Harvard law professor Noah Feldman

Harvard law professor explains why it’s important today to have Supreme Court justices who are risk-takers and may even have character flaws.

Esquire magazine named Harvard law professor Noah Feldman among 75 influential figures for the 21st century. An expert on Islamic thought, he's also a contributing writer for The New York Times Magazine and author of several books, including Scorpions. The Rhodes Scholar graduated from Harvard and earned his J.D. from Yale Law School. He later served as law clerk to Justice David Souter of the U.S. Supreme Court. After the '03 invasion of Iraq, he advised members of the Iraqi Governing Council on the drafting of an interim constitution.

TRANSCRIPT

Tavis: Noah Feldman is a professor of law at Harvard who was named by “Esquire” magazine as one of the 75 influential figures for the 21st century. He’s also a noted author whose new text is called, “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices.” Professor Feldman, good to have you on the program, sir.
Noah Feldman: It’s a pleasure to be with you.
Tavis: Glad to have you here. You and I were talking before we came on the air here about the fact that not every, but many presidents, of course, get Supreme Court picks. But this guy, FDR -
Feldman: He got nine of them.
Tavis: He had nine of them.
Feldman: Yeah.
Tavis: Yeah.
Feldman: He ran the whole table.
Tavis: Yeah.
Feldman: Yeah, and the first term he didn’t get any, and he was furious because the Supreme Court at the time was blocking all the big New Deal programs that he put into place. So he threatened to pack the court, got into a huge fight with Congress over it, beat back the court. They had a switch in time where one justice flipped from one side to the other, made them a little bit more liberal. Then when he started picking he really got on a roll.
Tavis: Tell me about these four – we’ll talk about them individually, but tell me why, of all the nine choices that he had, nine vacancies, why these four guys?
Feldman: They were all self-made men, either from poverty or just this side of it. They had huge egos, huge personalities and they wanted to be great. They wanted to be great men and great justices, and they were, and they also had great flaws.
I wrote about them because they started as buddies, they started as allies of Roosevelt, and by the time a few years had passed they were enemies and they had developed four different constitutional philosophies. They started as liberals and two became conservative, and they really just went their own ways in very interesting ways.
Tavis: Sounds like if all that happened as you detail in the book, that the court was in flux, for lack of a better word.
Feldman: It absolutely was. It had gone from being a very conservative court before Roosevelt to becoming a much more liberal court, but the main issue that the justices had dealt with in the first part of their careers was economic questions, because of the Great Depression.
Then came World War II and then the civil rights movement and the Cold War, and there were completely new kind of issues to deal with – civil rights and civil liberties – but they hadn’t really thought about it before, and that really drove them in new directions.
Tavis: One of the first things hit me, Noah, when I started looking at your book was how unabashed FDR was about saying that he wanted to liberalize the court. You couldn’t walk around these days saying – I mean, literally saying – “I want to make the court more conservative, I want to make the court more liberal.” You do that now as president or as a candidate for president, you’re toast.
Feldman: That’s absolutely right. He just said it flat out, “I want liberal justices who will upload my policies,” (laughter), “and I’m going to pick the people who can give that to me.” The people he picked were famous liberals who had gone after Wall Street in a big, public way. Each and every one of them had made his reputation in part by saying, “Corporations do not have rights, people have rights, and we’re going to stand up to the corporations.”
Tavis: You mentioned a moment ago that all these guys were characters. They all had personalities. To my mind, at least, with all due respect to the Supreme Court justices now, who I hope to never appear in front of, they seem to be lacking personality.
Maybe Sonia Sotomayor, the only one that’s got some spunk, that’s got a little personality. Respectfully, the other eight just seem to be not full of a lot of personality.
Feldman: To get on the Supreme Court today you cannot have made any mistakes in your public life at any moment from the time that you went to college until the time you go on the Supreme Court in your fifties, usually.
Tavis: In other words, boring.
Feldman: That’s 30 years of keeping your cards close to the vest, and so you have to be a certain kind of person with the ability to control yourself and to avoid controversy, otherwise you just will not get confirmed. You will have no chance of getting up there at all.
Tavis: The American public loses in that process, gains, or it’s a draw?
Feldman: I think we lose, and I think we lose a lot, because we have serious problems confronting our country nowadays, and if you want great people who will have ambition and try to change things, you want people who can take risks. And if you take risks, sometimes you fall on your face, sometimes you make mistakes, sometimes you’re too ambitious.
Today if you take those kind of risks, the chances of your getting confirmed are much, much lower. I think we need flawed people, and not because being flawed is inherently good, although it can teach you lessons, but because great people, great men and women, often are, in fact, flawed people.
So we shouldn’t have a system that says if you show me any weakness or any flaw you’re finished for higher office.
Tavis: Back to the point – FDR has nine picks to the Supreme Court. These four stand out to you, and we’ll let you explain why. In no particular order, first, Felix Frankfurter.
Feldman: Born in Europe, came to the United States at age 12 as an immigrant, not even one word of English, and a dozen years later first in his class at the Harvard law school three years running, adviser to Teddy Roosevelt and then eventually to Franklin Roosevelt, and someone who was tremendously controversial as the biggest liberal name in the country because he defended Sacco and Vanzetti, who were two Italian anarchists who were connected to a big terrorist network, who were convicted of murder and then executed.
He believed they were innocent, and whether he was right or wrong he put his whole reputation on the line to defend them. It’s hard to imagine that kind of thing happening today, where a well-known figure in that way just says these guys, it’s true they know terrorists, they hung out with terrorists, but they themselves are innocent of this crime.
Tavis: And FDR chose him why?
Feldman: Chose him because he was the leading intellectual figure, the person with the ideas in the first instance, who said what we should have is judicial restraint. Now, interestingly, today, we think about it as a conservative viewpoint.
Tavis: Indeed.
Feldman: But at the time, it was a liberal view, because the Supreme Court was inventing rights for corporations. He said if the court is restrained, if it holds back from finding new rights, that will actually serve progressive and liberal values. That was his project and that was his belief, and that’s why he got onto the court.
Tavis: How might he have voted on this recent decision about campaign spending from corporations?
Feldman: He would certainly have held back and not allowed the Supreme Court to strike down the law. What’s interesting, though, is as other liberals joined the court they started saying, “We can be activist, we have five votes,” and Frankfurter said, “Absolutely not. We started as judicial restraint people, we should end that way.”
As a result of that, he started to seem conservative and he ended his career as an influential conservative on the court because he didn’t want to expand anyone’s rights – not individual rights and not corporate rights.
Tavis: The second of these four men, Hugo Black.
Feldman: Hugo Black. In Alabama, from a relatively poor family, successful lawyer, wanted to be in the Senate. Had no statewide organization. How do you get statewide organization in Alabama in the 1920s? You join the KKK, and he did that.
Tavis: Ooh.
Feldman: He went around the state making speeches. His specialty was anti-Catholic speeches, because as you know, at the time the Klan, were pretty equal opportunity haters. They didn’t only hate Black folks, they also hated Catholics and Jews, so his specialty was the anti-Catholic speech. It got him into the United States Senate.
He then sent a kind of quasi-resignation letter, to be kept secret, to the Grand Dragon, that he signed “ITSUB, Hugo Black,” – “In the sacred, unfailing bond, Hugo Black -” and he hoped no one asked. When Roosevelt nominated him to the Supreme Court it was a very fast confirmation process, no vetting. He was nominated on a Wednesday, he was confirmed on the Monday that followed, because he was a Senator and they like each other over there; they still do.
As a result of that, the fact that he had been a Klan member did not come out for another two weeks, and when it did, all hell broke loose. People were outraged, understandably, and he had to go on the radio. He made a speech which is a shocking speech. He did not apologize for being a Klan member. He said, “Some of my best friends are Jews and Catholics, and some of my friends are Black.” That’s how he put it.
And the public sort of said, “Well, okay, I guess you’re not a Klan member anymore, and the poll numbers changed a little. I’m pretty sure that Blacks and Jews and Catholics still did not want him to be on the court, but White Protestants seem to have thought more or less okay.
Amazingly, later on in his career, when Brown against the Board of Education came before the Supreme Court, he had a chance to redeem himself, and amazingly, he did. In the private, secret conference of the justices, the other justices who were from the segregated South, and of course they were all White men, they flatly said, “We will not overturn segregation. All hell will break loose in the South, we don’t want opposition.”
Black said, “I’m sorry, the Constitution as it’s originally interpreted requires us to strike down segregation, even though there will be massive resistance.” I think he did that in large part because he was trying to redeem himself from the shame of having been a Klan member, and I think to some extent, it’s possible to redeem yourself for something like that. I think maybe he did redeem himself in that moment.
Tavis: I’m glad he voted the way he did on Brown v Board, but I’m having a hard time believing that FDR did not know about his Klan past, even though everybody else seemed not to.
Feldman: It was an open secret to anyone who understood Southern politics, and I think if they’d looked, they’d have found it. He got together with FDR afterwards, and FDR clapped him on the back and said, “Don’t worry about it, Hugo, some of my best friends are Klan members.”
So I think Roosevelt thought it was a funny thing on some level. It showed you the kind of world of politics at that time, where they were more or less willing to say, “Ah, it’s politics, it’s part of the game.” He had never really come to terms with it over the course of his career.
He would sometimes be asked by his law clerks, “Why’d you do it,” and he would try to explain it away. He’d say, “Well, I joined the Rotary Club and I joined the Eagles and I joined the Klan.” Of course, that was not the same thing at all. Even at the time that was not at all the same thing, and he knew it.
Tavis: What would happen now – now, today, contemporarily? What would be the recourse? What would be the options, Professor Feldman, if we were – the Supreme Court I can’t imagine it these days, but if the Senate were to have confirmed someone for the Supreme Court, say, that Obama nominated, and then we found out after they’d been confirmed that they had been a member of the Klan or scary or worse? What would the recourse for the American people be, since they are lifetime appointees?
Feldman: Not much, so today, if the person had been asked about that and lied about it under oath, you could go after them for perjury.
Tavis: Yeah, exactly.
Feldman: You could say it’s an impeachable offense. In those days there was no hearing, and when they asked Black about it he was very cagey. He issued a non-denial denial. He said, “Well, if any senator is worried that I might have been a Klan member, he can vote against me.” Which is a way of saying, in code, “Sure I was a Klan member, but I don’t want to talk about it publicly right now.”
So there was no recourse at all, other than public embarrassment, and I think that’s where we’d be today, public embarrassment.
Tavis: Robert Jackson.
Feldman: Upstate New York lawyer, tiny town, our last Supreme Court justice who did not graduate from law school. He went to law school for just a single year and then he figured that the way to get onto the legal profession was to be an apprentice, the good, old-fashioned way – he worked in another law office.
His first law cases involved horses and cows, and he came to Washington to be the general counsel of the IRS, which is not a high-glamour position. He got himself nationally known by going after Andrew Mellon for tax fraud. Mellon was the third-richest man in America, and he’d been secretary of Treasury for almost 12 years. He was sort of, I don’t know, Robert Rubin and Warren Buffett all rolled up into one.
They went after him for tax fraud because he had this little trick. He had the best art collection in the world, and when he wanted a tax write-off he would donate art from that collection to a foundation which he controlled, and the art would not move. (Laughter) It would stay on the wall of his home or his apartments. Of course, he had too much art even to fill his house.
So he got up on the first day of the trial – here he is, being charged with tax fraud – and he came up with a pretty clever response. His lawyer was a guy called Frank Hogan, who famously said, “My favorite client is a rich man, thoroughly scared,” and that’s what Andrew Mellon was.
So he announced the first day, “I’m giving all my art to the people of the United States of America, and I’ll throw in a building.” So he built the National Gallery in Washington and he donated all of his art, and that became the basis for one of the world’s great art collections, because it was just all his personal collection.
So that made Jackson famous and FDR was happy about the fact that he had pulled this off, and subsequently he became FDR’s chief legal adviser as both solicitor general and as attorney general.
What’s amazing, though, is he really got bit by the bug of ambition. He really wanted to be chief justice. He desperately wanted to be chief justice. At first, when he was offered a regular justiceship, he said, “I don’t even want that. I want to wait for the chief justice position to open up. When he got to be a justice he made Roosevelt promise he’d give it to him, and then Roosevelt died.
When Truman was president he was going to give it to him, but Justice Black, who by then hated Jackson, blocked it by saying that he would resign, and so would Douglas, if he gave it to Jackson, and Jackson completely melted down and he went ballistic.
He wrote a letter to every major newspaper in the country, it was on the front page of every paper, declaring that Black was corrupt and that he decided a case secretly to benefit his law partner, who had argued the case, and declared war on Jackson, and he managed to humiliate both of them. They were both terribly publicly embarrassed. Again, you can’t imagine this kind of thing happening today.
Tavis: William Douglas, who you referenced a moment ago.
Feldman: Douglas – another amazing person; from true poverty in Washington state. When he came east to go to school he couldn’t afford train fare, so he was a shepherd. He took himself several hundred sheep that were going to the slaughter and he was in charge of them on the train, and that’s how he paid his way across the country.
Worked his way through school, became a professor. It was noticed by Joe Kennedy Sr., who was the first chairman of the Securities and Exchange Commission, because Roosevelt said, “It takes a thief to catch a thief.” (Laughter) Joe Kennedy introduced him to Roosevelt and he got into the poker game, and that poker game, that was where the power was.
If you played in this poker game with Roosevelt, you were on the inside, and Roosevelt said, “That young man plays an interesting game of poker. I am putting him on the Supreme Court.” (Laughter) He was 40 years old when he went on the Supreme Court of the United States, and Roosevelt wanted him to be vice president.
In 1944, when he ultimately – Truman was ultimately chosen, Roosevelt told the party bosses, “I want Douglas.” They said, “We can’t control this guy. We can control Harry Truman.” So they forced Truman on Roosevelt and Douglas lost his chance.
The other interesting thing about Douglas is that he wanted to be president for another decade, and from the court his first opinions seemed like political speeches. But then, in the early 1950s, his life started to melt down. He fell off a horse and broke a lot of bones; Frankfurter and he hated each other so much that when people said in the Supreme Court Douglas fell off a cliff, the answer was, “Where was Frankfurter?” That’s how bad things were between them. (Laughter)
Then he started getting divorced and remarried. First he was the first justice to get divorced, then the second, then the third. Each wife was younger than the one before. The last one was 22 when he was 69. In this period of time where his life was, by our standards, pretty much a mess, he came up with a great constitutional philosophy which corresponded to his life.
Namely, that the Constitution should be read to maximize your personal freedom, to maximize your personal liberty, including in marriage and reproduction and sex. So he came up with a great theory; the reasons for it, you might not want to look into too closely. (Laughter)
Tavis: I think there are poker players all across the country tonight who you have given false hope to (laughter) about what rests and lies ahead for their future. Wouldn’t you love to be a student in Professor Feldman’s class at Harvard?
His new book is called “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices.” Professor Feldman, congrats on the book and glad to have you on this program.
Feldman: Thank you so much. It’s great to be here.
Tavis: Thanks for coming on.
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Last modified: April 26, 2011 at 12:28 pm