At Issue: An Improbable Life
Professor Michael I. Sovern '55 recounts some memorable exchanges with Professor Elliott Evans Cheatham, Justice Felix Frankfurter, and Professor Walter Gellhorn '31 in an excerpt from An Improbable Life: My Sixty Years at Columbia and Other Adventures
On a visit to Professor Cheatham I was struck by his profound sense of moral responsibility. A college classmate of mine, Jack Molinas, had just been arrested for fixing basketball games. Jack was an extraordinarily gifted athlete who starred first for Columbia and then for the National Basketball Association’s Pistons. He was expelled from the N.B.A. for betting on his own team. The fixing charge came next. Years after he finished serving his prison sentence, he was gunned down in front of his home.
The conversation I am remembering took place the day the news of Molinas’s arrest broke. The moment remains vivid. Professor Cheatham was standing in front of the window of his office, a chiaroscuro figure in shadow and sunlight, when he said, sadly: “We failed that boy.” He believed without reservation that education should be moral as well as intellectual and that Columbia’s teachers had let Molinas down. That didn’t mean Molinas was to be excused, only that his teachers had also failed in their responsibilities.
That Elliott Cheatham was the most honorable of men did not protect him from student jokes about his name. Not, of course, to his face, but among ourselves the consensus was that he really should find a law partner named Ketcham so that they could form a firm called Ketcham & Cheatham. We heard that Professor Louis Loss of Harvard was the subject of similar conversations: his partner would be named Proffitt.
Professor Cheatham’s reaction to Molinas’s crime was the most dramatic demonstration of my teachers’ ethical sensibilities. Some would address our ethical responsibilities explicitly, others by their examples of public service and other pro bono activities. They reached me: I have no doubt I left law school a better man than the one who entered.
The contrast with my friend Richie’s experience in medical school was striking. To my horror, he was taught not to intervene in an accident lest he be sued. Later I came upon a sociological study that found that over the course of their education law students become less cynical and more idealistic while medical students move in the opposite direction.
. . .
I had two mildly intimidating experiences as a law review editor. The first followed upon the death of Justice Robert Jackson. I was rash enough to resist Justice Felix Frankfurter’s suggestion that we publish a memorial issue in honor of Jackson. We published only eight issues a year, and we had a considerable backlog of authors seeking space. (Half of each issue was devoted to student work.) I wrote Justice Frankfurter: “As much as we would like to devote to Mr. Justice Jackson the large amount of space he obviously deserves, commitments to important authors make it impossible for us to provide the sort of coverage you suggest. . . . I hope, then, that you will reconsider your reluctance to go it alone, and that you will do Mr. Justice Jackson and ourselves the honor of writing a few words.”1
Justice Frankfurter was not to be persuaded by a brash student. He replied: “No doubt authors whose contributions have been accepted are ‘impatient,’ but presumably they are mature and reasonable men and, therefore, would understand that editors are not automata, that planning about intellectual matters is not a mechanical process, and that an event in the history of law like the death of a significant member of the Supreme Court is not to be disregarded because it has not been scheduled.”
Ken Jones, who was clerking at the Supreme Court at the time, called to underscore Justice Frankfurter’s displeasure. I beat a hasty retreat, munching crow all the way:
Dear Mr. Justice:
Mr. Kenneth Jones was kind enough to call us yesterday to reiterate your dissatisfaction with our stand on the issue of Mr. Justice Jackson. Perhaps we have overestimated our obligation to those authors to whom we have already committed ourselves, and I hope you will forgive our mistaken sense of proportion. …
In the end I was forgiven for my “mistaken sense of proportion.” Not only did the Justice agree to write a foreword for the issue, but I was treated to the following letter:
February 3, 1955
My dear Mr. Sovern:
“It won’t write” is an old phrase down here to describe the recalcitrancy of an opinion to get itself on paper. I do not think I ever attempted a piece of writing that was so stubbornly resistant as my attempt to say something briefly about Mr. Justice Jackson. There are two reasons for this. One is the discretion under which I labor as a member of the Court; the other, my deep feeling about the late Justice. My trouble is not want of things to say but freedom in saying them. Writing under wraps is not conducive to writing.
I am troubling you with my difficulties in order to explain what may seem to you an absurd delay in sending you the promised little piece. While I could talk by the hour about Mr. Justice Jackson I find myself constrained as I do in writing something that may take only a few minutes to read. The point of this letter is to tell you that you ought not to hold up the pagination of your leading articles to await my small Foreword. What I shall finally send you will, I know, absorb three pages. This assurance will I hope enable you to go ahead without
further delay and at the same time enable me to stew some more in my own difficulty.
Justice Felix Frankfurter
Note the closing: no longer was the Justice only “Sincerely” mine. And the issue turned out to be one of the best for which I was responsible.2
Jackson was a great subject—a small-town lawyer (Jamestown, New York) who rose to be attorney general of the United States and then a justice of the Supreme Court. He was also the chief prosecutor at the Nuremberg war crimes trials, an assignment he managed by taking an almost unprecedented leave of absence from the Supreme Court. He also could be funny: when an advocate before the court discovered to his great joy that Jackson as attorney general had issued an opinion taking precisely the position the advocate was urging, he made a point of invoking it; Jackson replied: “I am amazed that a man of my intelligence should have been guilty of giving such an opinion.”3 And he could craft phrases with the best of them. In Michelson v. United States, responding to an argument that one aspect of a much criticized rule should be reformed, he wrote: “To pull one misshapen stone out of the grotesque structure is more likely . . .to upset its present balance . . . than to establish a rational edifice.”4 All of this made it relatively easy to recruit first-rate people to write about him. Years later, one of them—Telford Taylor, who was also a Nuremberg prosecutor and who wrote the portion of the issue about that aspect of Jackson’s career—would become my colleague, friend and tennis partner.
My other brush with authority came when I brought a heavy editor’s pen to an article by Professor Walter Gellhorn. Gellhorn was one of Columbia’s giants. Much honored for his scholarly shaping of the unruly field of administrative law, he also wrote about the Swedish ombudsman and was responsible for bringing that institution to America.
After Cheatham retired, it was Gellhorn who placed Columbians in teaching positions all over America. This was a natural evolution: he was already serving as a one-man placement office for his students. One of his notable placements was a response to Thurgood Marshall’s search for an assistant when he was head of the NAACP Legal Defense Fund. Gellhorn offered Jack Greenberg, a young Navy veteran and recent graduate, who would ultimately succeed Marshall and argue dozens of cases before the Supreme Court.
We were delighted to publish a piece by Gellhorn. My working it over was not a mark of disrespect. It may seem presumptuous for a third-year student to be editing a giant, but that was the nature of the Law Review. After receiving his edited article, Gellhorn telephoned me: “Mr. Sovern, I’d like to talk to you about your article.” Clearly only one of us thought I had improved his work. But he didn’t pull rank and club me into submission. He deputized a young collaborator of his to go over the article with me section by section. Some of my changes actually survived.
Professor Arthur Nussbaum, a great scholar, who came to Columbia as a refugee from Nazi Germany, found the American law review tradition seriously defective. He complained that it was not “pleasant for a mature scholar to be subjected to the supreme and irrevocable judgment of incompletely trained students.”5 When, as a twenty-three-year-old assistant professor, I submitted a piece to the Columbia Law Review and an editor from the class following mine changed a few words, I drew upon Professor Nussbaum, lamenting that an “incompletely trained student” was presuming to edit the work of a “mature scholar.”
1 Frankfurter-Sovern correspondence, Felix Frankfurter Papers, Library of Congress Box 131.
2 Felix Frankfurter, “Foreword,” Columbia Law Review 55 (1955): 435.
3 He acknowledged borrowing the riposte from Lord Westbury, McGrath v. Kristensen, 340 U.S. 162, 177 (1950).
4 Michelson v. United States, 335. U.S. 469, 486 (1948).
5 Arthur Nussbaum, “Some Remarks About the Position of the Student-Editors of the Law Review,” Journal of Legal Education 7, (1955): 381-382.