Written by Hazel Weiser
Attorney General Eric Holder at May 7 White House briefing on judicial vacancies
Felix Frankfurter could never be confirmed as a Supreme Court justice in today’s America. He was a prolific scholar, leaving a trail of law review articles and books that even his contemporaries at Harvard Law School branded as radical. He was a principled activist. He organized an investigation into the notorious Palmer raids, orchestrated by a young ambitious J. Edgar Hoover. Frankfurter and a small group of colleagues published “Report to the American People,” May 28, 1920, in which they accused then Attorney General Alexander Mitchell Palmer and Hoover of an “assault upon the most sacred principles of our Constitutional liberties.” Weiner, Tim (2012). Enemies: A History of the FBI. Random House, Inc. (The Palmer raids accurately foreshadowed the American response to 911.)
The Palmer raids rounded up thousands of mostly immigrants who were suspected of being Communists and anarchists. No one knows for sure how many people were pulled off the streets, out of their homes, and away from their families. Those men and women were beaten, tortured, and held incommunicado. Over five thousand men and women is the estimate. Those who were born abroad were summarily deported after only cursory hearings. All of the detainees, most of whom were rounded up without warrants, were denied access to lawyers.
Professor Frankfurter challenged the power of the Attorney General of the United States and his emerging bully, J. Edgar, in court proceedings held in Boston. Hoover arrived but never came into the courtroom after Palmer was humiliated during questioning. Instead Hoover quietly fled back to D.C. and later denied that he had indeed run every aspect of the Palmer Raids.
More activism, more commitment to social justice and the fair administration of the law. Frankfurter, after reviewing the trial transcript, defended Sacco and Vanzetti in an impassioned essay in the Atlantic Monthly. The prosecution and judge, accused Frankfurter, had played on anti-immigrant sentiments within the jury, and the case violated “all…notions of Anglo-American procedure.” Then Harvard President A. Lawrence Lowell was appointed by the Massachusetts governor to review the conviction, and found that there was no viable claim of misfeasance nor should there be clemency. Here’s where academic freedom is essential: Frankfurter remained on the Harvard Law faculty from 1914 through 1939, when he was appointed to the U.S. Supreme Court by President Franklin Delano Roosevelt.
Imagine what his confirmation hearings might look like today! (Think Goodwin Liu for the Ninth Circuit or Dawn Johnsen for Director of Office of Legal Counsel.)
Every president is entitled, under the constitution, to a very specific legacy. The power of the president to nominate qualified candidates to the federal judiciary for life, subject, of course, to the advise and consent of the Senate, is one of the most important presidential powers written into the Constitution. Yes, originalists, written into the Constitution from the very beginning! The judicial appointments process has bogged down in politics. Depending on which political party is telling the history, the blame for escalating obstruction gets bandied back and forth. It seems more prominent, or at least, more effective, during Democratic administrations.
