Year: 1994

‘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.