A Modern Hamlet in the Judicial Pantheon.

• Author: Wright, Charles Alan

My son and his family gave me this massive book for my birthday. It was a splendid choice. The book is one that ought to interest 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 epigrammatic 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 Justice Powell must surely be right. Judge Hand was a complex person. 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 argument, 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 required 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 abundance 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 Standford University, was a splendid choice to do the biography.(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?(8) 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 stern countenance, bushy eyebrows, and penetrating 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 stern appearance. "[P]oliteness to counsel and a willingness to tolerate fools gladly were not among his virtues ...."(10)

Behind this intimidating facade, Gunther tells us, there was a "warm, modest, and charming human being" (p. 169). There 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 Rabelaisian humor. He is an extraordinary mimic and his expressions and stories are the delight of his friends."(12) 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 insecurity and self-doubt. This is one of the major points of the biography. Justice Frankfurter occasionally referred to Judge Hand as "the modern 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). Indeed, Judge Hand described himself as an "unsure, timorous creature" (p. 575) and as Caspar Milquetoast (p. 586). In his most 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 modern 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 pantheon 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 extraordinary 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, hundreds of his specific rulings will cease to have interest for the most avid legal archaeologist.... Yet, so long as we shall continue to conceive 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.(18) 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.(19) 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-five or more years...