Purely Commentary

Felix Frankfurter, the Very Remarkable Lawyer,
Teacher, Jurist and Devoted Zionist Adherent
At the invitation of Wallace Mendelson, professor of government
at the University of Texas, 17 distinguished personalities wrote evalua-
tions of the life work of Felix Frankfurter. The volume "Felix
Frankfurter: A Tribute, - published by Reyna]. & Co. and distributed
by William Morrow & Co. (425 Park, S., NY16), is much more than
a collection of essays in honor of the eminent jurist. It is, in fact,
an evaluative study of the United States Supreme Court, a review
of the comparative ideas on legislative matters as they are being
judged by the high court, and it has most interesting biographical
data.
As editor of this volume, Prof. Mendel-
son's introduction is a warm tribute to
"F. F.'s capacity for friendship and the
impact of his personality." He endorses
Reinhold Niebuhr's view that F. F. is "the
most vital and creative person I have ever
known." He is in accord with Archibald
MacLeish who said: "Posterity may or may
not take our word for it that Felix Frank-
furter had more influence on more lives
than any man in his generation."
Prof. Mendelson, viewing the phi-
losophy of Frankfurter, points out that
when the professor left his teaching post
at Harvard for the high bench, in 1939,
he was considered a liberal, and in some
quarters a radical, and "since then has
been deemed a voice of conservatism."
Frankfurter
But Mendelson insists that "F. F.'s basic
outlook did not change." He refers to Holmes who believed that a
judge's duty on the bench is one thing, and his private convictions
another. He declares: "It is ironical that he is now condemned by
some for the very quality that won him a seat on the bench: respect
for the legislative way of life. It is even more ironical that for
essentially the same approach which earned Holmes a liberal repu-
tation, Frankfurter is now deemed by some a conservative. What
has changed, of course, is the relative liberalism 'of Court and
legislature. But in F. F.'s view the people's representatives are
due the same deference, be they liberal or conservative . . ."
Prof. Mendelson properly commences the series of tributes with
the citation to Frankfurter on the American Bar Association Medal
given him Aug. 15, 1963, and the judge's response; and he proceeds
with acclaim for Frankfurter's humanism, his judicial brilliance, his
capacity for friendship, his ability as a teacher.
Sir Isaiah Berlin, former U.S. Attorney General Francis Biddle,
Garson Kanin, Prof. Henry A. Murray of Harvard, Sir Howard Beale,
Australian ambassador to the U.S., Archibald MacLeish, James Reston,
Herbert M. Ehrmann, Max Lowenthal, former Dean Roscoe Pound
of the Harvard Law School and a number of other distinguished men
are among those who have joined in honoring F. F. in this volume.
The first reference to Frankfurter's Zionism is made by Sir Isaiah
Berlin, the eminent British scholar and Zionist. "He was," writes Sir
Isaiah, "a stouthearted Zionist, and his conversations in Oxford on
this topic with the late Reginald Coupland — the principal author
of the Royal Commission's report, which to this day is the best account
of the Palestine issue of its time — are still unrecorded. Coupland
frequently remarked that Frankfurter had taught him more on this
subject than the officials instructed to brief him and had doubtless
made enemies by the courage and candor of his views."
Others in this symposium refer to Frankfurter's adherence to
the Zionist idea, and many speak of the courage with which F. F. acted
in defense of Sacco and 'Vanzetti.
Garson Kanin, the playwright, in his essay "Trips to Felix," tells
of conversations he had with Frankfurter and his wife, Marion, and
he relates the following which answers many questions relating to
Frankfurter's deep Jewish loyalties:
Marion spoke of her concern about "F. F.'s newest preoccupation
— making arrangements for his funeral." She told Kanin: "One of the
things that seem to worry him is the religious aspect. He is afraid
that somehow there will be prayers or words spoken by a rabbi. He
says he wants no such meaningless hypocrisy; that right or wrong,
for better or worse, he left the synagogue when he was 15 and has
never returned. He recalls that he sat there one morning, looked
about him, and realized that the ritual and the prayers meant a great
deal to the others and nothing to him. And he felt he was desecrating
the temple by his presence. So he left and has not returned. He wants
the service held here in the apartment, and he wants the list of people
invited to be limited, and he knows exactly the sort of ceremony he
wants, and above all, no prayers."
And then Kanin gives this account of his conversation on the
subject with Frankfurter himself:
When it is time to leave today, F. F. points at me and says, "I
want to see you privately for two minutes before you go. In the
study." The two minutes turn into twenty. The subject—his
funeral. He says, "When the time comes that we must, as Holmes
used to say, 'bow to the inevitable,' I want to be certain that what
happens is right." He goes on at length, outlining the arrange-
mnents. Who is to speak, who is to attend. "And_I want you," he
says, "to see to it that none of my instructions are violated." He
gives me a commission to execute in New York with regard to the
musical part of the services. I promise a report. Finally he names
the last of the speakers.
"Do you know why I want him?" he asks.
"No."
"Because he is my only close friend who is also a practicing
orthodox Jew. He knows Hebrew perfectly and will know exactly
what to say."
Remembering Marion's earlier account, I am astounded. Have
I misunderstood? I ask, "Do you mean a prayer of some sort?"
"Well, of course, you nut, what else would he say in Hebrew?"
"Then you do mean the Kaddish?
He waves me off impatiently. "Oh, I don't know, and neither
do you, but he'll know and he'll do it beautifully. Let me explain.
I came into the world a Jew and although I did not live my life
entirely as a Jew, I think it is fitting that I should leave as a Jew.
I don't want to be one of these pretenders and turn my back on
a great and noble heritage. I don't want to — how do they say it?
— pass: Like that thoroughly reprehensible — well, never mind.
That's why. So there's going to be the Hebrew."
Special interest attaches to the essay by the late Herbert B.
Ehrmann, who was president of the American Jewish Committee. As
president of the Harvard Menorah Society, he arranged, in 1911, for
Judge Julian W. Mack to be the speaker at the annual dinner. Because

Felix Frankfurter's Jewish
By Philip
Interests . . . His Remarkable
Career as Lawyer and Jurist
Slomovitz
of his wife's illness, Judge Mack couldn't come, and Max Lowenthal
(who also contributed to the Frankfurter volume), who is described
by Ehrmann as "then one of the demigods attending the Harvard Law
School," suggested Felix Frankfurter. Already in that early period
Lowenthal told Ehrmann that Frankfurter "is the greatest man in
the world."
Ehrmann's essay comments on the Lowenthal judgment of Frank-
furter:
"At the moment, I thought this a slight exaggeration. Today I
am not so sure that his appraisal went beyond the fact. Max went
on to say that Felix was then Law Officer of the Bureau of Insular
Affairs in Washington and a powerful influence in the set governing
the capital. Chiefly I recall that he pictured Felix as hobnobbing with
titled Englishmen, even rooming with some of them, and as riding
horses in Rock Creek Park with noble young women. Years later I
came to know that kind hearts meant more to Felix than coronets, and
also that those in high-sounding positions not only left him unim-
pressed, but that he was more severely critical of their behavior than
of those in humbler ranks."
This interesting account is given by Ehrmann of the planned 1911
Menorah dinner:
"We did not have Felix as our speaker at the dinner because I
wanted to make a try first at securing Louis D. Brandeis, then
the Tribune of the People practicing law in Boston. I did not
then know Brandeis, but I had hopes because we both came from
Louisville, Kentucky, and I had been a close friend of his uncle,
Louis Dembitz, some sixty years my senior.
"I do not know whether Felix would have come on one day's
notice because Brandeis surprised all of us by accepting the
invitation. His talk was inspiring, but the evening acquired memor-
able importance for another reason. Harry Wolfson (later Professor
Wolfson) recited an original Hebrew poem, and I read an English
version, which I had laboriously translated. Years later Brandeis
stated that Wolfson's fervor and eloquence were the start of a series
of experiences which kindled within him an interest in Jewish
affairs leading eventually to his historic espousal of Zionism, in
which Felix joined him . . . "
After the Sacco-Vanzetti case, in 1929, Ehrmann, who had just
returned from a six-week stay in Scotland and England, received a
message that Frankfurter wanted to see him. Ehrmann relates in his
essay:
"Felix opened our talk with a question: 'Brute, can you go to the
Middle East for a few months?' When I protested that I had just
landed, he added, "I mean, on business," to which I replied, "That's
different."
"Indeed it was. The British Government had just appointed a
High Commission to investigate the massacres of Jews by the Arabs
in Palestine and to report its findings. Under the Balfour Declaration
in 1918, Britain had bound itself to favor a national home for the
Jewish people in Palestine. The spirit of the Declaration had been
incorporated in the Treaty of San Remo, under which Britain held the
mandate to govern that region. It was important to Jews that the
Parliamentary Commission should not recommend any impairment of
the treaty obligation. Looking backward today through the Nazi
miasma, we now know that this was not merely important, it was
crucial. To assure an impartial investigation, Felix stated first it was
advisable that the different interests should be represented by
counsel. He and Brandeis felt that the Jewish side could be more
effectively presented by counsel not identified with the Zionist cause,
one of whom should be an English conservative and the other an
American lawyer. They wanted to recommend my brother-in-law, Sir
Reginald Mitchell Banks, as senior counsel and me as his junior. Was
Sir Reginald available?
"A cable to London brought an affirmative response, and Felix
promptly sent our names to Lord Melchett. Word came back immedi-
ately that he had just engaged the services of a K. C. high in British
conservative politics as senior and the young son of a prominent
English lawyer as junior.
"The Passfield White Paper that resulted from the report of
the Parliamentary Commission began the eclipse of Jewish immigra-
tion into Palestine. This was later followed by a second White Paper,
which produced a complete blackout of such immigration just at the
time when Palestine would have offered to the Jews of Europe the
only escape from being murdered."
It is quite clear that Frankfurter's role in Zionist efforts was
great and that he was frequently called upon to assist in tasks aimed
at assuring justice for the Jewish cause in Palestine.
Ehrmann's account of his friendship with Frankfurter also includes
an anecdote about a case before the high court in which he appeared
as an attorney. Ehrinann wrote:
In one of the cases, Crown Kosher Supermarket v. Gallagher,
I lost by a margin of two Justices, but with an assist from Felix,
I managed to win what is probably the biggest laugh in Supreme
Court history. The case involved the constitutionality of the
Massachusetts Sunday Closing Law. I represented not only the
kosher market, but also Orthodox Jewish organizations. It was
the first Sunday law case to receive a plenary hearing by the
Supreme Court on First and Fourteenth Amendment grounds.
The courtroom was crowded with lawyers from all over the
country. I had tried the case in the United States District Court,
and the three-judge court had found the Massachusetts Sunday
Law unconstitutional. Chief Judge Calvert Magruder, in the
majority opinion, had found that the statute had a primary
purpose to establish Sunday as a Christian sabbath and also that
its categories of exceptions were so arbitrary as to be a denial of
equal protection of the laws. Among the latter, he cited that the
act prohibited dredging for oysters, but not digging for clams.
Joseph Elcock, Esq., for the appealing Commonwealth, in arguing
constitutionality, answered by explaining that digging clams was
a pleasure, but dredging for oysters was an industry. In reply,
I commented that in Massachusetts clams constituted one of the
biggest food industries in the Commonwealth, whereupon Felix
interjected one of his mischievous questions. "Is there, Mr. Ehr-
mann," he asked in feigned seriousness, "any religious difference
between a clam and an oyster?"
When the laugh subsided, I answered with the same ostensible
gravity, "Not for Orthodox Jews, Mr. Justice Frankfurter."
The entire courtroom, including the nine justices, exploded
with such a roar that neither Chief Justice Warren nor any court
officer called for order. The next morning the New York Times
featured the episode and solemnly explained to its readers that
the eating of all shell fish was forbidden to Jews who observed the
dietary laws of kashruth.
When Felix posed the case of Clams v. Oysters, he was not
being entirely frivolous. He was apparently probing the contention

Habimah Version
of 'Deputy' Makes
Drastic Changes

By JOSHUA H. JUSTMAN

JTA Correspondent in Israel
(Copyright, 1964, JTA, Inc.)

JERUSALEM — When it was
first reported that Habimah plan-
ned the production of Hochhuth's
"The Deputy," doubts were raised
in various quarters here whether
it was proper to have this contro-
versial play brought onto the Jr-- \
rael stage.
The Foreign Ministry then de=----/
nied that, out of concern for the
adverse effect the staging of the
play might have on Israel's rela-
tions with the Vatican, it had
brought pressure to bear on the
Habimah management. However
some felt—and this feeling was
shared by a number of the Ha-
bimah people—that essentially the
central problem raised by the play
was one that concerned the Chris-
tian world and that it was not for
Israel and for Jews as such to
enter the controversy.
Well, "The Deputy," had its pre-
miere at the "Habimah." Says
Israel-born producer of the play,
Avraham Ninio: "I was for it from
the outset, when I first read the
play two years ago. I want it to
be clear that I do not view the
play as aimed at inciting against
the Catholic Church or against
Pope Pius XII personally."
What then will he try to stress?
Ninio said:
"We do not just put the whole
blame on the Pope turning him
into a scapegoat. What we say is:
All are to be blamed — all the
peoples of Europe, those who en-
gaged in the murder and those
who stood by in silence . . . The
guilt was a collective one. How-
ever, the Pope's share is seven-
fold, since as a spiritual leader he
should have given the sign, shown
the way—which he did not."
Like in all the other productions,
a lot of cutting had to be done. If
given in its full version, the play
would have to run for eight hours.
The cuts effected in the Ha-
bimah production include the
whole scene in which Adolf Eich-
man appears; and the scene in
whicheountFontana discusses with
the Pope the international financial
situation. Also cut out was the
scene showing the Jewish family
being sent off to Auschwitz. There
are thousands of families in Israel
which have experienced it per-
sonally, so there is little point in
trying to depict it on the stage. No
amount of realism can do where
there are living witnesses.

that the Massachusetts Sunday
Closing Law had a primary reli-
gious purpose. This Socratic pro-
cess of testing legal assumptions
had characterized his teaching
in the law school and followed
him to the bench. As a teacher-
justice, Felix was pre-eminer
It is remarkable, however, th-,
his popularity survived his
roughing up of the talk and
thought of lawyers during their
great moment before the United
States Supreme Court. Equally
surprising is the durability of
his popularity as a person among
his many friends who accepted
the false notion that the judicial
restraint he imposed upon his
decisions indicated that he had
become a "conservative." In an
earlier period, when the Con-
gress and the states were pass-
ing radical social legislation, this
reluctance to interfere would
have stamped him as a "liberal?
Felix was able to separate his
personal views of life from his
concept of judicial responsibili-
ties . .
The Fr a nkf urt e r-Brandeis-
Holmes friendships are interest-
ingly delineated in this volume.
Frankfurter's influence over his
students at Harvard, the high es-
teem in which he was held, his
devotion to his public duties —
these are among the many factors
that make the Mendelson-edited
book noteworthy.

THE DETROIT JEWISH NEWS
Friday, June 26, 1964
2