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That Man by Robert H. Jackson (Oxford University Press, 290 pages, $30) Tommy the Cork by David McKean (Steerforth Press, 386 pages, $25) Anyone contemplating the writing of a new biography of Franklin D. Roosevelt confronts the we-know-too-much problem. The vast quantity of FDR information that overwhelms the biographer is made up in part of the books by those who apotheosized FDR and those who hated him, including those who would rather call him “That Man” than repeat his name. Each FDR biographer commences with platitudes: the privileged childhood, the marriage to Eleanor, the infantile paralysis, the remarkable effort that led to the presidency, the Great Depression, and World War II. The biographer then surrounds these events with documentation, letters, personal views, trivia, and the comments of prominent historians all designed to implement the biases and prejudices of the narrator. Despite the shelves of FDR biographies, he remains elusive. Perhaps that is what he intended, given the false clues and props premeditatedly scattered around to obstruct and mislead the biographer. James Chase summarizes the present state of the character testimony this way: “Roosevelt was devious, imaginative, dishonest, charming, empirical, calculating.” Justice Robert Jackson and Thomas Corcoran are in a subset made up of FDR insiders whose testimony is based on personal observation. Jackson and Corcoran were alike and different — alike in that both were highly intelligent, ambitious lawyers who tied their careers to the Roosevelt connection. Different in the way they exploited or were exploited by that connection. First, the Jackson memoir. John Q. Barrett, a St. John’s University Law School professor who is writing what is likely to be the definitive Jackson biography, came across Justice Jackson’s unpublished memoir of his Roosevelt days. Professor Barrett gives us the memoir with some helpful editing and a recitation of the circumstances under which Jackson prepared his comments. Jackson went straight from high school to the Albany Law School. After graduation, he joined the New York Bar. During the next 20 years, he became one of Jamestown, N.Y.’s leading lawyers and a major force in the bar and in the politics of western New York. He met Franklin Roosevelt when FDR was a freshman state senator representing Dutchess County. They formed a friendship. Franklin Roosevelt’s career went from success to success, and as it did, he moved Jackson into his inner circle and into a series of increasingly significant legal government posts. Jackson went from general counsel of the Treasury’s Tax Division to the Securities and Exchange Commission and eventually to the Office of the Solicitor General of the United States. In that role, he defended New Deal legislation before the Supreme Court. In 1940, FDR appointed Jackson attorney general, and in 1941, he nominated Jackson to serve as an associate justice of the Supreme Court of the United States. On the Court, Jackson established a reputation as a brilliant but independent and hard-to-categorize jurist. He continued to be FDR’s friend and informal adviser until Roosevelt’s death in April 1945. President Harry Truman appointed Jackson as a lead prosecutor in the trial of the Nazi war criminals. Thereafter, Jackson returned to the Supreme Court and served with distinction as an associate justice for eight more years. During the course of his relationship with FDR, Jackson carefully preserved his dignity and identification as a lawyer. As we shall see, Thomas Corcoran, to his disadvantage, did not do this. Justice Jackson, in his final years, began his FDR memoir. The chapter most interesting for lawyers is Jackson’s evaluation of FDR as a lawyer. FDR had graduated from Columbia Law School. He tried practicing law awhile but did not like it. Jackson got the impression that FDR didn’t like the drudgery and detail that the law required. He resented the slow pace of the judicial process. When Jackson was attorney general, FDR kept pushing things over to the Department of Justice that Jackson believed did not belong there. He did not want the Justice Department to itself become a litigant in the matters FDR sent over. “It seemed to me that the value of legal counsel is in the detachment of the advisor from the advised, and that if we put these departments under the administration of the Department of Justice, it immediately would lose its detachment and have no detached advisors. It would itself become a litigant defending its own acts, and the unhappy result would be that the attorney general would lose his standing for disinterestedness before the courts.” The president laughed off these objections as being theoretical. FDR liked wiretaps. It seems all presidents do. When the Supreme Court decided that federal law enforcement officers could not legally tap wires, the president said he could not believe that the Supreme Court meant that enemies of this country were entitled to use the communication system and not be detected. FDR, in Jackson’s opinion, was not a strong champion of so-called civil rights. The president sent a memorandum to Jackson in which he said that he agreed with the broad purpose of the Supreme Court’s decision relating to wiretapping and in general it was sound as wiretapping might lead to civil rights abuses. Nevertheless the president was convinced that the Supreme Court never intended to apply the rule to matters of national defense. Based on the president’s directive to Jackson, wiretaps were conducted. The president had a tendency to think in terms of right and wrong, instead of terms of legal and illegal. FDR thought that his motives were always good for the things he wanted to do and he found difficulty in thinking that there could be legal limitations. “The president was not a legalistic-minded person. He was not an economic-minded person. He was a strong thinker in terms of right and wrong, for which he frequently went back to quotations from the Scriptures. Certain things just were not right in his view.” The president and Jackson never had a falling out. In this regard, Jackson was different from some others in the inner circle who were dropped unceremoniously. Now Thomas Corcoran. He commenced as a youthful protégé, gifted as a student, as an athlete, and as a musician. He was endowed with that priceless social gift of playing by ear on the piano or accordion any song he had heard. He attended Brown University, where his accomplishments included starring on the football team and his election as class valedictorian. At Harvard Law School, his academic standing brought him to the attention of professor Felix Frankfurter who at the time was Justice Oliver Wendell Holmes Jr.’s law clerk talent scout. He placed Corcoran with Holmes for a year’s clerkship. Corcoran remained a lifetime friend of Holmes. After the clerkship, Corcoran turned to Frankfurter for advice as to what to do next. Frankfurter directed Corcoran to a prominent New York law firm. Corcoran did well in the law practice. He also did well playing the stock market. Before the crash, he had a stake of a million dollars, which promptly disappeared in 1929. When Corcoran decided to leave New York, Frankfurter encouraged him to find a spot in Washington. It was likely Herbert Hoover, tied to the depression as he was, would lose to Franklin Roosevelt. Corcoran through a connection with his New York law firm found a job with the Reconstruction Finance Agency (RFA). That is where he would spend the best days of his life as a sort of undercover agent on assignment to FDR.. FDR was elected president, and Frankfurter teamed Corcoran up with Ben Cohen another of Frankfurter’s legal protégés. These two, working together in their out of the way RFA office, drafted much of the New Deal legislation, including the SEC statutes. Roosevelt was impressed with Corcoran’s energy, versatility, and brashness and his willingness to take on a range of assignments to keep the New Deal going. He was called in to assist the writing of FDR’s speeches, and in 1935, FDR asked help with a speech carrying the theme of “serenity and service.” Roosevelt delivered the speech in Philadelphia before 100,000 people. The words that would be most remembered were Tommy Corcoran’s. As David McKean describes it, “gripping the podium, the president intoned in his stentorian voice: ‘there is a mysterious cycle in human events to some generations much is given. Other generations much is expected. This generation has a rendezvous with destiny.’ It was a phrase meant to inspire and the crowd reacted with sustained applause. For Corcoran, who was sitting in the audience it was an important lesson on not only how powerful a speech could be if delivered by the right messenger, but also how influential a speechwriter could be in shaping the message.” As Corcoran’s star rose he probably could have obtained a highly visible legal position, as Jackson did, if he had chosen to do so. He did not so choose. There is a tide in the affairs of men, Which taken at the flood leads on to fortune; Omitted, all the voyage of their life Is bound in shallows and in miseries. Corcoran decided to continue as part court jester (playing his accordion) and doing some legal work, but mostly acting as FDR’s political operative. In 1939, FDR placed Frankfurter on the Supreme Court. Corcoran was one of Frankfurter ‘s lobbyists. It was about this time that Corcoran saw things moving against him. He noticed his relationship with FDR was not what it had been. Others were moving into the inner circle. For instance, in the late fall of 1938, FDR brought Harry Hopkins forward as secretary of commerce, and Hopkins actually took up residence in the White House itself. In 1940, FDR decided it was too dangerous to keep Corcoran around as what the press called FDR’s minister without portfolio. Finally, in 1941, Corcoran officially informed the president he was leaving the government to begin practicing law. After he had been in private practice for less than six months (and doing very well) he became nostalgic for a return to the excitement of government service. He started up a campaign to get himself appointed as solicitor general and perhaps follow Justice Jackson to the Supreme Court. He met with FDR concerning the appointment. FDR was noncommittal. Corcoran then turned to his original sponsor Frankfurter, now Justice Frankfurter, who refused to give his support. Frankfurter felt that Corcoran had been a political operative for too long. He was no longer fitted for the reading of cases, writing briefs, and preparing for complicated arguments. In the years that followed, Corcoran conducted a quasi-law practice devoted mainly to lobbying his government connections on behalf of powerful business interests. Author McKean describes in detail Corcoran’s lobbying activities and the ones that raise ethical issues. John Kenneth Galbraith, in 1977, in a spirit of irony, commented on the pattern of high officeholders who leave a Democratic administration. After righteously hounding the economic predators while in office, “condemning their ill-gotten gains and being condemned in turn, rush indecently when released to get a share of those gains. They join the big Washington law firms and maintain an unconvincing pretense that because a criminal is entitled to counsel, so the corporate proponent of pollution, lung cancer and tax avoidance is entitled to the most expert possible suborning of legislators and public officials.” The Republican pattern is different. When in office, they do what they can to help their plutocratic constituents. When out of office, they reappear as writers who publish autobiographies and novels, describing their misdeeds in office. Galbraith speculated that the Democrats may do more injury to the public interest than the Republican writers do to the republic of letters even taking into consideration former Vice President Spiro Agnew’s memoir of his days in office before his forced retirement. Galbraith puts it too strongly, but he has a point. McKean notes that Corcoran put together a memoir. It has never been published. Jacob A. Stein is a founding partner of Stein, Mitchell & Mezines. He is past president of the D.C. Bar and of the Bar Association of the District of Columbia. His books include Legal Spectator & More.

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