Michigan Law Review Michigan Law Review
Volume 93 Issue 6
1995
A Modern Hamlet in the Judicial Pantheon A Modern Hamlet in the Judicial Pantheon
Charles Alan Wright
University of Texas Law School
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Recommended Citation Recommended Citation
Charles A. Wright,
A Modern Hamlet in the Judicial Pantheon
, 93 MICH. L. REV. 1841 (1995).
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A MODERN HAMLET
IN
THE
JUDICIAL PANTHEON
Charles
Alan
Wright*
LEARNED
HAND:
THE
MAN
AND
THE
JUDGE.
By Gerald Gunther.
New York: Alfred A. Knopf.
1994.
Pp. xxi,
818.
$35.
My
son and his family gave me this massive book for my birth-
day.
It
was a splendid choice. The book
is
one that ought to inter-
est anyone who cares about law.
It
is
a highly readable biography
of an extraordinary judge.1
The book was of particular interest to me both because of the
special concern I have for the federal courts and because I had
the
privilege of seeing Judge Hand in action.
In
the 1949-1950 term I
clerked for Judge Charles E. Clark of the Second Circuit, during
the
time when Learned Hand was chief judge. I watched him preside
over the court, I saw the memos
he
sent in cases in which both he
and Judge Clark were sitting, and I still have vivid memories of the
day during the year when Judge Hand lunched with the six clerks of
the circuit.
2
One thing that
he
said over that lunch table I have
often quoted to students: "Anyone can
be
a killer, but only a jury
can make a murderer."
It
seems to me typical of Judge Hand that
he
could state an important point in fourteen memorably epigram-
matic words.
His brilliant Second Circuit colleague, Jerome
N.
Frank, once
said, "To write a competent biography of Learned Hand would
be
singularly perplexing."
3
In
his Foreword to this book, Lewis Powell
says that Learned Hand must inspire in a biographer "feelings of
both gratitude and intimidation" (p. ix). Both Judge Frank and Jus-
* William B. Bates Chair for the Administration
of
Justice and Vinson & Elkins Chair in
Law, The University
of
Texas Law School. A.B. 1947, Wesleyan; LL.B. 1949, Yale. - Ed.
1.
1994 has been a vintage year for judicial biographies. The biography
of
Justice Powell
by John Jeffries, Jr., is another splendid example
of
the
biographer's art.
See
JoHN C.
JEF-
FRIES,
JR.,
JusnCE
LEWIS
F.
POWELL,
JR.
(1994) (reviewed in this issue - Ed.).
And
though
I have
not
yet had a chance
to
read it, I am told by a discerning colleague that
the
biography
of
Justice Black by Roger Newman is also excellent.
See
ROGER
K.
NEWMAN,
HuGo
BLACK:
A
BIOGRAPHY
(1994) (reviewed in this issue - Ed.).
2. I also remember Judge Hand being
of
the old school that believed
that
judges should
come to
the
bench "cold."
He
did
not
think they should read the briefs before
argument
Judge Clark did
not
agree with him but did
not
want to disregard openly
the
chief judge's
preference. Before the argument
of
a particularly interesting case, Judge Clark would send
me
to
the
clerk's office to get the briefs surreptitiously.
3.
Jerome N. Frank,
Some
Reflections
on
Judge
Learned
Hand,
24
U.
Cm. L.
REv.
666,
668 (1957).
1841
1842
Michigan
Law
Review
[Vol.
93:1841
tice Powell must surely be right. Judge Hand
was
a complex per-
son. In a record-setting fifty-two years as a federal judge, he wrote
some
4000
opinions addressing an immense variety of issues.
4
His
work habits, and those of the Second Circuit, provided a huge
amount of material. Hand
was
one of those wise people who hated
talking on the :telephone and preferred to write letters; that vast
correspondence gives information about and insight into the man.
And
the Second Circuit practice by which each judge, after argu-
ment, prepares a memorandum stating his views on the case and
circulates it to his colleagues gives a revealing view of Judge Hand's
participation in the judicial process. Professor Gunther tells
us
that
there are nearly
100,000
documents in the Learned Hand Papers at
the Harvard Law School Library (p. xviii) and that his research re-
quired him to examine many other collections of papers and to visit
many other libraries (p. xx). That the work has taken decades
is
hardly surprising, given the complexity of the subject and the abun-
dance of the material. Indeed, the surprise
is
that it
is
possible to
confine the book to
785
pages.
5
Gerald Gunther, now the William Nelson Cromwell Professor
of Law
at
Stanford University, was a splendid choice to do the biog-
raphy.6
He
was law clerk for Judge Hand in
1953-1954
and in his
own distinguished career has established himself
at
the very top
rank of legal scholars.
To
research and write the book was a labor
of
love. In
an
interview after its publication, Gunther said that
Judge Hand "remains my idol still."
7
Judge Hand's very name suggests that he
was
a great judge.
How could a judge whose first name was "Learned" not
be
great?B
And he looked the part.
He
was an imposing figure; indeed, a
friend described his face as worthy of Gilbert & Sullivan (p. 558).
Another admirer thought that the face "might have been hewn by a
sculptor."9 His stem countenance, bushy eyebrows, and penetrat-
4.
And
wrote
is
indeed the
word.
He wrote
all
his opinions himself in longhand on a
yellow legal pad. P.
290.
"[E]very opinion that bears Hand's name
was
produced, word
by
word,
by
the judge himself and no one else."
P.
289.
5.
The text
is
only
680
pages, but there are also
105
pages of notes. Although these are
mostly citations, some contain enough interesting substance that it would be a mistake not to
read them
as
well.
One has to
go
to the footnotes, for example, for such a tidbit
as
the fact
that the house on East 65th Street,
which
cost the Hands nearly
$30,000
when they bought it
in
1903
and in
which
they lived for nearly
50
years,
was
purchased
by
Richard Nixon
in
the
late
1970s
for about
$750,000
and sold soon after for more than
$1
million. P.
697
n.142.
6.
Norris Darrell, Sr.,
who
was
Judge Hand's son-in-law and literary executor, invited
Gunther to do the biography and gave him
exclusive
access
to the judge's papers.
P.
xix.
7.
David Margolick,
At
the
Bar,
N.Y.
TIMES,
Apr.
22,
1994,
at
BlO.
8.
He
was
christened Billings Learned Hand, and it
was
not until he
was
in his twenties
that he dropped "Billings,"
which
he hated. Throughout his
life
his close friends called him
"B." Pp.
4-5.
9.
Irving Dilliard, Introduction to
LEARNED
HAND,
THE
SPIRIT
OF
LIBERTY
at
v,
xx
(Ir-
ving
Dilliard ed.,
1952).
May 1995]
A Modern Hamlet in the Judicial Pantheon
1843
ing gaze are familiar from many photographs, the most famous of
which
is
the
1957
picture by Philippe Halsman that
is
featured on
the dust jacket. His manner on the bench fit that stem appearance.
"[P]oliteness to counsel and a willingness to tolerate fools gladly
were not among his virtues
....
"lo
Behind this intimidating facade, Gunther tells us, there was a
"warm, modest, and charming human being" (p. 169).
Th.ere
is
much other evidence that this is accurate. His longtime colleague in
the leadership of The American Law Institute, Senator George
Wharton Pepper, wrote of Judge Hand's "great personal charm,
keenness of perception, abundance of humor, ready appreciation of
the other man's point of
view,
and hearty dislike of affectation and
sham."11
The Nestor of the New York Bar, C.C. Burlingham, who
pressed successfully for Hand's nomination for the district court in
1909
(p.
130)
and who
was
one of the leaders in the unsuccessful
campaign to have him appointed to the Supreme Court thirty-three
years later (p. 554), said: "Along with this goes a sort of Rabelai-
sian humor.
He
is
an extraordinary mimic and his expressions and
stories are the delight of his friends."
1
2 Whitney North Seymour
called Judge Hand "the sort of boon comrade who would have been
at
home in the revels
at
the Mermaid Tavern or
at
the Inns of
Court."
13
But along with these attractive qualities there was also insecu-
rity and self
..;doubt.
This
is
one of the major points of the biogra-
phy. Justice Frankfurter occasionally referred to Judge Hand as
"the modem Hamlet."
14
Gunther writes that "he was uncertain
about the proper result in most cases, even after decades of judicial
experience" (p.
289)
and that his "irresolute behavior" on certain
public issues "showed the uncertainty, even fearfulness, that had
been part of his makeup ever since childhood; some of his greater
caution
was
less the product of self-disciplined 'forbearance' than of
what he himself sometimes called a lack of courage" (p. 388). In-
deed, Judge Hand described himself
as
an "unsure, timorous crea-
ture" (p. 575) and
as
Caspar Milquetoast (p. 586).
In
his most
10. Phillip B. Kurland, The Constitution and the Tenure
of
Federal Judges: Some Notes
from History, 36 U. Cm.
L.
REv.
665,
668
(1969). Justice Powell writes
in
his Foreword
that
Judge Hand's "courtroom manner could strike terror into the heart
of
any young lawyer." P.
xi. Gunther says that Judge Hand "would occasionally berate himself for impatient outbursts
in
the courtroom, outbursts that caused some lawyers to blanch and shake." P. 301.
11. George Wharton Pepper, The Literary Style
of
Learned Hand,
60
HAR.v.
L.
REv. 333,
334 (1947).
12.
Charles
C.
Burlingham, Judge Learned Hand,
60
HARV.
L. REv. 330,
331
(1947).
13. Whitney North Seymour, Tribute to the "Old Chief"
of
the Bench, in
IN
CoMMEMO-
RATION
OF
FIFrY
YEARS
OF
FEDERAL
JUDICIAL
SERVICE
BY
THE
HONORABLE
LEARNED
HAND,
264 F.2d 31, 32 (1959).
14. P. 136 (quoting Letter from Felix Frankfurter to Charles C. Burlingham (Jan. 1933)
(Burlingham Papers, Harvard Law School)).
1844
Michigan
Law
Review
[Vol.
93:1841
famous address Judge Hand described "the spirit of liberty" as "the
spirit which is
not
too sure that
it
is right. "
15
That was his skeptical
spirit.
In spite of being a
modem
Hamlet - or, more likely, because
of
it
- Learned Hand is firmly enshrined in the small group of
judges who universally are regarded as great. Indeed, his judicial
service stretched over so many years that he was placed in the pan-
theon long before his death.
In
1947, four years before he took
senior status, the editors of the Harvard
Law
Review devoted the
entire Articles section of their February issue, ninety-six pages, to
eight tributes to Judge
Hand
on his seventy-fifth birthday.
16
In
1959 the Second Circuit held an extraordinary session to mark his
fifty years on the federal bench, and a glittering array of speakers,
including three Justices of the United States Supreme Court and the
Attorney General of the United States, were there to voice their
praise (pp. 672-74).
The recognition of Judge Hand's greatness has
not
eroded with
time. Indeed, the appearance of a major biography of a judge of
an
intermediate court thirty-three years after his death is itself ex-
traordinary and
an
acknowledgment of his towering stature. In one
of the 1947 tributes in the Harvard
Law
Review, Justice Frankfurter
wrote:
It
is important for American law and letters that Judge Hand remain
a mentor and
not
become a memory.
It
is important that he continue
to
enter not merely anthologies
but
the minds
of
men.
In
time, hun-
dreds
of
his specific rulings will cease to have interest for the most
avid legal archaeologist
....
Yet, so long
as
we shall continue to con-
ceive
of
law
not
as the disguised manifestation of mere will
but
as the
effort of reason to discover justice, the body of his opinions will
be
an
enduring source
of
truth-seeking and illumination.17
Judge
Hand
does remain a mentor and not merely a memory.
John Frank has demonstrated this in quantitative terms.
1
s
In
each
of three recent five-year periods - 1980-1984, 1985-1989, and
1990-1994 - Judge Hand is cited by name in federal-court opinions
more often than Chief Justice Marshall, Justice Holmes, or Justice
Brandeis. Although the three who sat on the Supreme Court have
been cited more often than Judge
Hand
in state-court opinions in
these periods, even in those opinions courts cite him many times.
1
9
Frank is surely right when he says that "there
is
no other judge in
the federal system who went out of the business of judging thirty-
15.
LEARNED
HAND,
The Spirit
of
Liberty,
in
THE
SPIRIT
OF
LIBERTY
189,
190
(Irving
Dilliard ed.,
1952).
16.
P.
573;
see
60
HARV.
L.
REv.
325
(1947).
17.
Felix Frankfurter, Judge Learned Hand,
60
HARv.
L.
REv.
325,
325-26
(1947).
18.
See John
P.
Frank, Book Review,
108
HARv.
L.
REv.
931,
945
(1995).
19.
Id.