The Wartime Cabinet


But there were a few: Learned Hand, head and shoulders above any others; John J. Parker, Sam Bratton, who had been on the Tenth Circuit since 1933 (a good Democrat, he had been Senator from New Mexico); Orie Phillips, if you wanted a Republican, also from the Tenth; and Wiley Rutledge, who had been on the U.S. Court of Appeals for the District of Columbia for four years after teaching law for fifteen —Rutledge was a good man and young, a little pedestrian but sound. And Charley Fahy, the Solicitor General, I asked him. He considered, his chin in his hand. They had all liked the way Fahy presented his cases-he was objective, clear, scrupulous. But if we put another Catholic on the Court in addition to Frank Murphy, he suggested, the Church might feel it was always regularly entitled to two. I mentioned Dean Acheson, but it was clear that Stone preferred one of the federal judges.


Outside of Hand, who was far more distinguished than any of the others, Rutledge seemed to me the most promising. His views were sound, carefully reasoned, and lawyerlike. He was apt to be long-winded, probably because he suffered from a sense of obligation to answer everything in the case. He was a liberal who would stand up for human rights, particularly during a war when they were apt to be forgotten. But there was nothing extreme or messianic about his approach. He was certainly not a nice solid Republican.

All of which I reported to the President. Where did Rutledge come from, he asked me. He was born in Kentucky, had taught high school in Indiana, New Mexico, and Colorado and law in Colorado and Iowa. “He’ll do,” said the President, and then, “What do you think about Hand?” I repeated what the Chief Justice had said—head and shoulders above the others. The President told me that he had had a great many letters from men whose opinion he valued, favoring Hand. When I saw him again, he was much cooler when I spoke of Hand; and I heard later that he resented what he called the “organized pressure” in Hand’s behalf. The President told me that he had determined to appoint Rutledge, and that I should get the papers ready and send them to Grace Tully.

Rutledge was a modest man and was amazed when I told him—he really believed he was not up to it. Ten years later, when a chance ocean-crossing threw Hand and me together, and I got to know him and to admire his really first-rate qualities of heart and mind, I came to believe that his appointment would have been more suitable and that I should have urged the President to appoint him in spite of his age. He had the “fire in his belly” that old Holmes used to talk about.

During the many discussions and speculations about Byrnes’ successor, it was natural that I should have been mentioned. My two predecessors, Frank Murphy and Robert Jackson, had gone from the Attorney Generalship to the Court; the precedent seemed to have been established. I was determined, however, not to accept the appointment even if the President wished me to do so. My brief experience on the Circuit bench had not been satisfactory, and I did not wish to renew the mild level of judicial life, on which I had felt cut off from the world and out of things. The members of the Court in Washington seemed to me terribly overworked. I had immensely enjoyed arguing cases as Solicitor General, but that was different—I was doing the arguing, not listening to it.

I dreaded the quiet, plodding, uninterrupted work of a judge. And I did not want to leave the heart of things while war was on. I was always more interested in the vivid present than the future. I was afraid that the President might send down my name without speaking to me first, and it would be embarrassing then to say no. I said a word to Lewis Wood of the New York Times , whom I knew well, as he was assigned to cover the Justice Department and the Court, and in a story he reflected the “impression” that I did not want to be appointed. Soon after, I went over to see the President.


I told him I had come to talk about the vacancy on the Court. Did I want it, he asked. No, I said, I did not wish to leave him during the war, I was happy where I was, I had not liked being a judge. I reminded him of the time he had asked me three years before to go on the Circuit Court, and I had said that being a judge was like being a priest. The President was listening, enjoying the recollection. I added that on that occasion I had asked for an hour or two to think it over; and he had said he was going to a movie and to call him back; and that I had replied that I would call his assistant, Marvin Mclntyre. “No,” he had said, “don’t call Mac, call me.” He laughed again—he was in a good humor that day —and took my arm: “You are quite right, Francis,” he said, now gravely. “You and I are too young to go on courts; we’ve got our careers ahead of us”—he was sixty, I fifty-six. I believe I never liked him more than at that moment.