Felix Frankfurter (1882-1965) is best known as an outspoken promoter of judicial restraint during his service as a Supreme Court justice from 1939-1962; for helping to found the American Civil Liberties Union in 1920 and serving as its legal advisor, which led J. Edgar Hoover to call him “the most dangerous man in the United States”; for his support of American recognition of the newly created Soviet Union in 1919, which led many analysts to describe him as a “disseminator of Bolshevik propaganda”; and for his years as a professor at Harvard, during which he continued his progressive work on behalf of socialists and oppressed and religious minorities.
On an interesting note, Frankfurter hired an Orthodox Jew as a Supreme Court clerk; unable to get home for Sabbath, the clerk regularly slept on the justice’s couch on Friday nights. Frankfurter also employed an African-American as a clerk (he was the first justice to do so), but he turned down highly-qualified female applicants for the position based entirely upon their gender – including Ruth Bader Ginsburg who, ironically, would later reconstitute the so-called “Jewish seat” on the court.
After Frankfurter served as Assistant U.S. Attorney to Henry Stimson in New York in 1906, his career became entwined with FDR at the Department of the Navy. He maintained a close and lifelong relationship with Roosevelt, beginning with serving as counsel to FDR when the latter was elected governor of New York. He later declined President Roosevelt’s offer to become U.S. Solicitor General on the grounds that he could be more helpful to FDR working outside the administration. During FDR’s presidency, many claimed that Frankfurter was “the most influential single individual in the United States.”
In nominating Frankfurter to the Supreme Court in 1938, FDR ignored the advice of those counseling against permitting two Jews to simultaneously serve on the court (Brandeis was the other). His wife, the very tolerant and respected Eleanor Roosevelt, characterized Frankfurter as “an interesting little man, but very Jew.”
Sadly, but not surprisingly, much of the strongest opposition to his selection came from Jews, including particularly New York Times publisher Arthur Sulzberger, who feared that Frankfurter’s appointment would lend support to those who criticized FDR’s bold initiatives as being “run by the Jews,” including Roosevelt’s “Jew Deal” (New Deal).
Frankfurter also drew significant opposition for not being born in the United States (he is one of six foreign-born justices in American history) and for his support of “Communist infiltration into the country.” As a result, he became the first nominee to testify personally before the Senate Judiciary Committee.
Frankfurter was descended from a long line of rabbis, including his father, an Orthodox rabbinical student turned businessman. Raised Orthodox, he spoke only Hebrew and Yiddish as a child such that when he arrived on Ellis Island in 1894, fleeing anti-Semitism with his family, he spoke no English at all. He abandoned his Jewish faith at an early age, married a Protestant minister’s daughter after his father’s death, which devastated his mother, and regarded his Judaism as a mere “accident of birth.”
Among the most secular jurists to serve on the Supreme Court, he promoted with almost religious fervor his belief in cultural assimilation and the power of the American social meritocracy, as evidenced by his own rise from a Jewish Lower East Side ghetto to the Supreme Court. He virtually never set foot in an American synagogue – he says that he left synagogue one Yom Kippur because he felt it was dishonest to be among Jews sincerely praying for forgiveness when he was not – and, during his professional life, he essentially eliminated any connection to Jewish life.
Nonetheless, he never distanced himself from his Jewish identity, calling himself “a believing unbeliever,” refused to change his Jewish name in response to requests by his prestigious New York law firm (he was the first Jew ever hired there), and worked to defeat a 1922 proposal by the anti-Semitic dean of Harvard to limit Jewish enrollment there. He drew closer to his Jewish heritage toward the end of his life, even asking an Orthodox former clerk to recite kaddish for him at his funeral and, as we shall see, he was a committed Zionist.
Some academics characterize Frankfurter as lacking concern for religious freedom in general and for the minority rights of his fellow Jews in particular. They begin by citing his majority opinion in Minersville School District v. Gobitis (1940), in which he upheld the right of a school system to expel Jehovah’s Witnesses students for refusing to salute the flag and recite the Pledge of Allegiance.
Worse, when the Court overturned its ruling three years later in West Virginia Board of Education v. Barnette (1943), Frankfurter wrote a ringing dissenting opinion. However, Frankfurter cogently began his dissent by noting that:
One who belongs to the most vilified and persecuted minority in history is not likely to be insensitive to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court’s opinion, representing, as they do, the thought and action of a lifetime. But, as judges, we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.
Thus, his opinions had nothing to do with a lack of sympathy for his fellow Jews but, rather, manifested his consistent principled fidelity to his core constitutional belief that the role of the Court is not to opine on the “wisdom or evil of a law” but, rather, only to determine “whether legislators could in reason have enacted such a law.”
A more significant source of Jewish discontent with Frankfurter is rooted in his “virtual silence during WWII” notwithstanding his ability to advocate on behalf of Jews with his friend, the president. Specifically, he apparently took no action to intervene with FDR against Secretary of State Cordell Hull’s shameful recommendation to bar the St. Louis, with 900 Jewish refugees aboard, from docking in Miami. (The Jews were ultimately returned to Europe, where most were murdered by the Nazis.)
Some critics even go so far as to hold Frankfurter collaterally responsible for FDR’s refusal to bomb the tracks to Auschwitz in 1944 – though he had personally interceded six years earlier to save his Uncle Solomon from the Nazis in Vienna.
However, the biggest censure of Frankfurter by some Jews and others comes as a result of his role in the infamous “Karski Affair” in July 1943. FDR sent him to interview Jan Karski, a member of the Polish resistance who had been smuggled into the Warsaw Ghetto and a camp near the Belzec death camp in 1942. Karski was arguably the first eyewitness to the atrocities of the Holocaust to “go public.” Reporting back to FDR, though, Frankfurter said that he was skeptical of Karski’s account and could not credit Karski’s descriptions of ghetto roundups, mass starvation, shootings, and gassings.
Yet, it is worth noting that Frankfurter’s memoirs reflect that he decided to accepted FDR’s Supreme Court appointment because recent events in Germany and the “infection” of anti-Semitism made it impossible for him to decline. As a trusted advisor, Frankfurter regularly urged the president to help resettle European Jews to the United States. Nevertheless, to maintain his relationship with the president and his ability to influence him, Frankfurter had to carefully walk the line between zealous advocacy on behalf of the Jews and provoking the chief executive.
While many contend that Frankfurter should have used his influence to greater effect – and they may well be correct – it is easy to be judgmental decades after the fact, particularly since it is now well known that FDR had already “hardened his heart” to the plight of Europe’s Jews.
As to Karski, Frankfurter, drawing on his broad background as a lawyer and jurist, was simply unconvinced by Karski’s evidence, which, unfortunately, was indeed inconceivable until it was proven that the Nazis had, indeed, sunk to such unimaginable depths. As he later explained: “I did not say that he was lying, I said that I could not believe him. There is a difference.”
Moreover, Karski did subsequently meet personally with FDR, who refused to take any action in response to his testimony. Thus, Frankfurter’s assessment that pushing the issue would not sway the president was, in retrospect, arguably correct.
Of course, as the truth of the Shoah emerged and became more broadly known, Frankfurter actively supported Jewish survivors. In this interesting December 14, 1946 correspondence on his Supreme Court letterhead, he writes to author, Holocaust survivor and Jewish advocate Dr. Hans F. Abraham:
You are kind to send me a copy of your essay “Public Offices and Public Officers in USA and in Germany.” Such are the paradoxes of life that one of the consequences of the brutal tyranny of Hitler is the contribution made to American scholarship by those who have found opportunities to pursue their professions in this country.
Moreover, Frankfurter was a lifelong committed Zionist, beginning with his association with Brandeis, who enlisted him into ZOA membership and a leadership position with the Parushim. (Many suggest that Frankfurter’s “Zionism” was not heartfelt but was merely a manifestation of his personal esteem and affection for Brandeis.) The Parushim, a secret Zionist society whose purpose was to take concrete action to advance the cause of autonomous Jewish nationality in Eretz Yisrael, was arguably the first modern militant Zionist organization in America which, as an elite educated Zionist military group, challenged the belief prevalent in early 20th century America that Zionism somehow constituted an unpatriotic “dual loyalty.”
Frankfurter also joined Brandeis in an important and successful lobbying effort to convince President Wilson to support the Balfour Declaration. He participated in the founding conference of the American Jewish Congress in Philadelphia in 1918, creating a national democratic organization of Jewish leaders from across the United States, and served as a Zionist delegate to the Paris Peace Conference of 1919.
Through T. E. Lawrence (a.k.a. “Lawrence of Arabia”), he also established a relationship with Arab delegation head Emir Feisal and received Feisal’s historic March 1, 1919 letter calling the Zionist proposal “moderate & proper” and wishing Jews “a hearty welcome home.”
In this historic correspondence from a critical period in Zionist history, Frankfurter, offering a behind-the-scenes look at the building of American support for an independent Jewish state, writes to Rabbi Stephen Wise regarding Senate recognition of Great Britain’s authority over Eretz Yisrael:
I have rather disquieting news from London about prospects of Peel Com[mission]. It is most important to get some good speeches in Senate by informed Senators and backed by [Senators] Borah and Pittman if possible – hoping that for sake of international relations Gr. Britain won’t substitute Jewish question for the former Irish bitterness in U.S.A.
On reflection I feel we should submit [Secretary of State] Hull’s com[mittee] memorandum to Com[mission] and…circulate it as such, after making concessions called for in Weiz[mann’s] cable of Dec. 25…
The Peel Commission, a British Royal Commission of inquiry headed by Earl Peel, arrived in Eretz Yisrael on November 11, 1936, charged with determining the cause of the Arab riots in Eretz Yisrael in 1936 and judging the merits of the respective Arab and Jewish grievances. Chaim Weizmann addressed the commission on behalf of the Jews of Eretz Yisrael, and the Mufti of Jerusalem, the infamous Haj Amin al-Husseini, testified for the Arabs, opposing any partition of Arab lands with the Jews and demanding a full and immediate cessation of Jewish immigration.
On July 7, 1937, the commission published a report that, for the first time, recommended the partition of Eretz Yisrael and population transfers between Arabs and Jews (with the Jews receiving only a small part of the aggregate territory); determined that increased Jewish emigration to Eretz Yisrael would not be economically detrimental to the Arab population; and recommended that the British Mandate be eventually abolished – except in a “corridor” surrounding Jerusalem, stretching to the Mediterranean Coast just south of Jaffa.
There was heated disagreement among Zionist leaders over the commission’s recommendations, particularly with respect to boundaries: Weizmann and Ben-Gurion were strongly in favor, while the Zionist Organization of America, led by Rabbi Wise, opposed it. The Jewish Agency ultimately accepted the Peel partition, but the Arabs quickly rejected it.
Although it was initially endorsed by Prime Minister Neville Chamberlain, the British government, which tried to appease the Arab population by greatly limiting Jewish immigration from Europe, ultimately rejected the commission’s recommendations as unfeasible.