'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.
