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In September 1953, after the sudden death of Chief Justice Fred Vinson, Philip Elman waited at D.C.’s Union Station for his former boss, Justice Felix Frankfurter, to arrive from New England for the funeral. When Frankfurter emerged from the train, he was not in mourning but in “high spirits,” Elman recalls in a posthumous memoir released earlier this month. “Phil, this is the first solid piece of evidence I’ve ever had that there really is a God,” Frankfurter said enthusiastically, grabbing his former clerk’s arm. With Vinson, a likely vote against desegregation of public schools, gone — soon to be replaced by a more open-minded Earl Warren — Frankfurter was optimistic for the first time that the Supreme Court would convincingly renounce school desegregation in the then-pending case Brown v. Board of Education. Eight months later — 50 years ago today — Warren led a unanimous Court in finding “separate but equal” schools unconstitutional. Frankfurter was right that Vinson’s death paved the way for Brown, Elman says in the memoir. “Without God, the Court would have remained bitterly divided, fragmented, unable to decide the case forthrightly. The winning formula was God plus ‘all deliberate speed.’ God won Brown v. Board of Education, not Thurgood Marshall or any other lawyer.” That stark view of Brown, giving little credit to Marshall or to other NAACP Legal Defense Fund strategists, likely runs counter to the portrait being painted this month in dozens of 50th anniversary commemorations. But that is not the only reason Elman’s narrative has become controversial. What may seem at first to be the reminiscence of an obscure government lawyer turns out to be a provocative behind-the-scenes story. “Career public servants rarely get their due,” says Hofstra University School of Law professor Norman Silber, who conducted the interviews with Elman before Elman’s death in 1999 at age 81 and compiled and annotated them for the book. Ethical questions about Elman were raised when the Harvard Law Review first printed parts of the oral history in 1987, because Elman was not merely a Frankfurter friend and former clerk at the time of Brown; Elman was the attorney at the solicitor general’s office who wrote the government’s brief in the case. The fact that Elman talked often with a sitting justice about a case before the Court — and then spoke for publication about it — constitutes “poor judgment,” O’Melveny & Myers senior counselor William Coleman Jr. said recently. Coleman worked on Brown with Thurgood Marshall and was himself a Frankfurter clerk. “He did have a unique relationship with Felix Frankfurter, but it is clear that Frankfurter talked to a lot of people outside the Court,” says Silber. Elman also stands accused of self-aggrandizement. When he says that both God and the notion of “all deliberate speed” are responsible for the outcome in Brown, Elman is partly congratulating himself, because he is widely credited by historians with coining the concept, if not the phrase, “all deliberate speed.” Though he did not use those words in his briefs, Elman — with the prompting and aid of Frankfurter — advanced the idea as a way of convincing the Court that it could declare separate schools unconstitutional without requiring desegregation overnight, thereby averting a Southern revolt. Critics then and since have said “all deliberate speed” gave the South an excuse to delay implementation of Brown for years, if not decades. “Do I think Phil Elman was somewhat narcissistic about his role? Yes,” says Harvard Law School professor Randall Kennedy, a 1983 clerk to Marshall. “Do I think he is insufficiently sensitive and mindful of the lawyers, particularly the black lawyers who faced so much in bringing down Jim Crow? Yes.” But Kennedy also adds, “Have I mellowed about this? Yes.” Kennedy was far angrier in 1987, after parts of Elman’s oral history were published by Harvard. Kennedy wrote a response in the same publication, describing the memoir as a “classic example of the treachery of nostalgia.” He attacked Elman for having nothing good to say about Marshall or other black civil rights attorneys, and for criticizing the timing of the anti-segregation litigation. “They brought these cases at the wrong time, much too soon,” Elman says in the memoir, entitled “With All Deliberate Speed,” published by the University of Michigan Press. “The votes on the Supreme Court simply weren’t there. And they brought these cases in the wrong places � And they made the wrong arguments.” Kennedy faulted Elman’s analysis for its parochialism. “He views the situation wholly from the perspective of the justices. But in mapping a strategy the LDF attorneys had to balance competing interests.” Kennedy even implied that Elman was racially biased, noting that Elman had criticized only black lawyers involved in Brown. “Any legal historian who intends to use the Elman memoir responsibly must also consider the possibility that � his recollections reflect biases that tell us more about the observer than the events observed.” But Kennedy now credits Elman with quietly advancing the civil rights cause within the Justice Department. Indeed, Elman’s book suggests he had a central role not only in Brown but also in a series of other civil rights cases and in McCarthy era civil liberties cases as well. During the Court’s initial consideration of Brown while Vinson was chief justice, Elman got the word from Frankfurter that the Court was not ready to overrule Plessy v. Ferguson, the 1896 precedent that upheld separate but equal facilities. Sizing up the Court, Frankfurter urged that the case be set for reargument. “The cases are just sitting, Phil, nothing’s happening,” Frankfurter told him. The Court put the cases over, and also invited the administration of then-President Dwight Eisenhower to submit a brief. Elman had already written one during the first round of arguments — while Harry Truman was still president — offering the “all deliberate speed” concept. At first, administration officials wanted to decline the invitation, but Elman argued the invitation was “the equivalent of a royal command.” Soon he got the green light from Solicitor General J. Lee Rankin to draft the brief. In a later brief during the remedy phase of Brown, Elman said Eisenhower himself added several sentences, which Elman then edited. “I’m astonished at liberties that I, as a young lawyer in the solicitor general’s office, felt free to take with the language of the president of the United States,” Elman wrote. “Phil Elman’s story shows how much influence a career lawyer in the solicitor general’s office can have,” says Emory University historian David Garrow, who has read the full crop of Brown anniversary books recently published and finds Elman’s memoir one of the most interesting. “And it wonderfully captures the pre-1970 world, when clerks had a more intimate relationship with their justices — more so than now, when the justices have four each term.” Elman, who went to Harvard Law School when Frankfurter taught there, came to Washington in 1940 expecting to clerk for Justice Frank Murphy. But Murphy changed his mind and Elman went to work as Frankfurter’s only clerk, a challenging task. “A big chore with his writing was simply to chop up his sentences,” Elman says. “His brain outraced his tongue.” But after his year at the Court, Frankfurter regarded Elman, like the others, as “law clerk for life.” Of his contacts with Frankfurter while serving in the solicitor general’s office, Elman says, “When he was talking to me, he was talking to his law clerk, his intimate, his confidant. He wasn’t talking to an assistant to the solicitor general.” During oral arguments when Elman was in attendance, Frankfurter would often send him notes via a messenger, often in Yiddish and sometimes critiquing lawyers’ arguments — including those of Elman’s boss, the solicitor general. In 1961, Elman left the solicitor general’s office to become a member of the Federal Trade Commission, where he brought the same zeal to his work, aided at one point by Richard Posner, now the noted judge on the 7th U.S. Circuit Court of Appeals. When Kennedy’s article appeared criticizing Elman’s recollections, Elman was “hurt pretty deeply” by the criticism, says Silber. Elman expressed regret that he had revealed his conversations with Frankfurter, but the implication that Elman may have had racist motives was especially devastating. Says Silber: “The notion that he would be accused of racism after being involved with civil rights all his life — he felt his life was his answer to that charge.” Kennedy now says his 1987 article was “a pretty hard punch” that he now regrets. “When all is said and done, he was appalled by segregation too.” One reason Kennedy has softened his view is that he realized, after his angry article appeared, that he had known Elman growing up in Washington, D.C. When he was a child, Kennedy played tennis with Elman’s son Tony and went to his house in Bethesda, Md., more than once. “I had forgotten that,” says Kennedy. “If I had remembered, I might have written in a different tone.” He adds, “Phil Elman was on the right side of history.”

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