The Final Plea
Judge Jerome Frank
by Arthur Kinoy
from Rights on
Trial: The Odyssey of a People's Lawyer (Harvard Univ. Press 1983)
Perlin, Frank Donner, and I were working late
on a Thursday evening in June in the small rooms of the converted
he talked on, what had happened became clear. All the
Now this new development that Manny Bloch was
explaining to me threatened their lives again. The Chief Justice, Fred
had convened an emergency session of the entire court, calling them all
from their vacations, to consider overruling the stay of execution
Justice Douglas. Stunned, I could think of no other time that such a
happened in the history of the Court. Manny went on, in the words I
forget, "The Court sits again at noon tomorrow. Looks like they're
definitely going to vacate
....We stayed up all night, talking, pulling out books, and poring over the appeals papers that were in the office. By three in the morning we came up with an approach, a way to "do something." We even got excited about it. It was a last resort plan of action. When the full Court vacated Justice Douglas' stay the next morning, we would ask for another federal stay of execution by developing a variation on the approach that had captured
By five in the morning we had jammed out a set of
federal habeas corpus papers which put forth the theory that the courts
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
of the circuit, the highly respected, conservative Judge Swan. To our
we won the first important battle, getting past the bailiff in the
and then the secretary, by insisting that we had a critically important
to present to the chief judge. While we waited for the judge, Perlin
put in a
After what seemed like an hour of sitting in the
reception room, looking at our watches every minute in the knowledge
o'clock was the outer limit, we were shown into Judge Swan's office. We
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
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.
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?
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
be brought around and gave instructions that we be taken immediately to
home. Things were moving in a way we had never dreamed of. For the
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
quiet for a moment. Then he said something that I shall never forget.
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.
right to do so. But when you are as old as I am, you will understand
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
few hours left to find another judge of the circuit. Everything in
Frank's words and tone made it abundantly clear that he could not be
his position. He said nothing to us and would not look at us as we
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....