shoes: Notes on the Hearingof Mrs. G., 38 BUFF. L. REv. 1 (1990) [hereinafter White, Sunday Shoes]. One might, in addition, draw upon personal memoirs and other sources to develop historical portraits of particular lawyer-client interactions. But, because of his fame and stature, episodes in Brandeis's law practice seem almost uniquely destined for parable. 1996] Elusive Advocate 1449 In this Article, I take a different view of Brandeis as lawyer. Most writers treating the subject have celebrated Brandeis's fierce independence from the constraining hand of powerful clients and his humanity in encouraging