Category: Legal Biographies

John A. Farrell’s ‘Clarence Darrow: Attorney for the Damned’ is a new biography of the legendary American defense attorney who defended union organizers, despised minorities and those accused of sensational crimes

Clarence Darrow: Attorney for the Damned’

by John A. Farrell

Random House, 561 pp., $32.50

America has long adored winning trial lawyers, and none more than Clarence Darrow. Born in 1857, he resigned from a promising career as a corporate lawyer to represent union organizers, despised minorities and those accused of sensational crimes. And he was devastatingly effective, winning most of his nearly 2,000 trials almost regardless of the circumstances, the defendants or the actual evidence.

In “Clarence Darrow: Attorney For The Damned,” John A. Farrell adds to a growing body of Darrow biographies. Farrell, a Boston Globe editor, draws from previously unpublished correspondence to give fresh insight into Darrow’s remarkable career.

Darrow cared little about consistency, political agendas or larger issues. For Darrow, mercy (and a quick acquittal) was the only thing that mattered. It is, of course, a handy attitude for a criminal defense lawyer.

He represented Thomas Kidd, an organizer put on trial in Wisconsin for leading a conspiracy to destroy the Paine Lumber Company by helping to organize a strike of its employees. Those workers earned 45 cents a day working under guard in locked facilities. The case was watched nationally as an early test of the right to organize – Darrow won and became labor’s leading trial lawyer. He also won acquittal for Big Bill Haywood, the secretary for the mine workers, accused of murdering the Governor of Idaho. He represented Eugene Debs, the Socialist, and hundreds of other social outcasts.

Darrow was no businessman and would have fared poorly in today’s big-business orientation of most law firms. He worked for free in over a third of his cases. But the common theme of most of his cases was the defense of individual liberty against the gathering force of industrialization and government intrusion.

In his most famous case, Darrow defended John Scopes, who was charged with teaching evolution in defiance of a Tennessee state law prohibiting such a science-based approach to education. Darrow saw the case as protecting education from “religious fanaticism.” His dramatic confrontation with William Jennings Bryan, who represented the State of Tennessee, was spellbinding and years later won Spencer Tracy an Oscar nomination for his portrayal of Darrow in a movie about the trial, “Inherit the Wind.”

Darrow took pains to polish his own image. He was remarkably successful at it. Farrell’s book all but gushes over in admiration for the great orator, but Darrow was hardly flawless, and would have fared poorly in today’s media-saturated world. He was unfaithful to a remarkable degree, ultimately divorcing his wife and remarrying, all the while sleeping with innumerable women across the country.

He was indicted and stood trial twice for attempting to bribe a jury, ultimately resulting in a hung jury and an unshakable taint of guilt he could never shake. He was long-winded in an era when long speeches were the norm. He often took several days to pick a jury, and even longer to present his closing argument. In most modern trials, jury selection consumes a morning and trial judges frequently limit closing argument to an hour or two. Darrow could barely have introduced himself in that time. A modern jury would likely fall asleep before he got to the point.

Farrell provides a thoughtful overview of Darrow, his life and his many accomplishments. It’s no small task with a subject so large and encrusted with such idol worship. But only when Darrow’s quite human failings are exposed can history appreciate his enormous gift to the American legal tradition.

Melvin I. Urofsky’s biography of Supreme Court Justice Louis D. Brandeis shows that the progressive judge had an impact on American law that few justices have since matched.

‘Louis D. Brandeis: A Life’

by Melvin I. Urofsky

Pantheon, 976 pp., $40

Few U.S. Supreme Court justices can compare to Justice Louis Brandeis. As a lawyer, he battled some of the biggest corporate interests of his day, not only earning their respect (and business) but creating the very idea of “public interest” lawyers. He was a key leader of the early Zionist movement. Most significantly, he served as a transformative progressive who turned the Supreme Court from a focus on property rights toward privacy and liberty.

In a towering new biography, Melvin Urofsky, a history professor from the Virginia Commonwealth University, catalogs a life of monumental achievement. From a small office in Boston in the late 1800s, Brandeis challenged large railroads seeking to raise rates, banks strangling small-business owners, and other large-scale enterprises that used their power to extract ever-increasing profits. He quickly earned a reputation not only for his legal brilliance, but for embarrassing corporate officials in cross-examination by demonstrating a greater mastery of relevant corporate records than the officials themselves could muster.

Indeed, his style was defined by a relentless focus on the facts. At a time when most legal briefs contained dry discussion of abstract legal principles, he insisted on packing his “Brandeis briefs” (and later opinions) with social science research, believing that understanding the larger factual context was crucial. His approach is now commonplace.

Brandeis was nominated to the court by President Woodrow Wilson in January 1916, its first Jewish member. He endured a six-month confirmation battle, with progressives standing off against conservatives looking to settle scores (and with a big dose of barely-concealed anti-Semitism). The Los Angeles Times editorialized that the nomination was “enough to make cold chills run down the spine of every patriot of the nation,” demonstrating that Glenn Beck-style irrational rhetoric is hardly new.

After confirmation, he joined a conservative court. As Urofsky recounts, those who opposed him well understood that he would arrive with “a new outlook and different experience from the old-school justices, and if his ideas prevailed, they would topple the old bastion of property-oriented classical thought.”

That is, in fact, precisely what happened. Brandeis joined forces with his friend Oliver Wendell-Holmes, and together the “great dissenters” staked out positions in defense of privacy, liberty and free speech. Understanding that the law must evolve to adapt to a changing world, he rejected any attempt to fix the Constitution’s meaning as unchangeable. He would have been no fan of current Justice Antonin Scalia’s wooden “original intent” theory of constitutional interpretation.

Brandeis retired from the court in 1939, replaced by William O. Douglas, and died on Oct. 5, 1941, but not before seeing many of his dissenting opinions adopted by the Supreme Court as the law. Brandeis, like Oliver Wendell Holmes, John Marshall and perhaps a handful of others had a profound impact on American law, a standard that few justices – and none of those currently serving – have come close to meeting. Ironically, he was modest almost to a fault, even refusing offices in the ostentatious new Supreme Court building (which he called the “Temple of Karnak”) when it opened.

In Urofsky, Brandeis finds his match. Urofsky writes beautifully, pivoting between the justice’s private life, legal philosophy, and political and Zionist activism. Running more than 900 pages, including footnotes, this book is no small undertaking, but a rare treat for legal-history fans and worth every page.

In ‘Justice: What’s the Right Thing to Do?’ Harvard professor/author Michael J. Sandel provides philosophical tools for hacking through thickets of modern moral dilemmas. Sandel discusses his book Thursday at Town Hall Seattle.

‘Justice: What’s the Right Thing to Do?’

by Michael J. Sandel

Farrar, Straus and Giroux, 308 pp., $25

Imagine that you are the driver of an out-of-control trolley hurtling at 60 miles per hour down the tracks toward a group of five workers who cannot get out of the way. You notice a side track onto which you can divert the trolley, which would save the lives of those standing on the tracks.

Unfortunately, though, if diverted onto the side track, the trolley will just as certainly kill a lone worker standing on the sidetracks and he will die solely on account of your actions. Should you turn the trolley? Is that a moral choice even though it certainly means that, through your actions, you will have directly caused the death of the individual on the side track?

What if the situation was slightly different? What if instead of turning the trolley, you could save the group of five, but only by pushing an extraordinarily overweight individual off a bridge and into the path of the trolley to stop it. Still moral to act?

Harvard Professor Michael Sandel explores these famous “trolley problems” and a vast catalog of similar moral dilemmas in his new book, “Justice: What’s The Right Thing To Do?” Sandel, whose moral-philosophy course is one of the most popular undergraduate courses at Harvard, is a master at using modern-day news to highlight different approaches to justice.

Using examples drawn from recent experience, Sandel explores a variety of approaches to theories of justice. Sandel reviews the cold calculation of Jeremy Bentham’s utilitarianism (which asks which course of action will lead to the greatest happiness for the greatest number of people), to John Stuart Mill’s more humane but more abstract approach to utilitarianism, with examples ranging from throwing Christians to the lions in Rome (hard on the Christian but served as entertainment for thousands and so arguably justifiable to utilitarians) to exploring the morality of torture in ticking-bomb scenarios (our former vice president will find this discussion of particular interest).

From the sale of kidneys to surrogate mothers, the problems flow from his pen like a numbing catalog of trouble. Taking this justice stuff seriously is hard work with tough choices: Best to trade that latte for a stiff drink if you are working your way through this curriculum.

Sandel explores the moral philosophy of Immanuel Kant (who explored the concept of duty as defining morality), John Rawls (who argued for a system of morality flowing from equality), and even Aristotle.

But the ultimate aim here, appropriate to any college survey course, is to leave the reader with a range of different perspectives through which to view the world and the moral choices that we make.

Sandel is at his best in weaving modern-day problems into convincing applications of competing theories of justice. He loses his footing, though, when he detours into the jargon of moral philosophy, at times testing a reader’s patience (at least those not compelled to take notes or face end-of-semester consequences).

But he concludes with a flourish: “A just society can’t be achieved simply by maximizing utility or by securing freedom of choice. To achieve a just society we have to reason together about the meaning of the good life, and to create a public culture hospitable to disagreements that will inevitably arise.” Quoting Robert F. Kennedy and President Obama, he argues that this approach to moral philosophy can and should have a real impact on our common good.

For those seeking a short course through moral philosophy from a witty writer, fast on his feet, and nimble with his pen, this thin volume is difficult to beat.

Still, in the meantime, best to stay off the trolley tracks entirely.

‘Friends in High Places: The Rise and Fall of Clark Clifford’

by Douglas Frantz and David McKean Little, Brown, $24.95

Few people can come close to matching the towering resume of Clark Clifford, who since the 1940s has served as a close political adviser to Democratic presidents, from Harry Truman through Jimmy Carter.

Throughout decades of power and influence, Clifford actually served in the government for only a few years: first as counsel to President Truman and later as secretary of defense under President Lyndon Johnson. Mostly, Clifford worked as a private lawyer, where his reputation as the consummate insider attracted many of the largest corporations and most powerful individuals in America – Howard Hughes, the DuPont family, AT&T and Phillips Petroleum all retained Clifford to solve their Washington problems.

In large part, Clark Clifford defined the modern lawyer-lobbyist, practicing in a twilight between public service and private obligation, between politics and law. A striking example was his connection with Supreme Court Justice William O. Douglas – Clifford loaned him money, paid his mortgage, even his daily bills while the justice vacationed at Goose Prairie, near Mount Rainier.

However, neither man revealed this when Clifford appeared before the Supreme Court on behalf of his well-heeled clients. Republicans trying to remove Douglas from the court failed to uncover the Clifford connection, a relationship that would have doomed the justice’s career.

Douglas Frantz and David McKean’s “Friends in High Places: The Rise and Fall of Clark Clifford,” attempts to capture this phenomenal career; it succeeds as a summary of Clifford’s life, a biography lite. Its greatest value is its last 100 pages, which detail Clifford’s involvement with the infamous Bank of Commerce and Credit International, which ultimately led to his indictment and fall from grace.

Here, the authors offer expertise and depth: Frantz is an investigative reporter for The New York Times; McKean was an investigator in the BCCI scandal. Together they coherently describe Clifford’s amiable stumble into a hornet’s nest of international intrigue. He eventually escaped criminal charges, but significantly damaged his reputation. As he himself put it, the scandal left him with the “choice of either seeming stupid or venal.”

Clifford’s own autobiography, “Counsel to the President,” remains a better guide to the man’s remarkable life – but he relegates the BCCI affair to a single footnote.

Want the complete story? Read the autobiography, then the last 100 pages of “Friends in High Places.” Or wait until someone puts this fascinating individual in perspective in a single, complete biography.

‘Hugo Black: A Biography’

by Roger K. Newman

Pantheon/Cornelia & Michael Bessie, $35

Talk about a confirmation problem. While Clarence Thomas had to worry about sexual harassment and Robert Bork had to explain his radical conservatism, Hugo Black, nominated to the Supreme Court by President Franklin Roosevelt, was burdened with the mother of all confirmation worries: membership in the Ku Klux Klan.

But it was 1937, and confirmation hearings weren’t what they are today. Ironically, if current standards had been applied, America would have lost one of its greatest justices, and the Warren Court might never have achieved its legacy of individual rights and liberty – due in part to the contributions of Justice Hugo Black.

With a life this colorful and significant, it is astonishing that no serious biography of the one-time Alabama senator has been written before now. Legal scholar Roger K. Newman finally fills that gap, providing a long-overdue profile of this enigmatic justice.

EARLY TRIAL WATCHER

Hugo LaFayette Black was born in rural Alabama in 1886. His father ran a general store near the county courthouse, where young Hugo sat mesmerized through virtually every trial. This early exposure served him well, first as a law student at the University of Alabama, then as a county prosecutor, judge and trial lawyer.

Then, in 1923 – three years before he was elected to the U.S. Senate – Black joined the Ku Klux Klan. The organization was at its peak; the initiation ceremony for him and others was attended by 25,000 people. Black later claimed he only “went to a couple of meetings and spoke about liberty.” Newman, however, documents extensive involvement with the Klan and its reciprocal support for his Senate campaign.

Once elected, Black enthusiastically embraced the New Deal, and the Supreme Court nomination was his reward. Despite persistent KKK rumors, the Senate confirmed him, with one senator dryly remarking, “Hugo won’t have to buy a new robe; he can have his white one dyed black.”

Later, when an enterprising journalist uncovered Black’s Klan involvement, the nation erupted, and Black was able to put the issue to rest only after a dramatic nationwide radio broadcast.

STAUNCHLY DEFENDED CIVIL RIGHTS

Ironically, on the High Court and in the Senate, Black rejected Klan principles that had helped him gain power. He became the court’s most ardent defender of individual liberty. Indeed, decades later his son introduced him at a bar-association gathering by saying, “Hugo Black used to wear white robes and frighten black people. Now he wears black robes and frightens white people.”

Black believed that most constitutional provisions were absolute. The First Amendment, he liked to emphasize, says “Congress shall make no law,” not “some laws” abridging freedom of speech. “Being a rather backward country fellow,” he explained, “I understand it to mean what the words say.”

By his death in 1971, Black had seen many of his ringing dissents from earlier, conservative rulings become law during the more liberal Warren Court of the 1960s. Just weeks before he died, his concurring opinion in the Pentagon Papers case – he rejected the Nixon administration’s attempt to halt their publication – capped a career devoted to protecting First Amendment freedoms.

This is a compelling survey of a kaleidoscopic career, but it’s only half complete. While Newman comprehensively portrays Black’s life work, he almost completely avoids any discussion of his personal life, his troubled wife, or his daughters. His family moves through the book like shadows, ill-defined and unexplained.

Newman’s efforts are nonetheless a good first step toward understanding Hugo Black. It’s just a shame it isn’t more.

‘The Agenda: Inside the Clinton White House’

By Bob Woodward

Simon and Schuster; $24

To hear Bob Woodward tell it, President Clinton’s first months in the White House were chaotic, disorganized and filled with tension between his economic advisers pushing deficit reduction and his former campaign staff pushing candidate Clinton’s social agenda on welfare reform, health care and public investments. Woodward, the assistant managing editor of The Washington Post, is the author of “The Agenda: Inside the Clinton White House,” his “inside” review of the first 18 months of the Clinton presidency.

Woodward reports that the president often exploded in anger at his staff for confused or poor-quality work and that Hillary Rodham Clinton bitterly criticized the White House staff for forcing Clinton to become “Mechanic in Chief.” According to Woodward, the first lady railed at the staff that she spent more time picking a family movie than they spent considering strategy.

The book is based on a series of “deep background” interviews with virtually all of the significant officials at the White House, including Clinton himself. Woodward’s introduction defensively notes that it is not intended to serve as a definitive history. That’s good. It’s not. Woodward instead aims to fill that gap between daily news reporting and, later, more scholarly efforts at history. But Woodward falls short of even that limited goal.

The book is filled with direct quotations or descriptions of what one or another of the players saw or thought during the events under discussion – remarkably similar in style to the pseudo-fictional biography of Sen. Ted Kennedy, “The Last Brother,” released (and widely panned) last year by Joe McGinniss. The difference, Woodward insists, is that his material comes directly from interviews with the participants – pure hearsay rather than pure fiction. He attempts a preemptive strike against criticism by pompously declaring that his notes and tapes will be deposited with Yale University, to be opened in 40 years.

The book focuses almost exclusively on the behind-the-scenes wheeling and dealing to pass the administration’s budget. From presidential promises and cajoling, to outright shouting matches between the president and reluctant Democrats, Woodward purports to deliver the inside story.

But this “review” of the first 18 months is absurdly incomplete. Woodward barely even mentions some of the most critical events – both positive and negative – of the first 18 months. NAFTA, the Family Leave Act, Whitewater, the Lani Guanier fiasco, the withdrawn nomination of Zoe Baird as attorney general, gays in the military, the appointment of Justice Ruth Bader Ginsburg, and virtually every aspect of foreign policy all get short shrift.

Even on the budget process itself, the book is remarkably uneven and choppy. Presidential adviser George Stephanopolous, for example, was plainly a favorite source. Many key events are recounted from his view, to the exclusion of others’. Woodward’s newspaper-style chapters lurch from one participant to the next, describing what are often mundane or unremarkable meetings. The book, indeed, often has the feel of a rough cut-and-paste from a few dozen separate interviews.

The book, to paraphrase Sidney Blumenthal, is all overture and no opera. Is it really remarkable that the first Democratic administration in 12 years was disorganized when it took over? Or that a president can be angered by sloppy staff work? Woodward, for all his tsk-tsking, fails even to give credit where credit is due: Clinton did forge a majority and pass a budget for the first time in years. And NAFTA. And the Family Leave Act. Maybe the legislative process was messy – all arm-twisting, anguished compromise, and shouting. But that’s not news; that how legislation gets passed.

‘Learned Hand: The Man and the Judge’

by Gerald Gunther Knopf, $35

As President Clinton ponders a replacement for retiring Supreme Court Justice Harry Blackmun, one can only hope he finds someone of the caliber of Judge Learned Hand, no matter which clamoring constituency he tries to satisfy.

When asked to name the greatest living American jurist among his colleagues on the high court, no less an authority than Justice Benjamin Cardozo said, “The greatest living American jurist isn’t on the Supreme Court.” He was referring to Learned Hand, who served more than 50 years on the federal bench in New York, indelibly altered American law, and was widely acclaimed a “judicial giant.”

A perfect candidate for the Supreme Court – Hand was frequently called “the 10th justice” – he never made it. He was passed over twice, once by Hoover and once by Franklin Roosevelt, but he nevertheless became one of the most profoundly influential jurists in American history.

Arresting portrait

Stanford law professor Gerald Gunther, a leading constitutional scholar and one of Hand’s former law clerks, devoted two decades to writing this new and arresting portrait of Hand’s life and work. The effort shows. “Learned Hand: The Man and the Judge” is a dazzling monument to the man himself and a staggering review of half a century of fundamental change in American law and politics.

Also, Gunther’s lively narrative successfully skirts the twin

dangers of excessive legalism and uncritical idolatry: This is an unflinching examination of an agonized, thoughtful, and extraordinary life.

Hand, who was appointed to the federal bench by President Taft in 1909 and elevated to the U.S. Court of Appeals for the Second Circuit 15 years later by President Coolidge, served throughout the “golden age” of American jurisprudence. A close associate of Supreme Court Justices Holmes, Brandeis, and Frankfurter, Hand bridled at the conservative higher court’s repeated rejection of progressive social legislation by broadly interpreting the ambiguous due-process clause of the constitution.

Hand rejected the view that such “judicial activism” could safeguard freedom: “Believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”

Ironically, Hand’s philosophy of “judicial restraint” made him a prominent liberal in the pre-New Deal era, but it put him in conflict with liberals after the New Deal. Nonetheless, Hand held fast to his view through dramatic shifts in the prevailing political and legal winds until his death in 1961 at age 89.

Reveals human side

Gunther’s biography also reveals the human side of the jurist. Billings Learned Hand was born in 1872 in Albany, N.Y., into a family of lawyers and judges. Though his father died when young Learned was only 14, he followed family footsteps to both Harvard College and Harvard Law School. The emotional scars received there by his failure to gain admission to the most exclusive clubs were to haunt him the rest of his life.

In 1902, Hand married Frances Fincke, an independent-minded woman, and they had three daughters. Yet theirs became an odd marriage. Gunther delicately treats Frances’ relationship with Louis Dow, a close friend who often visited when the judge was away – he would sit in Hand’s place at the head of the table – and accompanied Frances on long European vacations. It was only after Dow’s death in 1944 that the Hands again grew as close as in their early years.

Hand’s love of poetry and song appears throughout. Gunther describes a law clerk’s disappointed retreat after failing to convince Hand on a point of law, only to be startled by the judge coming through the door, dancing a jig and singing at the top of his voice, “You’re mad at me! You’re mad at me!”

In contrast, lawyers appearing before the judge rarely fared as well. An imposing figure with large bushy eyebrows, Hand dominated the bench, once even causing a law student to faint during a practice argument.

But Hand was at his best in his extensive judicial writings, speeches, and vast private correspondence with the leading legal and political figures of his era. Gunther, too, excels at culling the best from this fascinating historical record.

Speaking at a graduation ceremony during the Roaring ’20s, Hand stirred controversy by appearing to encourage youthful rebellion: “Our dangers . . . are not from the outrageous but from the conforming; not from those who . . . shock us with unaccustomed conduct, but from those . . . who take their virtues and their tastes, like their shirts and their furniture, from the limited patterns which the market offers.”

A skeptic, above all else

While he spoke out against McCarthyism in the 1950s, Hand was, above all else, a skeptic who was “never too sure he was right” and greatly valued the ability to understand the weakness of one’s own position. Liberty, he wrote, “is secure only (in) that sense of fair play, of give and take, of the uncertainty of human hypotheses, of how changeable and passing are our surest convictions.”

Hand always insisted that he was never disappointed by his failure to be elevated to the Supreme Court. Yet his private correspondence with his wife tells a different tale – a point that Gunther admits startled him to discover. But even from the court of appeals, Learned Hand set a standard so high that few, on or off the Supreme Court, can come close to matching his influence.

By anyone’s reckoning, Learned Hand has a place among the small handful of judges – including Holmes, Brandeis, and Cardozo – who can rightfully be ranked as the truly great American jurists of the century. Gunther’s superb and heartfelt biography is an outstanding tribute to a towering figure in American law.

‘The Man to See: Edward Bennett Williams’

by Evan Thomas

Simon & Schuster, $27.50

Edward Bennett Williams, one of the best known trial lawyers of our time, characterized the ideal client as “a rich man who is scared.” Williams had plenty of them: mafia don Frank Costello, former Treasury Secretary and Texas governor John Connally, President Lyndon Johnson, Jimmy Hoffa and the Teamsters Union, the Washington Post – even junk-bond king Michael Milken.

Williams recognized that taking every case to trial was not necessarily the best defense: “Nothing is often a good thing to do and always a brilliant thing to say.” Whether by delaying, cajoling, bargaining, or simply wearing down the prosecution, Williams often got his clients off without even entering the courtroom.

This new biography of Williams, by Newsweek’s Washington Bureau chief Evan Thomas, covers his life and times thoroughly and is a pleasure to read. It is packed with stories of Williams’ notorious trials and lively wheeling and dealing, both in and out of the courtroom, as well as his later fame as owner of the Washington Redskins and Baltimore Orioles. Thomas carefully notes the inconsistencies in Williams’ positions and carefully points out the flaws in the man that many consider the ultimate trial lawyer.

Brendan Sullivan, Williams’ protege, once indignantly defended his right to object in the Senate hearing investigating his client, Oliver North, by declaring, “I am not a potted plant.” It’s a claim Edward Bennett Williams never needed to make.