Mountains and Molehills

...If we cannot trust an author on such easily verifiable details, it shakes our confidence in his larger assertions...

...Once the wall was breached, and Murphy could say that so-and-so had told him about certain events, other interviewees would say, "Oh, he doesn't know what happened...

...With much of this view I am in basic agreement...

...Justice Frankfurter continued to play the political game, and helped secure federal judgeships for some of his former students...

...Although David Levy and I had known of these documents, we had been able to use less than half in our own work, because Max Friedman, Frankfurter's literary executor, had withheld the balance, toMelvin I. Urofsky, co-editor of The Louis D. Brandeis Letters, is Professor of History at Virginia Commonwealth University...

...So too with Brandeis and Frankfurter...

...Justice McReynolds's first name was "James," not "William" (p...

...The criticism derives not from a belief that they were doing bad things, but rather that in doing them, they departed from the high principles they themselves enunciated...

...If they had, they would have been quickly informed that there was no 'secret' at all...

...Conservatives had a field day, with many saying that they had known all along that Brandeis and frankfurter had been the eminences grises behind the New Deal, and what right did liberals have to object to Chief Justice Berger's consulting with President Nixon— "Look what you liberals did...

...Despite these criticisms, let me reaffirm my belief that this is an important book, and that Murphy's story is essentially correct...

...The last of these memoranda was written in 1922, and it would be nearly a decade before the American people became even slightly interested in pursuing a reform program...

...For openers, she directed that Murphy begin his study not with a lengthy overview of previous justices' out-of-court activities (which would have provided a legitimate context in which to evaluate Brandeis and Frankfurter), but with the story of Abe Fortas...

...There is Mr...

...Judge Jerome Frank once commented that when a man dons the judicial robe, he does not stop being a man...

...that she never consulted him, nor gave him an opportunity to tone this purple prose down...

...In the end, this will be the true test of Murphy's book: whether it contributed to the public debate...

...If we do, in fact, want wise men and women on the bench, people whose opinions are respected by our leaders, does it serve the public interest to limit their utility to one area...

...Regrettably I have no answer to offer...

...There is also much to say for allowing our elected leaders to benefit from the wisdom of our judges...

...The furor over the Murphy "revelations" derives, in large measure, from a sense of outrage by one group that judges delved so deeply, and so secretly, into politics, and from the anger of another group that it had been exposed...

...Unfortunately, the reception of the study, more often than not, has been concerned with the hype and distortions more than with the serious questions Murphy raises...

...Recently, I spoke to Murphy, a much-chastened person, who claims that nearly all the changes made to sustain the sensationalist tone of the book were made by his editor at Oxford Press...

...Brandeis also complained that if the journal really hoped to become influential in matters of public policy, it should stop fooling around with literary and artistic criticism—advice which the editors ignored...

...Catron thus epitomized what became the norm— namely, if a justice engaged in partisan affairs, he did so quietly...

...Louis Marshall, Brandeis's bitter opponent in the American Jewish Congress struggle of 1915-1916, was by no stretch of the imagination one of Brandeis's "Zionist lieutenants" (p...

...According to Murphy, once Brandeis went onto the Court in 1916, he publicly adopted a policy of complete abstention from political activities...

...Although his influence waned with the passing of his friend and sponsor, Franklin Roosevelt, Mr...

...Brandeis never "prevailed" on Cordell Hull to impose a boycott on German goods (p...

...From 1789 to 1939, the year Brandeis left the Court and Frankfurter went on to it, more than two>thirds of the men on that bench engaged in overt or covert political activities...

...As noted, some of these issues were originally disclosed in my own work on Brandeis, and I provided some (useful, I hope) advice to Murphy in the course of his research...

...MOUNTAINS AND MOLEHILLS Setting The Brandeisl Frankfurter Connection straight MELVIN UROFSKY It was nearly ten years ago that Bruce A. Murphy, a tall, gangly graduate student of Henry Abraham at the University ofVirginia, walked into my office and asked if I might be able to advise him on an idea he had for a dissertation...

...Although I believe Nelson Dawson's Louis D. Brandeis, Felix Frankfurter, and the New Deal (1980) is an inferior book to Murphy's, Dawson makes a convincing case that the efforts of the two men to control New Deal agencies through staffing them with sympathetic former students was a failure...

...But though he was less than happy with the New Deal agricultural program and may have disagreed with its philosophy, he voted to sustain it, because, unlike some men who have sat on the high court, Brandeis was able to distinguish between his own biases and the right of the legislature to pursue its own wisdom...

...We are now at work on a supplemental volume, which will include these documents, and the total is far more than the 300 indicated by the Press...

...When, nearly a quarter-century later, Frankfurter died, he directed that his papers, like Gaul, be divided into three parts...

...The professor was no cipher, despite his great admiration for Brandeis, and the fact is that they were in such basic agreement on most issues that the prophet could safely leave the choice of causes to his scribe...

...Unhappy as he was, he did not withdraw the manuscript...

...If a man or woman has been a wise counselor, if he or she has been a source of useful ideas, should the country and its elected leaders be deprived of that wisdom because he or she now wears the black robe...

...a lifetime of experience, values and prejudices cannot be obliterated by going on the bench...

...You've got strong evidence there," we told him, "so come right out and say what you have found...

...In the early 20s Brandeis sent a number of memoranda on current issues to Frankfurter, who then had them published, either under his own name or as unsigned pieces in The New Republic...

...Murphy uses the term "double Felix" to describe an essentially split personality...

...While he may have, in my opinion, violated his public stance against involvement, he did not, so far as I can tell, ever violate his oath to administer justice fairly and impartially...

...Some commentators, however, have also raised the question of Frankfurter's status...

...the State Department opposed the boycott, which was directed by an informal coalition of American Jewish groups...

...We do, however, rightly or wrongly, expect that our judges should observe the unwritten doctrine of separation of powers more carefully than do our congressional representatives or presidents...

...Similarly, in discussing their influence, Murphy assumes that every acquaintance of the two men was by definition an "ally," an assumption nowhere supported by the data...

...At the same time, if we fashion hard and fast rules to isolate our judges, we may isolate them so far as to cripple justice...

...Rather it is the hypocrisy, the great discrepancy between public protestations and secret acts...

...For the most part, the attack has been aimed at Brandeis for this apparent breach of judicial probity...

...When Frankfurter, after extensive lobbying for the post, went onto the Court himself in early 1939, he personally carried on political activities, especially in regard to American preparation for the war and its policies during the conflict...

...But the service history can render is to raise these questions, and illuminate the discussion with knowledge of what has gone before...

...There is practically no charity that, at one time or another, does not face legal problems...

...I congratulated him, and said I would be happy to do so, but no galleys ever came...

...A few years later, Brandeis's extensive and continuing labors on behalf of Zionism were explicated, and the fund that Brandeis provided for Frankfurter was set forth in another book, not as if it were a revelation, but for what it was, a situation by then well-known to scholars...

...Both men recognized that proprieties had to be observed, and to avoid public opprobrium, went to great lengths to cultivate images of judicial rectitude...

...anyone who has studied the careers of the two men has been aware of the fact, if not the extent, of that involvement for years...

...Brandeis provided frequent advice which his surrogate carried to the White House, some of which related to legislative programs that would later be reviewed by the Supreme Court...

...If all we had to deal with were Brandeises, however, our problems would vanish...

...Murphy did...

...Defenders of Brandeis leaped to rescue his reputation, picking what holes they could in the published version— and there were many—to discount the entire volume...

...Murphy has a strong case, but weakens it unnecessarily by trying to ascribe too much to his protagonists...

...Evidence from numerous sources proves incontestably that they consulted with members of the executive and legislative branches, at times on matters that later came before the Supreme Court for review...

...In fact, just those experiences and values are the reason certain men and women are chosen to be judges—although as many presidents have discovered, the responsibilities of the office often transform the individual...

...The general public, in the meantime, has raised the Court and its occupants to an Olympian level, and is now shocked when it learns that underneath the black robes, as Jerome Frank told us, remain human beings, often with human frailties...

...In Murphy's dissertation and law review articles, any reference to letters published in the work Levy and I edited were appropriately cited to that source...

...still, can anyone doubt, given his publicly expressed judicial opinions, that he would have voted any other way...

...Shortly after Brandeis died in 1941, Frankfurter had gone down to the University of Louisville Law School, where Brandeis had deposited his papers...

...There are also numerous conclusions based upon, to my mind at least, insufficient evidence...

...Thus the Times, whose reputation derives principally from a careful sifting of fact from fiction, of critical evaluation of charges, swallowed whole Oxford's publicity release, and the lurid story ran as a news feature on page one of the Sunday edition...

...Nothing should be done that in any way might stain the reputation of the tribunal, and, for the most part, nothing was...

...This was, and remains, good historical investigation...

...Instead, I learned of its publication by a front page story in the New York Times and a call from National Public Radio...

...When an early Congress attempted to involve the Court directly in political activities related to pension claims, the Court refused, but did not state any rules precluding future involvement by individual justices...

...others he took with him...

...Lest there be any mistake, let me reiterate my own admiration and respect for both Louis Brandeis and Felix Frankfurter, as well as the fact that ideologically 1 sympathize with much of what they advocated...

...John McLean placed his hat in every presidential race from 1832 to 1860...

...Perhaps now, with the furor beginning to die down, we can do what should have been done earlier, namely, apply justice to history, and in doing so, glean what history can tell us about our justices...

...First, let us look at the gravamen of the charges...

...Brandeis was not "raised by Old World parents in financial distress" (p...

...What does it say about the integrity of a professor, especially one who teaches law, who secretly accepts money and then presents himself as an independent actor...

...This is the major issue Murphy raised, and one that has been largely ignored in the controversy over his book...

...Is this necessarily bad...

...Is there a normative standard to which we can, and should, hold sitting judges, and if so, what is it...

...But what about the system...

...and that when he objected, he was told that his contract gave the Press final say over content...

...Frankfurter, the "scribe," was an inveterate meddler, and like an addict, could not give up the drug of political activity...

...who is to say that Abraham Lincoln, Theodore Roosevelt, Woodrow Wilson, Herbert Hoover, Franklin Roosevelt—and the country—did not gain from the advice tendered, albeit secretly, from the bench...

...Over the next century and a half, judges, as we now know, routinely participated in political matters...

...Brandeis could, and did, separate his responsibilities on the bench from his after-hours support of and advice to Wilson and later Roosevelt...

...The papers were held up even longer when Friedman had a stroke, and were not finally deposited in the Library until long after we had finished our work on the fifth volume...

...Frankfurter's duty to his wife would have necessitated his taking on paying work at the expense of reform, and Brandeis—who also gave money to other people for personal needs— wanted to provide his "half son, half disciple" with freedom to advocate liberal measures...

...they did attempt to hide their political activities...

...After receiving his degree, Murphy got a job as assistant professor of government at Pennsylvania State University, and I lost touch with him until he called me to say that Oxford had accepted the manuscript, and if the Press sent me an advance copy of the galley proofs, would I be willing to write a few words for the dust jacket...

...historians are invariably more comfortable with what has been than with what should be...

...he was not even a Zionist...

...The executive branch and the legislature are openly political, and consultation between them is not only desirable, but necessary to further the business of the country...

...These two respected institutions spent several weeks negotiating what parts of the book the Times would excerpt for its front page story...

...John Catron regularly advised James K. Polk, but always with the admonition—which Polk failed to observe— to "throw this in the fire...

...As Brandeis wrote when he asked the Harvard Law Professor to permit him to underwrite the expenses of reform and pro bono work, "I ought to feel free to make suggestions to you, although they involve some incidental expenses, and you should feel free to incur expense in the public interest...

...Brandeis kept up a steady stream of suggestions, which Frankfurter and his students turned into an outpouring of law review articles, many of them critical of the decisions of the conservative majority on the Court...

...Oh yes, I responded, much more, but it would have to be dug out of dozens of archives and from interviews with those still living who had been involved...

...With his philosophy of judicial restraint, he did more than any other person in this century to create an image of the judicial cloister, of judges whose sole duty lay in deciding cases, their decisions untrammeled by any outside involvement...

...a newly appointed assistant professor, one hoping for promotion and tenure, rarely does, especially from-a press with Oxford's reputation for quality and probity...

...William Howard Taft played a major role in Republican Party affairs in the 1920s, and on the liberal side, Harlan Fiske Stone was a member of Herbert Hoover's "medicine ball" cabinet...

...I mention this not as a claim that I "beat" Murphy to the draw, but rather to indicate what Oxford should have known, namely, that the value of Murphy's contribution lay not in uncovering secret second lives but in filling in the spaces of an as yet incomplete mosaic...

...Certainly our cast of characters, while not necessarily exotic, is not one we usually associate with public controversy—a graduate of one of the most respected government departments in the country, the world's oldest university press, and the great gray lady herself, the New York Times...

...In summing up these activities, I wrote: "The country would have been rightly upset if it had discovered a Supreme Court justice working to draft a party platform in order to get the Democrats back into power...

...Just because Brandeis and/or Frankfurter showed interest in some area, or even attempted to influence events, does not prove they were the prime causal movers involved...

...With one exception, Frankfurter never used the secret fund for anything but expenses attached to reform...

...The Brandeisl Frankfurter Connection thus broke upon us, and the air has been filled with charges of chicanery ever since...

...The press release heralded a tale, based on this allegedly newly discovered cache, of "the second lives [Brandeis and Frankfurter] led, in secret, for nearly 50 years, behind the seats of government power...

...Fbrtas, you will recall, had to resign from the bench after disclosures of a $20,000 retainer by the Wolfson family and the fact that he had not recused himself when Wolfson affairs came before the Court...

...Until here our story is rather common...

...As a starter, I shared files on the unpublished fifth volume of Brandeis letters, and told Bruce about the Felix frankfurter Papers at the Library of Congress...

...it was Frankfurter who acted as Brandeis's lieutenant in Zionist affairs...

...The task is not to guard against men and women of integrity who can separate their judicial from non-judicial lives, but against those who cannot...

...First, "members of the Court were expected to do more than merely stay out of politics, they were not even to consider such involvement in the first place...

...Over the years, legal scholars have known and occasionally written about these forays off the bench, but concluded that they were rarely of great significance...

...gether with other files, while he worked on a study of Frankfurter and Franklin Roosevelt...

...Brandeis privately expressed his displeasure at the philosophy behind the National Industrial Recovery Act, and then voted to kill it in the Schechter case...

...Several commentators have attacked Murphy's research, and charged that he misused and misinterpreted the documents...

...People expected them to be above partisan meddling, to be pure when great issues came before them for adjudication...

...Since Murphy acknowledges that neither Brandeis nor Frankfurter was ever tainted by seeking personal gain in his activities, the implied comparison to Fortas, as William Goldsmith of Brandeis University has charged in a widely circulated memorandum, is "of such questionable ethical concern that it ought to be publicly condemned and the reader put on warning with regard to the editorial advice and methods advanced by the publisher...

...Constitution and custom, on the other hand, insulate our judges in order to allow them to decide highly charged issues without fear of political recrimination...

...Brandeis, whom he labels the "prophet," for the most part contented himself with proclaiming his vision of a just and democratic society, expecting that eventually right would prevail...

...Justice Frankfurter, a model of judicial rectitude, and there is Felix the finagler, addicted to the political game, each one trying desperately to avoid the other...

...62...

...when his father foresaw the depression of 1873, he closed the business and took the family to Europe for three years, hardly a sign of distress...

...Only his immense energy allowed him to meet his judicial responsibilities while at the same time devoting himself to political manipulations...

...He had read one of the books I had written on Louis Bran-deis, and was intrigued by references to Brandeis's off-court activities...

...Here we have a wide range of opinion, from one extreme that wants the courts simon-pure politically, to the other that believes contact with the "real" world makes for a better jurisprudence, and that merely requests recusation if off-court activities would render it impossible for a judge to deal fairly with an issue in which he or she had been previously involved...

...With few exceptions, he felt no need to act directly...

...As to matters that might come before the Court for adjudication, common sense tells us that judges will vote their beliefs on these matters whether they have been consulted about the matters beforehand or not...

...Nelson Dawson, a graduate student at the University of Kentucky, had been the first to utilize these materials, but in his rush to complete his dissertation and get into print, he never went beyond this source...

...Moreover, while Murphy has filled in the lacunae, the general story has been known for years, despite Oxford's continuing assertion that the "paid agent" material is a new revelation...

...There were differences between the two justices, as Murphy points out...

...In not a single case involving New Deal legislation would we have expected Brandeis or Frankfurter, based upon their previous statements of judicial philosophy, to have voted differently...

...Yet I fail to find any evidence that their judicial integrity was impaired...

...Justice Frankfurter went through those files containing letters between him and Brandeis, and destroyed many of them...

...It was Frankfurter who translated Brandeis's memoranda into hard-hitting articles in The New Republic...

...Frankfurter continued the pattern, and in his diary in 1943 wrote: "When a priest enters a monastery, he must leave—or ought to leave—all sorts of worldly desires behind him...

...Ironic as it may now sound, the committee unanimously urged him to stop shillyshallying...

...To accomplish this he used surrogates, mainly Harvard Law Professor Felix Frankfurter...

...Certainly, the book is riddled with minor errors...

...The irritant here lppears to be not that Brandeis gave money to support reform, but the manner in which he did it...

...There is much to be said for consultation in those areas of mutual concern, and in the selection of judges and the administration of the judicial system, Supreme-Court members have often been solicited for their advice...

...Yet there is not a shred of evidence that the financial arrangements affected either Frankfurter's integrity as a teacher, or Brandeis's decisions as a judge...

...Throughout American history, as Murphy shows, many Supreme Court judges have continued to involve themselves in political matters, usually in secret or at least with discretion, and this does not seem to me so heinous a crime...

...What disturbs me most is not the political involvement...

...The second rule is that one can generally ignore the first rule...

...Another area that has raised ethical questions is the secret fund that Brandeis provided Frankfurter, which more than any other revelation in this book has led to a denunciation of their collaboration...

...Or is the value we place on the non-partisan purity of that area so high that we willingly forego any involvement, no matter how beneficial, of our justices out of the courtroom...

...To be accurate, while Professor Levy and I had published nearly 250 letters to Frankfurter, several hundred more were not included because, as indicated earlier, they were not available...

...In addition, he is currently completing his law degree at the University ofVirginia...

...Murphy should have paid more attention to Brandeis's favorite quote from Goethe: "It is in the small things that one proves oneself the master...

...As a scholar who had worked on Brandeis, 1 was invited by the University of Virginia Department of Government to sit as a member of the review committee when Bruce defended his thesis in the great rotunda designed by Thomas Jefferson...

...His response was that he, a graduate student, felt diffident in criticizing such great men...

...This article is adapted from his presentation, the 1983 Harry Elson Memorial Lecture, to the American Jewish Historical Society...

...And this Court has no excuse for being unless it's a monastery...

...To argue that a judge must avoid any contact with any group or agency that might one day be a litigant in court is to seal off our idges from all contact with the out-ide world, a condition that could only ead to poor justice...

...Frankfurter, on the other hand, never earned that much as a law teacher, and faced the choice of genteel poverty as a reformer, or earning additional money through lucrative consultancies that were his for the taking...

...Unfortunately, there is little historical evidence to indicate what the Founding Fathers intended...

...He could, to put it bluntly, afford to take on pro bono work and not worry about feeding or clothing his family...

...surreptitiously, however, he continued to advise the Wilson administration, the Zionist Organization of America, and later, Franklin Roosevelt and the New Deal...

...He interviewed dozens of men still alive, including Tom Corcoran and Ben Cohen...

...But there are problems in this book that I find disturbing, and that have disturbed others as well...

...Those materials relating to law were to be deposited in the library of the Harvard Law School...

...There is just no evidence here to support Murphy's contention that "in effect, [Brandeis] became a member of the editorial board in absentia,7' or that through these pieces "Brandeis began to prepare the climate of public opinion for his reform programs" (p...

...We have to protect against a Roger Taney, for example, who drafted constitutional messages for Andrew Jackson, or an Abe Fortas, who took retainers and did not acknowledge a patent conflict of interests...

...I would soon be documenting the Justice's Zionist activities after 1916, but much remained to be done...

...In 1971,1 detailed much of Brandeis's work with the Wilson administration during World AVar I, and his subsequent efforts to reshape the Democratic Party in the early 20s...

...Murphy, though, discovered enormous amounts of new material, and filled in many gaps in our knowledge with data that we could previously only guess at, or had no idea even existed...

...If so, then the interests of both history and justice will have been served...

...Witness the reception of The Brethren a few years ago, a gossip-mongering book that contributed little to our knowledge of the Court or its members, but that upset many people who somehow expected justices of the United States Supreme Court to be above all this...

...He possessed a real reverence for the Court, which he frequently called the highest tribunal in the world, and resigned from his Zionist offices so as not to embarrass the office...

...Brandeis always believed that a man's first obligation was to provide for his family, and recognizing in Frankfurter a reformer of exceptional ability, made it possible for him to pursue public causes...

...Was there more...

...The Zionist sections were to go to the Central Zionist Archives in Jerusalem, and the balance, concerning his public activities, were directed to the Library of Congress in Washington...

...During the 1920s Brandeis provided a secret fund that underwrote Frankfurter's reform activities, including the defense of labor radicals and of Sacco and Vanzetti...

...Oxford, however, sensing a best-seller, insisted on more changes, in order to exploit the "sensational" aspects for all they might be worth...

...I was there...

...Some, but not all of this (especially the allegation that the contract gave the Press final content control), has been publicly confirmed by the Oxford editor, who noted in an interview that Murphy's dissertation "needed a lot of work as a book...

...Is its integrity impaired by such activity...

...If we wish to leave it in the future as it has been in the past, then we gamble that someone with poor judgment and lack of discretion will eventually do real harm to the Court and the position it holds in American society...

...Graduate student, given advice and suggestions, follows them to a gold mine of new information, writes his dissertation and gets degree...

...What makes this litany even more amazing is that both men publicly proclaimed the Court to be a monastery, whose members could not and should not engage in anything even hinting of political involvement...

...In short, they were hypocrites, and their activities raise serious questions about their own personal integrity, about the separation of powers and about the limits, if any, on extrajudicial activities...

...they did attempt to influence policy by having people sympathetic to their philosophy placed in key agencies...

...He had, through diligent research and clever interviewing, put together what appeared to be most of the pieces in the puzzle, but it was buried beneath the dense verbiage that seems to afflict most graduate students...

...In an interview on "All Things Considered," the reporter questioned me about the existence of a Brandeis-Frankfurter "slush fund" and the ethics involved...

...In the book, footnotes were changed to list the original manuscript collections in order to bolster publicity claims that the revelations derived from "three hundred never before published letters...

...That one exception was to meet medical bills for his wife's illness, and both men recognized the fairness of this...

...it was Frankfurter who, with Brandeis's advice, picked up the task of defending protective legislation before the courts...

...But is it possible for a judge to so compartmentalize his or her activities...

...At a recent conference, Murphy suggested that Brandeis was aware of two general rules regarding extracurricular activities by Supreme Court members...

...The list goes on and on...

...Brandeis trusted Frankfurter, whom he often described as "the most useful lawyer in America," to do the right thing...

...Brandeis had become a wealthy man before embarking on his reform career, earning enough to allow him to "live freely...

...But there remains still the broader and more important question of whether, under any circumstances, judges on what Brandeis once called the "world's highest tribunal" should engage in extrajudicial activity...

...Several actively sought their party's presidential nomination without, as Charles Evans Hughes did, resigning from the Court...

...Brandeis constantly averred that the office "precluded" him from giving advice, making recommendations for appointments or even accepting honorary degees...

...Murphy does not claim, despite the misinterpretation of some reviewers, that Brandeis dictated which activities Frankfurter should pursue...

...On both these charges I find myself differing with men and women whose opinions I value highly...

...We expect, and rightly so, an Olympian detachment when it comes to partisan politics, and on this count Brandeis violated his own concepts of judicial propriety...

...Brandeis and Frankfurter were heavily involved in extrajudicial political activities...

...Once again I refer to Professor Goldsmith, who charges that the Times never contacted any "scholar familiar with Justice Brandeis's career to ascertain the authenticity of the publisher's claim to the discovery of the 'secret' relationship...

...Let me tell you...

...Perhaps it is time, as Murphy suggests, to re-evaluate what code we expect judges to follow, and if we find the Brandeis/Frankfurter model unattractive, to accept that it is our responsibility as much as theirs to fashion new standards...

...It is here that our tale begins to assume the convolutions more often associated with literature than with the scholarly disciplines, and the denouement ought, perhaps, to take place in the parlor car of the Orient Express, with Hercule Pbirot patiently explaining it all...

...Well, sonny, if you know that," came the response, "then you probably know about...

...In this last collection can be found several hundred letters from Louis Brandeis...

...Moreover, close personal relations, such as those between Brandeis and Wilson, Frankfurter and Roosevelt, or Abe Fortas and Lyndon Johnson, cannot, and one might argue, should not be sundered by a change in status...

...many of their proteges entered at levels too minor to have any significant impact on programs, a claim that Murphy contests but does not convincingly refute...

...Whether Brandeis could be considered to have "act[ed] as a member of the Wilson administration during the war," or that Frankfurter played an even more involved role with Roosevelt in the Second World War—these assertions are debatable only in the question of degree...

...But Oxford wanted to sell books, and the New York Times wanted to sell newspapers...

...But as we all know, a Brandeis or a Holmes, a Stone or a Cardozo, comes along infrequently...

...At first many of them refused to talk about the extrajudicial activities of Brandeis and Frankfurter, but finally Murphy was able to piece together, from a variety of sources, proof of one episode, and at his next interview, brought this up in a tone indicating that he knew all about it...

...One should also recall that Brandeis gave money to other causes, and ask whether this too ought to be viewed as violating judicial proprieties...

...When Franklin Roosevelt came to power, Brandeis and Frankfurter set up what amounted to a private employment agency, ensuring that key staffers on the New Deal agencies would be sympathetic to the Brandeis vision of American society...