By Gerald Gunther, Oxford University Press, 704 pages, $95
This new edition of a work first published in 1994 acquaints, or reacquaints, readers with a giant of our jurisprudential history, Judge Learned Hand (1872-1961), who served more than 50 years on the federal bench, many of them as chief judge of the U.S. Court of Appeals for the Second Circuit.
Gerald Gunther (1927-2002), a refugee from Nazi Germany who once clerked for Judge Hand, was professor of law successively at Columbia and Stanford. In addition to “Learned Hand: The Man and the Judge,” Gunther’s claim to fame rests on a casebook on constitutional law that became a standard text.
In an extensive, illuminating foreword to this edition, Justice Ruth Bader Ginsburg commends Gunther, her former teacher, for depicting his subject as “an icon who was also a very mortal man.” The book lives up to her characterization. The reader gets to know, again in Ginsburg’s words, “the public and private Hand.”
Thus the author devotes a 59-page first chapter to a chronicle of Hand’s family background, his boyhood, youth and young manhood in Albany and at Harvard College and Law School. This helps the reader understand attributes that remained with Hand, on and off the bench, all his life. They include his ferocious ambition, his insistence on the mastery of detail, his self-doubts, his skepticism, his indecisiveness and a persistent feeling of being an “outsider.”
Similarly, Gunther recounts the circumstances of his subject’s marriage, an enduring, largely happy but not perfect union. It, too, played a part in Hand’s professional as well as personal life. It gave, for example, a young lawyer the courage to “escape” in 1902 to New York City from Albany, a locale that he had found dull and unpromising. But for this move, we should likely not be reading about Hand today.
The couple’s courtship, incidentally, provides fascinating insight into the customs and standards of the time. Hand, whose real first name was Billings, met and fell for Frances Fincke, an independent-minded graduate of Bryn Mawr College, in July 1901. Months of thinking it over elapsed before he popped the question. The two exchanged their first kiss when, after a year’s deliberation on her part, Frances finally said yes. As Marcus Tullius Cicero put it, “The times change, and we change with them.”
Seven years of unspectacular practice in downtown Manhattan followed. Hand was nominated in 1909 by President William Howard Taft to the U.S. District Court for the Southern District. There he began making a name for himself.
In 1917, District Judge Hand enjoined a postmaster from banning a radical journal from the mails pursuant to the newly enacted Espionage Act. The rule that he enunciated for the suppression of freedom of expression was stricter than the “clear and present danger” standard that Oliver Wendell Holmes was to pronounce two years later. Hand’s decision was reversed on appeal, but the author points out that his criterion eventually came to prevail.
As a district judge, Hand felt free to participate in party politics, a stand that he reconsidered in later years. He helped Theodore Roosevelt’s campaign for the Republican presidential nomination in 1912. That effort having failed, he took part in Roosevelt’s campaign as the Progressive (“Bull Moose”) candidate later the same year. In 1913, Hand, still on the federal bench, appeared as the unsuccessful Progressive candidate for chief judge of the New York Court of Appeals.
In 1924, Hand ascended to the Second Circuit, this time on the nomination of President Calvin Coolidge. Here, as most Law Journal readers know, he gained a renown that matured into immortality. The court at that time had four members who, as now, sat in panels of three.
At first, Hand sat usually with his cousin Augustus and Thomas W. Swan. The trio composed “the core of what for decades would be recognized as the strongest appellate court in the United States.” (The fourth judge, Martin T. Manton, won a reputation for mediocrity and left the bench in disgrace with a conviction for bribery in 1939).
The author devotes most of the book to his subject’s career on the Second Circuit. Hand remained there until his death at age 89 in 1961. (He took senior status in 1954 but remained active.)
In his usual exhaustive detail, Gunther not only explains the substance of Hand’s many landmark decisions in several areas of the law but also tells of the process that he and his colleagues reached in arriving at and promulgating those decisions.
Time and again Hand’s name came up as a candidate for promotion to the U.S. Supreme Court. To Hand’s own and many others’ disappointment, nothing ever came of it. To the politicians who have to do with the appointment and promotion of federal judges, merit is not the only consideration.
Learned Hand is usually thought of as a liberal judge. His persistent independence of thought casts doubt on that generalization. Throughout the 1950s, for example, Hand attacked, sometimes publicly, McCarthyism and other aspects of anti-Communist hysteria. Yet in 1950 he delivered the Second Circuit’s opinion affirming the conviction of Eugene Dennis and other Communist leaders for “advocating or teaching” overthrow of the government. According to the author, that decision “is widely seen as a blow to the First Amendment.”
No “activist,” moreover, Hand “preached an extreme version of judicial self-restraint.” He maintained that due process should no more be invoked in furtherance of personal rights than in enforcement of the freedom of contract that once threatened to strangle the New Deal. This view brought harsh criticism from liberal circles.
Gunther’s book qualifies as a definitive biography. As noted above, it goes in searching detail into every aspect of its subject’s personal and professional life. It relies on a staggering volume of correspondence and other documentation.
The author deals candidly with what he sees as Hand’s errors or weaknesses, even with his actions of questionable propriety.
Walter Barthold is retired from the practice of law in New York City.