The Final Plea
Judge Jerome Frank
by Arthur Kinoy
from Rights on
Trial: The Odyssey of a People's Lawyer (Harvard Univ. Press 1983)
Mike
Perlin, Frank Donner, and I were working late
on a Thursday evening in June in the small rooms of the converted Now this new development that Manny Bloch was
explaining to me threatened their lives again. The Chief Justice, Fred
Vinson,
had convened an emergency session of the entire court, calling them all
back
from their vacations, to consider overruling the stay of execution
granted by
Justice Douglas. Stunned, I could think of no other time that such a
thing had
happened in the history of the Court. Manny went on, in the words I
shall never
forget, "The Court sits again at noon tomorrow. Looks like they're
definitely going to vacate By five in the morning we had jammed out a set of
federal habeas corpus papers which put forth the theory that the courts
had no
power under the statute to sentence the So now it was up to us. With fear and trepidation,
Gruber, Perlin, and I walked down the corridor to the office of the
chief judge
of the circuit, the highly respected, conservative Judge Swan. To our
surprise,
we won the first important battle, getting past the bailiff in the
outer office
and then the secretary, by insisting that we had a critically important
paper
to present to the chief judge. While we waited for the judge, Perlin
put in a
call to After what seemed like an hour of sitting in the
reception room, looking at our watches every minute in the knowledge
that eight
o'clock was the outer limit, we were shown into Judge Swan's office. We
quickly
told him why we were there, and to our astonishment, he did not throw
us out as
we had expected. He looked at us and said, "All right, tell me what
your
theory is. Why should I grant a stay of these executions?" Then with a
faint smile, he added, "You've got a mighty heavy burden to carry.
After
all, the full Supreme Court has vacated This was beyond our wildest expectations. We
blurted out, "Judge Swan, what other members of the court are around?
Who
can we get to see? Who is in We sat stunned for a moment. He was sending us to
Jerome Frank, the leading liberal judge on the court; Jerome Frank, the
intellectual leader of the New Deal and architect of its most
progressive
legislation; Jerome Frank, the idol of young progressive law students
and
leader of the liberals when he taught law at Yale, who had led the
fight
against the conservatism of the old-guard faculty by championing, long
before
its actual victory years later, the cause of clinical education in law
school-we were going to see Jerome Frank! As we stood up, half-dazed at this turn of events,
and scooped up our papers, one of us turned to Judge Swan and asked,
"What's Judge Frank's address?" The judge looked at his watch. It was
about two o'clock. He said, "You don't have very much time." Then he
picked up his telephone and called for the car assigned to him as chief
judge to
be brought around and gave instructions that we be taken immediately to
Frank's
home. Things were moving in a way we had never dreamed of. For the
first time
since Manny Bloch's phone call, the possibility of stopping the Judge Frank was at his door to meet us. Swan
evidently had alerted him that we were coming. He welcomed us in a
friendly
way, escorted us into his living room, and as we sat down in
comfortable easy
chairs and nervously opened our briefcases to take out our papers, he
smiled at
us and looked for ways to put us at our ease. The first thing he told us was that Judge Swan had
called to say that an open' telephone line had been established between
the
clerk's office in New Haven and Sing Sing, the New York state prison
where the
Rosenbergs were being held because the federal authorities were
borrowing its
electric chair for that evening. We looked hastily at our watches. It
was about
2:30 in the afternoon. As Judge Frank saw us glance at the time, he
said,
"All right. Present your case." We argued as we had never argued in our lives. We
put forward all the arguments. When we tried to cut short any point,
worrying
about the time, Judge Frank would interrupt, saying, "No, develop that
point. Lay it all out." Afterward he would say, "Fine. Develop the
next point." And we did. At last we were finished. We had been talking and
arguing for more than an hour. We looked up at him, and he looked at us
and was
quiet for a moment. Then he said something that I shall never forget.
He said
to us in soft, slow words, "If I were as young as you are, I would be
sitting where you are now and saying and arguing what you are arguing.
You are
right to do so. But when you are as old as I am, you will understand
why
I"-and he paused, and repeated-"why I cannot do what you ask. I
cannot do it." We sat there stunned. This was Jerome Frank the
liberal, Jerome Frank the progressive....We left without saying more
than a formal goodbye
to Judge Frank. Time was pressing furiously upon us, and we had
only a
few hours left to find another judge of the circuit. Everything in
Judge
Frank's words and tone made it abundantly clear that he could not be
moved from
his position. He said nothing to us and would not look at us as we
left. His
back was turned; he just stood there in the door, motionless.... Jerome
Frank might, in a profound sense, have changed the course of American
history
that afternoon. He could not do it. He was a prisoner of the system he
served.
As a liberal, as a progressive, he had risen to a position of
leadership in
society. He would jeopardize the usefulness of those labels and,
accordingly,
the position they afforded him if he participated in the act of courage
that
Judge Swan, the conservative, was prepared to take. The labels
themselves,
Frank's "liberal" past, imprisoned him kept him from the course he
would have taken if he were "as young as" we were. When we were
"as old as" he was, he was telling us, we would understand that to
preserve our position in society, we must compromise with those in
control.... |