“In a Democracy We Should Distribute the Lawyers”: The Campaign for a Federal Legal Service, 1933--1945

“In a Democracy We Should Distribute the Lawyers”: The Campaign for a Federal Legal Service,... ABSTRACT To build its many unprecedented bureaucracies, the American New Deal heavily relied upon recent graduates of elite law schools, in a break with prior practice and to the increasing annoyance of congressmen and senators. To head off an attempt to entrust the selection of government lawyers to the Civil Service Commission, in January 1939, President Franklin D. Roosevelt appointed a committee, chaired by Stanley Reed and including two other Supreme Court Justices, Felix Frankfurter and Frank Murphy, to study the question. In April 1941, he accepted the recommendation of the lawyers on the “Reed Committee” and created the Board of Legal Examiners, headed by Solicitor General Francis Biddle (soon replaced by Charles Fahy) and managed during its first, crucial year by Herbert Wechsler, who was on leave from the Columbia Law School. As conceived especially by Frankfurter, the Board’s mission was to create an American counterpart to the British Civil Service, in which lawyers advanced to increasingly important posts throughout the executive branch. Although wartime conditions hampered the Board, it administered a national exam that provided greater access to government jobs than had the New Deal’s version of an “old boys network,” which drew heavily upon the law faculties of Harvard, Columbia, and Yale. Congressional hostility persisted, however, and was joined by the opposition of a powerful veterans’ lobby. The Board’s response to this pressure is instructive for a time when government lawyers and other professionals are being denounced as members of an anti-democratic, Deep State. No one was a closer ally to Felix Frankfurter and Thomas Corcoran than James H. Rowe, Jr. Yet, on a January day in 1939, he balked. “This is none of my business and I may be getting my ‘neck out,’” the presidential assistant protested, “but the hell with it. I need the job but this is more important than any job.” It was, in fact, “the most important thing to the New Deal” Rowe had encountered since coming to Washington in 1934 as legal secretary to the retired Justice Oliver Wendell Holmes. Earlier that day, Corcoran had appeared at the White House with a plan to create a civil service system for the New Deal’s lawyers. He and Frankfurter had come up with the proposal, in which the Solicitor General of the United States would oversee the hiring, promotion and transfer of government lawyers, to parry a bid by the Civil Service Commission to bring them within its domain, an alarming prospect for the duo, who believed it would halt the migration of able young lawyers to Washington. Even Frankfurter’s plan, Rowe feared, would destroy the informal system of recruiting lawyers that had flourished during Franklin D. Roosevelt’s presidency. “As you know and very few others do,” he lectured Corcoran, “the ‘shock troops’ of the New Deal—the men who really get the tremendous volume of work done that must be done—are the young lawyers, a number of whom you brought into the government.” As it was, general counsels struggled to land top law graduates. Corporate law firms offered “real money” and “eventual security and respectability.” The general counsels offered the chance to serve the country—“young men are impressed with that”—and to improve the lives of “100 million people,” but only if one’s agency got a decent budget. Even then, a lawyer’s “head may be chopped off tomorrow” in some partisan melee. Presently, the decision to take a government job was a coin toss, Rowe claimed. If an exam were interposed between top graduates and the New Deal, Wall Street would win every time.1 Rowe spoke up at a crucial moment in the history of the legal profession and the American state. Then in its sixth year, the New Deal had brought extensive, intrusive, centrally directed public bureaucracies to the peacetime United States and empowered unelected officials operating beyond the effective control of Congress and the President. In this, as the historian Kirin Patel observes, the New Deal was “but one of many national variations stressing selective state intervention, business-led cartelization, and a new role for labor and consumption in industrial relations.”2 Yet it remained distinctive in important respects. First, as the historian Jerold Auerbach observed, it relied heavily on lawyers recruited from a legal profession centered in civil society rather than the state.3 Second, the political parties the New Dealers challenged were coalitions of geographically dispersed, localistic units, bound together largely by patronage, rather than groups organized at the national level around policies.4 Professional politicians particularly prized law jobs and resented the New Dealers’ attempt to create a “federal legal service” that brought meritocractic, “bureau-led” hiring to the legal staffs of the federal government.5 Resentment boiled over into resistance in the latter half of FDR’s second term as the politicans came to see meritocractic hiring as part of a larger scheme to shift power from Congress to the President and his “janizaries.”6 Although the campaign for a federal legal service transpired during a distinctive moment in American political history, it has implications for a general and persistent problem for governance in the United States. Lawyers, like other professionals, claim expertise that can be fully assessed only by members of their own community of the competent. But because the technical authority lawyers assert is often hard to distinguish from their normative beliefs, and because their pronouncements often determine matters of great public moment, other political actors are likely to contest attempts to put the selection of lawyers “above politics” and “on the basis of merit alone.”7 The practical effect of doing so, they charge, would be to cede public power to an exclusive profession or, worse, an ideologically defined subset thereof. While a scheme to recruit “shock troops” for the New Deal would never do, would a system that brought lawyers as diverse as the political nation pass muster? The answer may help those who in other periods seek to defend the authority of government lawyers from critics who would deploy populist antitstatism against them for personal and partisan ends. I. Before the New Deal lawyers “The duties of all public officers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance.”8 Andrew Jackson’s rationale for the rotation of offices still guided the selection of government lawyers a century later. Few of the 3,358 “positions of a legal nature” in the federal government in 1932 were thought to require expertise or ability beyond the ken of the average lawyer. As the Civil Service Commission put it, they tried cases, conducted hearings, drafted legal opinions, examined the legality of transactions, and performed all the other duties that “ordinarily fall to the lot of a practitioner.”9 Few were graduates of elite law schools. Clerks promoted from nonlegal to legal positions filled many lower posts. Patronage appointees occupied top positions as long as the power of their political sponsors lasted. The constant turnover in the top jobs made the law, in the judgment of Leonard D. White, a pioneer in the field of public administration, “the most backward of all the professions in the employ of the Federal Government.”10 About one quarter of the federal law jobs, the bulk of them in the Veterans Administration and Interstate Commerce Commission (ICC) were filled through the Civil Service Commission’s elaborate examination and certification procedures.11 When an agency wanted to hire a lawyer, it notified the Civil Service Commission, which then sent an announcement of an examination to law schools, bar associations, state and municipal governments, newspapers, and post offices. Applicants were to describe their educational background and professional career, give references, and sit for a written examination prepared and graded by the Commission’s small staff of legal examiners. The applicants were quizzed on basic common-law subjects rather than an agency’s organic statute or administrative law in general. All who received a passing grade—70 out of 100—were placed, in rank order, on a “closed” register, which officials of the requesting agency were not permitted to consult. Under “the rule of three,” the Commission sent over the names and files of the three highest-ranked eligibles on the register. The officials might try to persuade the Commission that none of the three would do, but if they did, they could choose only from among the next three highest eligibles on register.12 Departures from this basic procedure were made to accommodate two facts of political life. First, since the last days of the Coolidge administration, veterans received a two-part preference. They, and in some cases their spouses, received extra points on their written examinations. Able-bodied veterans received an extra five points and disabled veterans received ten points. Widows of veterans and the wives of disabled veterans also received ten points. An able-bodied veteran, therefore, needed only a score of 65 to pass a written examination, while a disabled veteran or a widow needed only 60. In addition, any holder of a ten-point preference with a passing score jumped to the top of the list. Thus, a ten-point preference holder with a score as low as 60 was not only eligible for appointment, but the Commission would certify him or her before all competitors lacking the preference, no matter how high the others’ scores.13 Judging from registers compiled during the New Deal, holders of the preference enjoyed an insurmountable advantage over other applicants. The first thirty-three positions on a register for junior attorneys prepared for the Federal Communications Commission (FCC) in 1935 went to disabled veterans, of whom ten would not have received a passing score but for the ten-point preference. Other veterans took the next three places. The candidate with the highest score on the exam (99.75) was ranked thirty-seventh on the register. Holders of the ten-point disability preference claimed the first three spots for a senior attorney job, the first fourteen spots for an attorney position, and the first sixty eight for an assistant attorney post. The first twelve slots on a register prepared for an attorney position at the ICC in 1938 went to holders of the ten-point preference, and fifty four other eligibles received a five-point preference. To one skeptical observer the register looked like “the roll of an American Legion convention.”14 A second political constraint was geographic. The first civil service law directed that federal jobs be apportioned “among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census.” Starting in 1931, this directive was implemented in the following way. Eligibles from any state or the District of Columbia with more than its share of appointments went to the foot of a register, with the exception of holders of the veterans’ preference, who stayed where they were. Not until all of the eligibles from the underrepresented states were certified would the Commission proceed to the eligibles from one of the overrepresented states. Maryland, Virginia, and the District of Columbia invariably were overrepresented. They might be joined by as many as fifteen other states, depending upon the constantly changing balance of hires and separations throughout the entire civil service. In most years, a Californian with a score of 70 would be certified before a Virginian with a perfect score.15 Not surprisingly, the top lawyers of agencies subject to the Civil Service Commission attempted to avoid its procedures whenever possible. A common resort was a loophole involving transfers of government workers from clerical to legal positions. Because the clerks had been examined when they first joined the federal workforce, they did not have to repeat the process if they were promoted into a legal post. The Civil Service Commission simply verified that they had acquired a law degree, usually from one of the many night (or “sundown”) law schools in the District of Columbia.16 Of the federal legal positions not “covered into” the civil service, some (including those in the Federal Trade Commission, the Bureau of Prohibition in the Department of Justice, and the Reconstruction Finance Corporation) were set apart by statute. Other posts were immune because their occupants were subject to senatorial confirmation. The remaining positions, accounting for about sixty percent of all lawyers in the federal government in 1932, were in agencies listed on Schedule A of the Civil Service Commission’s published rules. Their status was tenuous, for an executive order could subject them to civil service rules at any time. Such was the status of all law jobs in the federal departments (save for a few bureaus in Treasury and Justice), the Board of Tax Appeals, the Federal Power Commission, and the Federal Radio Commission.17 Even at “Schedule A” agencies, chief legal officers promoted clerks into entry-level legal positions because they already understood the routines and missions of their bureaucracies. In 1903, a local law professor observed that his students moved into legal positions after having made themselves “necessary to the political chiefs of their respective departments” as clerks.18 In 1906, a decade before the ICC put its lawyers within the civil service, at least four of its five legal positions were held by former clerks. The clerical route was open to women as well. After graduating from George Washington University’s law school in the 1920s, Louise Foster was promoted from a clerical job to a junior attorneyship in the Department of Justice. Ultimately she won a full attorney post. By the 1930s it seemed to one newspaperman as if “almost every other clerk, stenographer and typist, man or woman, in the government service” was enrolled in a law school.19 The other great source of applicants was a strategically situated Member of Congress or other party chieftain. Because “lawyers as a class are politically active and politically valuable,” a civil service examiner explained, “political expediency dictates that legal positions be kept as plums… . By proper rotation and manipulation a comparatively small number of plums flavors a large number of puddings.”20 The post of general counsel in a bureau or commission or solicitor in an executive department was the most desirable, but even a low-salaried assistant or associate attorneyship might satisfy a constituent. The competition could be particularly fierce at the start of a presidential term, when congressmen advanced the claims of state parties that had turned out voters for the prevailing candidate. Consider the case of Harold Stephens, a mid-career lawyer who in March 1933 was completing two years of graduate study at the Harvard Law School. While traveling from Cambridge to Durham, North Carolina, to interview for a teaching job, Stephens stopped over in Washington just as the death of Roosevelt’s original choice for Attorney General set off a scramble for jobs at the Department of Justice. His starting point, as he handicapped his chances with the new nominee, the party wheelhorse Homer Cummings, was that “geography always plays an important part in a political choice.” Utah had gone Democratic in 1932 for the first time since 1916, and this augured well for his chances. Then again, two Utahns already held plum jobs in the new administration; had the Beehive State already received its due? In the end, Cummings hired Stephens as Assistant Attorney General for the Antitrust Division, in which capacity he often quarreled with young New Deal lawyers.21 However they got onto a legal staff, government lawyers tended to fall into two groups. The first saw government service as a stepping stone to something better. Stephens, for example, started angling for a federal judgeship almost as soon as he joined the Department of Justice. More common were departures for private practice and the chance to cash in on experience and contacts gained in government. Probably the largest contingent of these “door revolvers” at the start of the New Deal consisted of the alumni of the Bureau of Internal Revenue (BIR). In 1917, the Boston lawyer Arthur Ballantine left a corporate practice to serve in the bureau, first as a special attorney and then as its solicitor. By 1919, he had founded the New York City firm that bore his name for the rest of the century. Less eminent lawyers pursued the same strategy. In 1919, one told Commissioner of Internal Revenue Daniel Roper that his interest in a job was strictly “mercenary,” that he was out “to develop a practice in taxes.” Roper replied, “That is what we are all doing.” Throughout the twenties, scores of BIR lawyers, from lowly assistant attorneys to distinguished general counsels, followed suit.22 Still, some made a career of government lawyering. Typically, they were the object of condescension by private practitioners. Charles F. Diggs, the scion of an old Washington family, scoffed at the thought that he might remain at the Pension Bureau after he received his law degree from Georgetown in 1902. “If, sir, I had not within me ambition’s spark,” he informed his superior, “I might be content to accept the four walls of this Bureau as the arena in which to win such victories as are permitted here, but the field is far too small to encompass my hopes.” Diggs resolved to “leave the subtle influence and ease of governmental life and pitch my camp on the broad field which lies beyond the confines of this narrow structure.”23 Even practitioners who appreciated the virtues of the “lifers” tended to damn them with faint praise. When Robert H. Jackson left his practice in Jamestown, New York, to become general counsel of the BIR in 1934, he assumed that “a man who took a government job was probably not a first rate lawyer.” The BIR’s lawyers surprised him, to a point. “They didn’t have, perhaps, the type of ability that would attract clients,” he explained, “but they were competent and efficient and tried to be fair.” Jackson’s predecessor, E. Barrett Prettyman, was of similar mind. Forced to fire forty lawyers at the start of FDR’s presidency, Prettyman insisted on keeping many of the “dumb” but methodical ones. “There is much work in a great outfit like the federal tax system which must be done by slow men, content to do the same thing every day, lacking in ‘ambition’ and glamour, but who are accurate, careful, reliable,” he maintained. “So-called ‘smart’ people go crazy at such jobs.”24 What hiring officers rarely looked for were the indicia of merit that large corporate law firms were already using to select their associates, grades at Harvard, Columbia, Yale, and other “case method” law schools. At the turn of the century, Paul D. Cravath, for example, ordained that the associates in his Wall Street law firm should “be recruited, so far as possible, from men just out of the law schools.” According to the firm’s historian (his partner, Robert Swaine), Cravath “believed that a man who had not attained at least the equivalent of a Harvard Law School ‘B’ either had a mind not adapted to the law or lacked purpose and ambition; in either case, the man was not for the Cravath office.” And because Cravath was convinced “that the office and its clients would get the best service from men confident of unimpeded opportunity for advancement,” he established a policy of “filling advanced positions from the ranks of the young men who enter the office as beginners.”25 Only a handful of the federal government’s top lawyers had followed Cravath’s lead since the turn of the century. Invariably, they were themselves members of New York City’s corporate bar coaxed into public service by socially elite members of the Republican Party. Henry Stimson set the mark when serving as U.S. Attorney for the Southern District of New York under Theodore Roosevelt. Stimson rescued Felix Frankfurter from the drudgery of Hornblower, Byrne, Miller & Potter and Emory Buckner from the Cravath firm.26 George Wickersham experimented with a merit system as William Howard Taft’s attorney general. He invited applications for two jobs in the Justice Department from “the younger graduates of the leading law schools” and appointed an ad hoc committee of Justice Department lawyers and civil service examiners to sift through the sixty-five lawyers who responded. The committee administered no formal written examination. Instead it “investigated the records of the applicants, corresponded with the persons to whom they had referred, studied samples of legal briefs and law memoranda previously written by them, and held personal conferences with such as were to be found most promising.”27 Wickersham was so satisfied with the resulting appointees—recent graduates “of high standing” from Columbia and Harvard—that he recommended the practice be made permanent. His successors, however, reverted to the earlier practice of appointing the politically connected. Harlan Fiske Stone’s hiring of two recent members of the Columbia Law Review to reorganize the Justice Department’s War Transactions Section was an exception, as was Emory Buckner’s recruitment of elite law graduates while serving as U.S. Attorney for Southern District of New York.28 Within the legal academy, the figure most intent on seeing that young, Wall-Street-grade legal talent find its way into the federal government was Harvard’s Felix Frankfurter. Frankfurter had some success in placing graduates during the early years of the Federal Trade Commission and still more during World War I, when his talented protégé Benjamin V. Cohen took a job at the U.S. Shipping Board. During the Republican twenties, however, his influence in Washington waned. He supplied Buckner with recent graduates and George Wickersham with young lawyers for the research staff of the National Commission on Law Observance and Enforcement.29 The creation of the Reconstruction Finance Corporation (RFC) in 1932 under the chairmanship of his friend Eugene Meyer opened up a new avenue of influence that augured still greater things to come. Perhaps Frankfurter’s most eventful placement at the RFC was Thomas G. Corcoran, who left the Wall Street firm of Cotton and Franklin to take a job there in 1932.30 II. The coming of the New Deal lawyer The New Deal quickened the pace of hiring government lawyers and made the presence on legal staffs of recent graduates of elite, case-method law schools a sudden, remarkable phenomenon. “A plague of lawyers settled on Washington,” an agribusinessman who battled them at the Agricultural Adjustment Administration (AAA) unhappily recalled. “They all claimed to be friends of somebody or other, and mostly of Jerome Frank and Felix Frankfurter. They floated airily into offices, took desks, asked for papers, and found no end of things to be busy about.”31 The number of lawyers in the federal government grew by 60% between 1932 and 1939, when 5,368 lawyers, or about 3% of the nation’s total, had Uncle Sam for a client. From the end of World War I to the New Deal, appointments to new positions or to replace turnover in existing ones averaged between 300 and 400 a year. Appointments during the New Deal were well above that rate: 700 in 1936, 523 in 1937, and 676 in 1938.32 Although most government lawyers continued to work in “old line” departments and agencies, most of the growth in legal positions came in New Deal agencies and departments, such as Interior and Treasury, headed by New Dealers. “Alphabet agencies” engaged in waves of hiring from the first months of the New Deal. Within a year of their creation in 1933, for example, the Agricultural Adjustment Administration had 132 lawyers, the NRA had 140, the Public Works Administration (PWA), 200, and the Tennessee Valley Authority (TVA), 42. The Securities and Exchange Commission (SEC) was the biggest new employer in 1934. It had 172 lawyers by 1936 and 310 by May 1939. The FCC was also created in 1934, but it drew upon the preexisting legal staffs of the Federal Radio Commission and the ICC, which had previously regulated telephony and telegraphy. The Social Security Board’s legal staff would remain of modest size, with 35 lawyers in October 1936 and 86 in May 1939, but a second product of the legislative campaign of 1935, the National Labor Relations Board (NLRB), would become one of the federal government’s ten largest before the decade was over. Its legal staff had only 45 legal positions in 1936, when the Board was mired in court challenges. After the U.S. Supreme Court declared its statute constitutional in April 1937, however, a burst of hiring ensued. By May 1939, some 226 lawyers worked for the NLRB.33 The new positions were, overwhelmingly, created outside the classified civil service and filled by general counsels implacably opposed to its procedures. “Every Government organization which has work to do outside the routines established before this Administration came into power,” Corcoran told a presidential assistant in 1937, “has trouble with or is afraid of the present rules of the Civil Service Commission adapted to old line departments.”34 The first obligation they shirked was the veterans’ preference, which, although statutory, required policing by the Commission to be effective.35 In 1939, when holders of the veterans’ preference made up about 20% of all new appointments to the classified civil service (legal and nonlegal), they accounted for only 18% of the TVA’s lawyers, 13% of the PWA’s, 12% of the SEC’s, 7% of the NLRB’s, and 3% of the Social Security Board’s. Abe Fortas’s Bituminous Coal Division (BCD) had no veterans’ preference holders at all.36 Freedom from the Civil Service Commission would not have brought the general counsels any closer to a staff meeting the new meritocratic standards if it meant submission to congressional claims of patronage. In fact, most general counsels yielded to political pressure to some degree “because of the necessity of harmonious relations to secure necessary appropriations.”37 Many felt obliged to ask candidates for “clearances,” letters from Democratic congressmen or local party chieftains, to ensure that no traitor to the party was rewarded for his treachery.38 At the NLRB, for example, clearances were not required, but the Board was said to “feel happier” if it had them on file as “patronage alibis.” “If Congress starts worrying about how we aren’t playing ball with the politicians,” the SEC’s Allen Throop explained to a recruit, “we can say that somebody sponsored you.” Knowledgeable observers thought them at most a nuisance. “While humiliating and to some degree deterring to good men,” one explained, they were “not a serious impediment.”39 General counsels responded to patronage seekers with a combination of ingenuity, accommodation, and tact. The Social Security Board’s general counsel, Jack Tate, confessed to making “a few concessions to Congress” but claimed he sent his patronage hires into the field to handle mundane work until such time as they could be “pruned.”40 Chester Lane, the SEC’s general counsel from 1938 to 1942, was puzzled when the generally sympathetic congressman Clifton Woodrum sent over an obviously incompetent lawyer and followed up with a letter and phone call. Lane dispatched his deputy to Woodrum’s office with the applicant’s file to make sure the congressman realized just how bad the candidate was. The congressman responded: Now, look, I know this man’s no good. I haven’t the least interest in his being appointed. He comes from my home district and I’ve got to go through the motions. You tell Mr. Lane that he can forget about this file and that I don’t give a damn. What’s more, you tell him one thing; he doesn’t seem to know his way around here yet … . Nobody in Mr. Lane’s position ought ever to take a phone call from a Congressman on a matter of this kind without calling him back twenty minutes later and asking him if he really meant it. Of course I didn’t mean it, but I pounded on the desk, and shouted into the telephone, because the guy was standing right beside me. Lane claimed to have made only two patronage hires during his tenure. One, appointed at the urging of Attorney General Frank Murphy, proved to be a “headache”; the other, proffered by SEC Chairman Edward Eicher, a former congressman, turned out to be quite able.41 New Deal legal staffs had far fewer graduates of Washington law schools and far more alumni of the three leading “case method” law schools (Columbia, Harvard, and Yale) than did their “old-line” counterparts. At the Treasury Department, for example, 63% of appointments to the legal division before May 10, 1934, went to graduates of Washington law schools. The largest single “feeder,” with 48 alumni, was the National Law School, which was not accredited by the American Bar Association (ABA). Columbia, Harvard, and Yale graduates accounted for only 11, or 4% of the total.42 The situation changed dramatically after the former Columbia law professor Herman Oliphant became general counsel in 1934. His staff prepared qualifications for each grade of attorney and sent them to the Civil Service Commission. Whenever a new lawyer was to be hired, Oliphant’s office would send the Commission a sworn statement of the candidate’s education, training, and legal experience and asked its legal examiners to verify that the candidate met the relevant standards. Although the examiners invariably did, the charade proved useful. If some congressman were to present Oliphant with an obviously unqualified constituent, he could explain that the Commission would never approve the appointment. Between 1934 and 1939, the Treasury’s hiring of Washington law graduates fell by two thirds, to 21%, and its hiring from Columbia, Harvard, and Yale increased fourfold, to 18%. Harvard replaced National as the largest trainer of its lawyers.43 The general counsels of the alphabet agencies fared even better than Oliphant. Thanks to the special dispensation its general counsel obtained in 1935, graduates of Harvard, Columbia and Yale accounted for 42% of the FCC’s legal hires; graduates of Washington schools accounted for only 12%. Twelve lawyers were hired from Harvard; none were alumni of National. Graduates of the three elite schools were also well represented in hiring between 1934 and 1939 at the SEC (37%), the NLRB (32%), the Labor Department (30%), and the Social Security Board (18%). (In contrast, they accounted for only 11% of the Department of Agriculture’s hires.) Of the 58 lawyers Thurman W. Arnold hired during his first months as Assistant Attorney General for the Antitrust Division in 1938, one third were from the elite law schools. Yale was the best represented—a rarity, given Harvard’s much larger student body, and the result of Arnold’s time on the Yale law faculty. Washington graduates were somewhat more numerous at the NLRB (17%), perhaps because its general counsel, Charles Fahy, was a Georgetown law alumnus. Even at the NLRB, however, Harvard provided the most lawyers (36); National, only eight.44 A combination of factors persuaded the elite law graduates that, as Benjamin Cohen put it, “the holy grail was no longer doomed to be exclusively in New York.”45 Corporate law firms stopped hiring and cut salaries just as general counsels of the first New Deal agencies were assembling their staffs. Government recruiters offered the opportunity to do something about the worsening depression at starting salaries at or above those in leading New York firms. Jewish and Catholic law students, excluded from most Wall Street firms, had a better chance of landing a job at an alphabet agency.46 The responsibility given them was extraordinary. “It was a very heady experience to sit down and represent the government on one side of a transaction involving some large bank like the Detroit National … and watching $15 or $20 million pass across the table to brace up a bank,” recalled a lawyer who went to the RFC a year after graduating from the Harvard Law School. Had he and his fellow RFC recruits joined the law firms of opposing counsel they “probably wouldn’t have been able to get into any of their offices.” As government lawyers, however, “we were meeting them on an equal basis.”47 Soon, networks joined leading law professors at Columbia, Yale and, Harvard and the chief legal officers in Washington. Thomas Emerson occasionally traveled to the law schools to recruit lawyers for the NLRB’s Review Division. He and the labor board’s other associate counsel frequently relied upon the recommendations of “friends and colleagues in the law schools.” After an initial and somewhat haphazard round of recruitment at the Social Security Board, Jack Tate “relied almost exclusively upon persons recommended to him by friends and former colleagues in the better law schools.” The SEC’s Chester Lane regularly visited “the better law schools” around Christmas—the traditional interviewing season for the Wall Street firms—to consult with the dean, professors, and students.48 Thus, Mary Connor Myers, an attorney at the Department of Agriculture, did not wholly exaggerate when she advised female lawyers that they would do well to be “a relative of, or at least a protégé of, a professor.” The most likely to succeed “would be a cousin of Felix Frankfurter or of the Yale law faculty,” she counseled. “If she could be a cousin to both Felix Frankfurter and the Yale law faculty, her career would be assured.”49 As Myers’s conceit suggests, one law professor above all others was renowned as an entrée to the New Deal. Felix Frankfurter had long experience in placing students, the large graduating classes of the Harvard Law School to draw upon, a shrewd judgment of character, an indomitable will, a talent for self-promotion, and the personal friendship of the president. As Jerold Auerbach and Eugene Bardach ventured in their study of the careers of law review editors, “it would be difficult to overstate Frankfurter’s influence as a teacher and spiritual tutor (to say nothing of his concern as a patron and talent as a job-broker) to the large cohort of graduates who went to work for Roosevelt.”50 The New York Herald Tribune claimed Frankfurter influenced the appointment of at least 100 New Dealers. Fortune declared him “the most famous legal employment service in America.” Newspaper columnists and correspondents investigated Thomas Corcoran’s efforts as the professor’s agent in Washington.51 And all this speculation was far from groundless. Corcoran’s influence can be documented in placements of lawyers at Arnold’s Antitrust Division, the ICC, the FCC, the National Power Policy Committee, the PWA, the Rural Electrification Administration, the RFC, the SEC, and the TVA, whose general counsel told Frankfurter that, when it came to hiring, “my respect for your judgement and kindly interest is such that one adjective is always a sufficient answer from you.”52 Old-guard party leaders in Congress were bound to resent what Vice President John Garner called “all this handing the top cards to boys who had never worked a precinct.”53 They became openly hostile when it seemed that the New Deal lawyers had become a “palace guard” or “janizariat” for a president who trampled on their prerogatives and sought vengeance upon his opponents.54 Corcoran, who became a de facto presidential assistant in 1935, was a bête noire. His scornful treatment of a congressman who abandoned the administration at a crucial moment during the passage of the Public Utility Holding Company Act was front-page news throughout the land. His notoriety grew as he lobbied for the “Court-packing” plan of 1937, directed Roosevelt’s attempted “purge” of conservative Democrats in the 1938 primaries, and organized the third-term movement.55 Observing events from his federal judgeship, Harold Stephens fretted that the Democratic Party might fall into the hands of “the Corcorans and the Cohens, who regard themselves as economic Messiahs destined to reform the country without regard to the democratic process.”56 In 1938 Congressional Democrats struck back. Earlier in the year, the solicitor of the Department of Agriculture, Mastin White, announced that henceforth he would hire only graduates of law schools accredited by the ABA. Over ninety schools qualified, including George Washington, Georgetown, Catholic, and Howard, but the lower tier of Washington law schools did not. Government clerks were well represented in the student bodies of the excluded schools, and some of them owed their day jobs to congressional sponsors.57 To meet the challenge, National’s dean drafted a bill to forbid discrimination in the hiring of lawyers based on the law school of the applicant. Morris Sheppard (D-Texas) introduced the bill in the Senate. It was said to have the backing of congressional secretaries, many of whom attended “sundown law schools” after their day jobs.58 George D. Riley, a columnist for the Washington Times-Herald who posed as the champion of the common federal worker, lauded the bill as a way to prevent “super-braintrusters” who “appear to live more on benzodrine sulphate rather than solid food” from supplanting the average lawyer.59 Other newspapermen complained that Corcoran had been operating “an employment bureau for Harvard Law School graduates” and that “no one has a chance for a good attorney job unless” he learned the law in Cambridge.60 When the bill came up for debate in the Senate in the summer of 1938, William King, an anti-administration Democrat, blasted the “bureaucrats in Washington, some of whom have graduated from Harvard or other so-called aristocratic institutions,” for appointing only graduates of “these special schools.” Lawyers “who work their way up,” King ventured, “perhaps know a great deal more than some of those now in office.” The bill died with the 75th Congress, but Sheppard reintroduced it in February 1939, and again it reached the Senate floor. Theodore Green of Rhode Island (a graduate of the Harvard Law School) pointed out that many institutions met the ABA’s quite reasonable requirements, such as two years of prelegal, collegiate education. Over forty states, including Sheppard’s home state of Texas, had committed themselves to comparable standards. Green demanded,“Why should departments of the Federal Government, who need the best-trained lawyers in the defense of the rights of the Nation and its citizens, have lower standards than the great majority of the States of the Union?”61 Sheppard and his allies prevailed over Green with broad, populist appeals. Under the Agriculture Department’s regulation, Charles Andrews of Florida declared, neither Abraham Lincoln nor Patrick Henry nor “the immortal John Marshall” could have become a government lawyer. Sheppard added that the measure would deny “the opportunity to serve the Government to those who have not been able to obtain … college training before studying law while earning their living.” It would establish a “class system” in appointments to the federal legal service and undermine “our democratic system of government, which stands on the basis of equal opportunities for all and special privileges for none.”62 The Senate passed the bill in July 1939, but only after Sherman Minton added an amendment that also banned discrimination based on race or religion. It was reported that Minton, an ardent New Dealer, had “insisted on his amendment with the idea [that] it would slow things down if not actually block final passage.” In this he apparently failed, for the House Committee on the Civil Service reported the bill to the full House on August 2, after deleting Minton’s provision. The bill came up for a brief debate on February 19, 1940, but ultimately failed to pass, the victim of what its supporters called “a series of bad breaks.”63 Sheppard died in April 1941; in the interim, the long-awaited report of a presidential committee provoked a wider debate on the establishment of a merit system for government lawyers. III. The Reed Committee In 1937, the President’s Committee on Administrative Management had recommended that the civil service be extended “upward, outward and downward to include all positions … except those which are policy-determining in character.” Although the committee did not mention lawyers, in June 1938 the Civil Service Commission obtained an executive order bringing Schedule A lawyers within the classified civil service as of February 1, 1939. Legal divisions across the federal government protested, and in August Solicitor General Robert Jackson convened a war council of solicitors and general counsels. “You must take a man unless you can convince them the man is not qualified for the job,” one unidentified attendee fumed. “No man wants to be dependent upon Civil Service Commission for the selection of individuals for a job.” Another volunteered that all present “would not hire at any price” many who managed to pass the Commission examination. A third declared, “We want lawyers that will go to bat for our program. [You] cannot determine that by an examination.” Despite such protests, Roosevelt let the quarrel continue for months, convinced that civil service reform was “good politics,” but unable to ignore his lawyers’ opposition. Finally, on the eve of the “covering in,” he accepted the suggestion of Corcoran and Frankfurter and appointed a committee to fashion a compromise.64 The President’s Committee on Civil Service Improvement was charged with assessing the status of many kinds of professionals on Schedule A—the prominent engineer Gano Dunn was among its members—but insiders knew its main mission was to decide what to do about the lawyers. Probably because Corcoran and Rowe proposed its members, the chairmanship of the committee went to Supreme Court justice Stanley Reed, who had been Corcoran’s boss at the RFC and who, as Solicitor General, had presided over a “dream team” of talented young lawyers, including Paul Freund, Warner W. Gardner, Alger Hiss, Charles Horsky, and Charles E. Wyzanski, Jr. Rowe thought that Felix Frankfurter, appointed to the Supreme Court just weeks earlier, would decline the offer of a place on the committee. Instead, he accepted. Corcoran and Rowe wanted Solicitor General Robert Jackson to represent the Department of Justice, but Attorney General Frank Murphy did instead. (Jackson would go on the committee after Murphy went to the Supreme Court.) Murphy, if no one else, considered himself an expert in civil service reform, because of the merit systems he instituted as mayor of Detroit and governor of Michigan and tried to bring to the Department of Justice.65 Nonlawyers included the engineer Dunn and Robert E. Wood, president of Sears, Roebuck, but two men from what Rowe called “the Civil Service clique” formed the most significant counterweight to the lawyers.66 The first was Leonard D. White, a University of Chicago professor, a leader in the field of public administration, and a Republican member of the Civil Service Commission from 1935 to 1937. The second was William H. McReynolds, a highly regarded civil servant, who served with Rowe as one of Roosevelt’s presidential assistants. Although McReynolds’s formal education ended in a Kansas grade school, he had displayed undeniable administrative talent as he rose from a $900 clerkship in the Post Office to the post of Administrative Assistant to Treasury Secretary Henry Morgenthau before joining the White House staff. He was the public administration scholars’ favorite example of a “new model” civil servant, one of a cadre of “general managers” who could be sent wherever the federal bureaucracy needed them most.67 The Civil Service Commission assigned one of its staff to perform purely ministerial duties and two others to assist the chairman and the committee on more substantive matters. In practice, however, government lawyers held the high ground. Reed had Warner Gardner detailed from the Solicitor General’s office to serve as his assistant and installed him in what Gardner remembered as “a magnificent corner office on the courtroom floor of the [Supreme] Court building,” within easy reach of Reed and Frankfurter. Oscar Cox, the assistant general counsel of the Treasury Department, helped part-time.68 All of the committee’s meetings and hearings were held on the lawyers’ turf, either in the Marble Palace or, in the case of the lone meeting outside Washington, in the U.S. Courthouse in Foley Square in Manhattan. Finally, because the general counsels and solicitors were largely satisfied with the status quo, any delay troubled them less than it did White and McReynolds. Three options emerged from the deliberations. First, Frank Murphy called for covering lawyers into the civil service, but only after it had been thoroughly overhauled along lines propounded by his pet faction of personnel experts. No other member of the committee seconded his proposal, which Rowe characterized to Roosevelt as “an incredible plan of his own which makes no sense and needs no discussion.”69 Second, Frankfurter, joined by Jackson and Reed, proposed the creation of a separate merit system for lawyers, run by the Solicitor General of the United States with a board of government lawyers, law professors, and practitioners. Third, McReynolds and White wanted lawyers covered into the regular civil service under existing procedures. The outlines of Frankfurter’s plan were apparent as early as May 1939 in a letter Warner Gardner sent to Rowe and another government lawyer who were holding out for the retention of the status quo.70 Gardner agreed that the Civil Service Commission lacked the expertise to assess “the natural ability and legal training” of third-year law students, but he thought that “an examining board, composed of a representative of the Commission, of certain of the agencies, and of a few law schools,” could create such a test. It could be administered in December and taken as a matter of course even by impending law graduates with no “definite intention of entering the government service.” The resulting register would not be ranked or closed. Instead, the examining board would estimate the federal government’s demand for lawyers and proceed down the list of top scorers to compile a register of perhaps three times the expected number of vacant positions. Hiring officers could select anyone on the register. Probably few “Congressional favorites” would make the cut, and any who did were likely to be “qualified in the sense of mental ability.”71 The report of an “Advisory Committee on Lawyers,” chaired by Henry Wolf Biklé, whom Frankfurter had unsuccessfully proposed to succeed Roscoe Pound as dean of the Harvard Law School, dispensed with a written examination but otherwise tracked Gardner’s proposal.72 It called for the creation of a board headed by the Solicitor General and composed of such government lawyers as he designated. Only students or graduates in the top half of their classes could be listed on the register, as well as office-trained lawyers who finished in the top 10% on their state’s bar examination. Applicants more than three years out of law school were to be excluded, as was anyone over thirty. Third-year students wishing to be considered for a government position would submit applications and references by early November and undergo interviews by regional advisory committees soon thereafter. The regional committees would rank each candidate as exceptional, good, fair, or unqualified and report back to Washington. The result would be an open register of from 650 to 1,000 lawyers, unranked and unaltered by veterans’ preferences or apportionment. It would appear early enough in the hiring season to give government law officers a fighting chance at the top graduates.73 For years, Frankfurter had argued that an American equivalent to the British civil service could be recruited from among the graduates of elite law schools. Like the Oxbridge-educated denizens of British ministries, they knew how to put “at the disposal of government that ascertainable body of knowledge on which the choice of policies must be based.”74 Indeed, in 1936 he argued as much to Biklé himself.75 Now Biklé’s committee prefaced its report with a statement embodying Frankfurter’s vision. “An observer of the functioning of governmental personnel in Washington is struck by the absorption in detail and the failure of most ‘policy-making’ executives to see their problem in the large or in its relation to other problems or objectives,” the committee explained. If anyone took a broader view, it was likely to be a member of the legal staff. Often “comparatively young and junior legal officers” invigorated their agencies with a “continual and refreshing” reference to the broad functions they were created to perform. These young lawyers possess a “rare and unstandardized” quality, a “combination of natural gifts and intellectual training,” that was “the life force of administration.” It could be assessed only by “the personal observation of one who knows its value and something of its characteristics.”76 White joined issue with the lawyers in his draft of the Reed Committee’s report. Earlier, in lectures published in 1935, White had urged the creation of an “administrator corps” of 2,500 civil servants who would make planning their “life-work.” None of them should be lawyers, he argued, because the study of precedent inclined them to look “backward rather than forward for guidance.”77 In his draft report, White also tried to put lawyers in their place. The law was “the most backward of all the professions in the employ of the Federal Government,” he declared. Few government lawyers considered public service a career, and their departures deprived agencies of “the essential attribute of continuity.” Yet that need not be the case. Lawyers were no harder to choose from among than were engineers, chemists, or other professionals, he argued, and they should be subject to the procedures applied to the civil service as a whole.78 As word of White’s draft spread, general counsels and solicitors renewed their demand that the status quo be retained. Only after Frankfurter dispatched Supreme Court clerk David Ginsburg to them with the warning that they had to embrace at least “some of the aspects of civil service” if they wanted to have any influence did they toe the line.79 At a hearing in December 1939, the SEC’s Chester Lane endorsed a merit system as long as it was administered by lawyers “of high professional standing,” produced an open, unranked register, and rejected the “arbitrary preferences” of the civil service.80 When he declared the selection of lawyers by the Civil Service Commission to be “contrary to the tradition in nearly every Anglo-American jurisdiction, which leaves determination of fundamental professional standards to the bar and to the courts,” White objected. By the same reasoning, he demanded, should not “medical men” in the federal government be selected only by other medical men? Lane’s answer—that he knew little about engineers or doctors, but a great deal about lawyers—was not quite satisfactory, so Frankfurter intervened with some leading questions. “Would you be prepared to say, Mr. Lane, that it is arguable that the lawyer bears a closer relation to what is called policy making, even though he be a junior law officer, than is true of other professions”? Did not the distinction “between what is called administration or non-policy determining, and policy determining [get] awfully blurred when you come to the law?” Lane agreed and added that “all the way down the line the legal staff contribute more to the policy making than the members of the other professions.” Frankfurter drove the point home: it was the work of even quite junior lawyers that “really infuses the spirit of policy” into an agency’s actions.81 After the December 1939 hearings, Frankfurter delayed deliberations until Jackson’s appointment to the committee in March 1940 gave him another vote. The politically astute Reed also realized that Roosevelt’s controversial bid for a third term argued for a postponement of a final decision until the fall.82 The showdown finally came on September 30, 1940. Frankfurter, Reed, and Jackson explained why they could not join White’s chapter on lawyers and would write their own version. McReynolds and White insisted on bringing lawyers within the classified civil service. Murphy declined to join either camp. Frankfurter claimed responsibility for drafting the new chapter and delegated it to Gardner, whose “unusual literary faculty” he admired. Gardner’s draft was not ready to circulate until January 9, 1941. Only after White threatened to resign, it was rumored, was a vote scheduled for January 21.83 Throughout the Board’s deliberations and in the final report, Frankfurter argued that “policy-making was an inescapable function of the lawyer’s craft.” Lawyers were “inevitably thrown into the heart of the policy-making process and of necessity [had] an important, and often a controlling, voice in the major issues of his department or agency.” They effected the rule of law by squaring every act with the relevant statute and the Constitution, but they did so in aid of their agency’s or department’s underlying mission. Of course they had to be masters of legal technique, but more important was their possession of “the imponderable qualities of imagination, judgment and discrimination.”84 Such lawyers would not devote their careers to government service if they had first spent much time in private practice, Frankfurter maintained. “You have got to catch them young,” before they had grown accustomed to “other inducements” and become concerned with supporting a family. Only the young would go into government service “with the same spirit and from the same point of view that the men who graduate Annapolis or West Point have.”85 The Civil Service Commission lacked the prestige to persuade the recruits to enlist, because its examiners were not “leaders of the profession.” Moreover, the indifferent quality of covered legal staffs was an open secret. Frankfurter pronounced FCC and ICC lawyers “inadequate.” Jackson agreed, based on the briefs he had seen as Solicitor General. “Positively the worst work that came to us came from the civil service offices,” he told Board members. Even McReynolds conceded the point.86 Only if lawyers of obvious professional prestige, such as the Solicitor General, directed the system would law schools start preparing students “for the Government as well as for Cravath and Henderson, Sullivan and Cromwell, and so forth,” Frankfurter said.87 Carefully vetted professors should be asked to prepare a short-answer test, “probably of a legal-aptitude variety,” such as was then under development at Yale. The candidates who scored high enough on the test would undergo interviews conducted by regional boards of judges, government lawyers, law professors, and private practitioners. From the reports of the regional boards, an open register of perhaps 500 eligibles would be compiled to fill the 250 to 300 entry-level positions expected to be vacant in a given year. Once the law professors participated and knew that other leading lawyers endorsed the process, they would recommend it to their students and start teaching to the test. The hearts and minds of the law students would follow, particularly if no rule of three, veterans’ preference, or apportionment scheme got in the way.88 It was a stunning proposal—all Reed could do after Frankfurter excitedly related it to the Board was break for lunch—but it seemingly blinked political reality.89 First, the combination of a merit system with an open register invited the charge that Frankfurter sought to cut off the influence of the party-in-Congress while giving his favored circle of New Dealers the opportunity to hire like-minded recruits. Such charges were in fact made. One of Murphy’s associates recalled the justice as being incensed by the thought that “Frankfurter boys could be picked off” the register and put in vacant positions. The Civil Service Commission official detailed to the Reed Committee believed that under Frankfurter’s plan appointing officers would hire from “Harvard, Yale, and Columbia graduates to the extent desired” and ignore “sundown lawyers,” a practice bound to draw fire from “such persons as Morris Sheppard.” George Riley, the Washington columnist who had backed Sheppard’s bill, dubbed Frankfurter’s plan “the Harvard method” and thought it “not one whit better than personal patronage.”90 Further, Frankfurter’s crusade threatened to reveal the New Deal lawyers’ evasion of the veterans’ preference. Certainly, the Civil Service Commission was ready to blow the whistle. “Persons arguing that civil service is bad because it requires adherence to veterans’ preference laws and regulations are simply arguing that excepted service is better because it permits them to defeat completely a mandate of Congress,” protested John Q. Cannon, the Commission’s principal legal examiner.91 McReynolds challenged Frankfurter directly. “If you set up a separate unit to administer civil service for lawyers, how long do you suppose they will be legislatively permitted to remain exempt from the veterans’ preference?”92 Ultimately, neither Frankfurter’s nor White’s plan won a majority at the January 21 meeting. The final report, issued in February 1941, gave the president a choice: Frankfurter’s proposal appeared as “Plan A”; White’s as “Plan B.” For weeks, insiders could not predict which plan Roosevelt would favor. One ventured that the decision might turn on which of the presidential assistants, Rowe or McReynolds, was more persuasive at the decisive moment. Roosevelt seemingly settled on Plan A in a cabinet meeting on March 7, but a month later he still had not acted, and Rowe kept Frankfurter, Jackson, and Reed on call should any last-minute lobbying be required.93 At last, on April 23, 1941, Executive Order 8743 was issued, creating a Board of Legal Examiners in keeping with Plan A of the Reed Committee’s report. The New Deal lawyers had triumphed over the civil service clique, but the fight proved to be only a skirmish in a longer battle for a federal legal service that would henceforth take place on less favorable political terrain. IV. The Board of Legal Examiners At first glance, the Board of Legal Examiners appeared to be merely the continuation of practices that had commenced with the start of the New Deal. Frankfurter characterized it as such. “In many of the agencies of the Federal Government since Mr. Roosevelt came to office in 1933,” the justice claimed, “the essentials of the civil service system, as I understand it, have been operating.” Already, legal divisions had created “their own little civil service systems” to “enlist high talent on disinterested grounds and to form a permanent career service in the Government.”94 In fact, the Board of Legal Examiners significantly limited the discretion of general counsels and departmental solicitors, who had been free to hire on grounds other than academically demonstrated merit if political considerations so demanded. As Solicitor of the Department of Labor, Warner Gardner found he could assuage Secretary Frances Perkins by promising to hire “a nicely bred, stupid gentile for every able Jewish attorney” he appointed.95 Other chief legal officers still wanted to assign clerks with newly acquired law degree to routine legal jobs or to snap up a highly touted whiz kid before someone else learned of him. The Board would permit none of these departures from systematic, meritocratic hiring. Further, Frankfurter’s ultimate goal of a corps of government lawyers whose members moved to positions of increasing prestige at their own or other agencies, much as career diplomats did within the foreign service, was bound to draw fire from many groups. The Civil Service Commission had opposed the creation of the Board and might inherit its mission if it met an untimely end. Law professors who had the misfortune to teach elsewhere than Cambridge, Morningside Heights, or New Haven might regard the Board as “a scheme to load the federal payroll with graduates of Harvard, Columbia and Yale Law Schools.”96 The ABA had recently led opposition to Roosevelt’s “Court-packing” plan and might mistrust any brainchild of the New Dealers Frankfurter, Jackson, and Reed. An increasingly powerful conservative coalition in Congress might rebel, against a plan that would strengthen “those fellows downtown who think they can run the government any old way that pleases them.”97 And even legislators who generally supported the New Deal might balk at letting an exclusive professional elite select the nation’s legal policymakers. The job of making the Board of Legal Examiners politically viable started with the selection of its original eleven members. Its ex officio chair, Solicitor General Francis Biddle, was surely eminent. An honors graduate of the Harvard Law School and legal secretary to Justice Holmes, he had chaired a labor board early in the New Deal and left the federal bench for the solicitor generalship. But Biddle was something of a high-society dilettante. “There is a la de da quality to Biddle, which is not merely sartorial but psychic,” Frankfurter remarked. He “wears fancy waistcoats, and his mind matches his waistcoats.”98 Certainly, the Board’s other government lawyers were able and highly regarded. Clifford Durr, Supreme Court Justice Hugo Black’s brother-in-law, was an Alabamian whose only law degree was a B.C.L. from Oxford. He had served as an assistant general counsel of the RFC since 1933 and general counsel of the Defense Plant Corporation since 1940.99 Edward Foley, Jr., Treasury’s general counsel, started at RFC (and briefly shared a house with Thomas Corcoran). He moved to PWA in 1934, where he soon became its general counsel. Oliphant made him his assistant at the Treasury in 1937, and he succeeded Oliphant as general counsel in 1939.100 Abe Fortas, a brilliant, hard-driving graduate of the Yale Law School, where he had been editor-in-chief of the law journal, was celebrated as “one of the youngest and brightest of the bright young men” less than a year after joining Jerome Frank’s staff at the AAA in 1933. For several years he had combined work for the SEC with a professorship at Yale, before permanently relocating to Washington, first as assistant director of the SEC’s Public Utilities Division and then in a series of positions in the Department of the Interior, including general counsel of the BCD and director of the Division of Power.101 Gerard D. Reilly, a 1933 graduate of the Harvard Law School, had spent a year at a leading Boston firm before taking a job at the Home Ownership Loan Corporation. He soon moved to the Department of Labor, where he served as an attorney, administrator of the Division of Public Contracts and, ultimately, Solicitor.102 John Q. Cannon served ex officio as the Civil Service Commission’s principal legal examiner. With the backing of Commissioner Arthur S. Flemming, Cannon was responsible for the apparently serene relationship between the two bodies.103 In congressional hearings he testified that the two leading opponents of Plan A in the Reed Committee, White and McReynolds, now supported the Board and that the current commissioners did as well. “The Commission has had … perfect cooperation from the members of the Board,” Cannon told one Senate subcommittee. “We at the Commission would ask nothing better than precisely what has taken place.”104 Two members represented the private bar. Each brought something more than a practitioner’s experience to the table. Philip J. Wickser was a 1911 graduate of the Harvard Law School, chairman of relief agencies in New York, a member of the ABA’s Board of Governors, and a well-regarded practitioner in Buffalo, New York. For two decades he had served as secretary of the state board of law examiners. Marion Smith, as Biddle told a congressional committee, “came from no law school,” but was nonetheless “a good, practical practicing lawyer.” The fact that he was the son of Hoke Smith, U.S. Senator from Georgia from 1911 to 1921, and a constituent of Congressman Robert Ramspeck, chairman of the House Civil Service Committee, surely was not coincidental.105 The two law professors complemented each other nicely. Paul R. Hays was one of a handful of New Dealers on the Columbia law faculty. An Iowan by birth, his undergraduate, graduate, and law degrees were from Columbia. Graduating from law school in 1933, he worked at the Cravath firm for a year and then lawyered for the NRA and the Resettlement Administration. After a brief return to Cravath, he joined the Columbia law faculty in 1936.106 The second law professor was Maurice T. Van Hecke, dean of the North Carolina Law School. Van Hecke’s curriculum vitae was intended to reassure anyone who feared, as he put it, that “the Board’s program will operate to increase the concentration in Washington of the graduates of the larger eastern law schools and that the graduates of particular schools will be given preference.” A Wisconsin native and University of Chicago law graduate, Van Hecke had taught law in state universities in West Virginia and Kansas as well as North Carolina. He had only visited at Yale.107 The final original member of the Board was in a category of his own. Charles Fahy was, at forty-eight, older than the other government lawyers on the Board. Born and raised in Georgia, he identified with Southerners and, it was said, “resented any criticism of the South very strongly.”108 Although his mother was Jewish, he considered himself Irish and Catholic, the ethnicity and religion of his father, and he was a devout communicant throughout his life. He attended Notre Dame for a year before entering Georgetown’s law school, where he was a top student while clerking in the office of the acknowledged leader of the District of Columbia’s bar, Joseph J. Darlington. After graduating in 1914, he practiced with Darlington, save for a stint as a naval aviator during World War I. After a prolonged hospitalization, he moved to New Mexico, where he recuperated, established a private law practice, and served as Sante Fe’s city attorney.109 He returned to Washington in 1933 as a member of the legal staff of the Department of the Interior because of his experience litigating the claims of Pueblo Indians, but his duties included chairing the Petroleum Administrative Board. He became the NLRB’s general counsel in 1935 and masterfully directed the campaign to establish the constitutionality of its organic act. He was Assistant Solicitor General when the Board first met in July 1941. After Biddle was named Attorney General the following month, Fahy succeeded him as Solicitor General, first on an acting basis and then, in October 1941, permanently. He soon became the Board’s most influential policymaker.110 Perhaps because of his neo-Thomistic training, Fahy thought of lawyering as a profoundly moral enterprise. His job was to identify the just principle that governed a situation and to persuade others of its justness. “He could convince himself of his position and then argue most ingeniously and forcefully, with complete inability to see the other side of the case,” recalled Emerson, his subordinate at NLRB.111 He was a masterful courtroom advocate, notwithstanding a soft-spoken manner. Confronted with a weak point, “Whispering Charlie” would reply, “Mr. Justice, many is the time I have asked myself that question and I have no really satisfactory answer. But the answer that satisfies me the most is this.” From then on, an observer recalled, “Fahy and the Justices were walking down the garden path, hand-in-hand, searching for the truth.”112 Fahy gave the Board a fighting chance with skeptical congressmen like Senator Pat Harrison (D-Mississippi), who considered civil service for lawyers “asinine.”113 The new Solicitor General was a native Southerner and an adopted Westerner. He was considered Catholic, not Jewish. A graduate of Georgetown, his chairmanship was thought to “lessen the fear that the board is Harvard-dominated.”114 He was a veteran at a time when the veterans’ lobby was on the rise. He had devoted many years to what most congressmen considered the usual practice of law, namely, litigating the private disputes of individuals.115 And what Gardner called his “extravagant sincerity” would keep him fighting for the Board well after others thought the cause lost.116 For an executive secretary the Board was quite fortunate to recruit Herbert Wechsler, at the time a young legal academic just finishing a year in the Solicitor General’s office and later one of the nation’s greatest legal scholars. At the urging of his dean, who anticipated a sharply lower enrollment in the fall, Wechsler signed on for a year.117 His staff included the recent law graduate John P. Frank, who came to the Board after excelling at the University of Wisconsin Law School and a fellowship at Yale; the law professors Hiram Lesar of the University of Kansas and Henry P. Weihofen of the University of Colorado; and Ralph Fuchs, a Washington University law professor with a doctorate in economics from the Brookings Institution, who had been a member of the Attorney General’s Committee on Administrative Procedure.118 Fuchs served as Wechsler’s assistant and succeeded him in December 1942. V. Quality control Wechsler, no less than Frankfurter, wanted the Board to “to build a bridge from the schools to the Government service” by making “the habit of taking our examination … a part of law-school life.”119 But Washington in the summer of 1941, when the Board commenced operations, was a very different place than Washington in early 1939, when it was conceived. With mobilization and a peacetime draft underway, the demand for government lawyers was greater and the supply of candidates older and of more uneven quality than the Reed Committee had imagined. Such conditions and uncertain funding during its first year forced the Board to play a more modest role than its creators had envisioned. Rather than act as a highly selective gatekeeper to the entry-level jobs of a prestigious, permanent legal hierarchy, the Board settled for the task of preventing federal legal staffs from falling too far below “a reasonable level of competence” during the war years.120 The Board would continue to advocate on behalf of meritocractic standards, but it did not lay the foundations for a career legal service. The boom in hiring lawyers was already underway when the Board was created, and it continued as the appropriations for the 1941-42 fiscal year took effect.121During the mid-1930s the federal government hired an average of 633 lawyers a year. In contrast, the Board approved 512 appointments in the last six months of 1941 and a total of 2,082 appointments by the end of the fiscal year in June 1942. It would approve another 3,085 appointments in the 1942-43 fiscal year and a further 1,110 in 1943-44. Although turnover accounted for most of these appointments, the number of legal positions grew substantially. The 5,368 federal law jobs counted by the Reed Committee in May 1939 swelled to 8,500 positions in July 1943. Legal positions would fall to 7,500 by April 1944 and would remain below the 8,000 mark until the Korean War.122 Some of the hiring was by existing agencies. The Justice Department, for example, made 217 appointments in the 1941-42 fiscal year; the NLRB made 78; the Treasury Department, 70; Labor, 58. The War Department also hired 136 civilian lawyers in the 1941-42 fiscal year.123 Of the new war agencies, the War Production Board (WPB) hired 60 lawyers, and the Board of Economic Warfare hired 42. But by far the largest employer of new lawyers was the Office of Price Administration (OPA), created by executive order in April 1941. It began hiring in earnest after the passage of the Emergency Price Control Act in January 1942 and employed 741 attorneys by June of that year. By August, some 375 OPA lawyers worked in Washington and another 640 in offices across the country. An estimate in November 1942 put the legal staff at between 1,700 and 1,800, 500 of whom worked in Washington. Less than a year after its creation, OPA lawyers outnumbered those of the Department of Justice.124 As the number of legal appointments grew, the number of law graduates plummeted. Between the fall of 1940 and the fall of 1942, enrollment at ABA-approved law schools fell by two thirds.125 In the same period, the size of graduating classes fell 62% at Columbia, 79% at Yale, and 86% at Harvard, where only fifty-seven third-year students were enrolled. The two largest ABA-approved law schools in Washington, D.C., Georgetown and George Washington, saw the size of their third- and fourth-year classes drop 60%. “The trend in Washington toward smart young lawyers has come to an abrupt stop,” a legal newspaper reported in October 1942. “Either the boys are in the Army or else they’re getting ready to go.”126 To keep places open for returning veterans and to prevent the permanent saddling of the federal government with substandard hires, after March 16, 1942, entry-level lawyers joined not the civil service but a new “war service.” Their appointments ended, at the latest, six months after the cessation of hostilities.127 When Biddle and Wechsler sought $54,000 for the Board in October 1941, no member of the House Appropriations Committee opposed their request outright, although Frankfurter’s membership on the Reed Committee was noted, and a West Virginian worried that “the city boys [might have] a little advantage over the fellows from the red brush.” (Wechsler replied that at a recent ABA meeting, law professors and lawyers from “small schools” and “rural places” praised the Board for giving them “a chance that they had not had, practically speaking, before.”) Ultimately, the committee declined the request, professedly because the Civil Service Commission already had enough funds on hand but reportedly because it wanted a stronger indication of the legal profession’s support for the Board.128 Roosevelt directed the Commission to cover the Board’s expenses, but the national competitive examination had to be postponed until the Board obtained an appropriation of its own.129 Meanwhile, it busied itself reviewing the credentials and orally examining lawyers newly appointed on a contingent basis, a process known as “noncompetitive” examination. Of the 6,227 such appointments the Board authorized during the fiscal years 1941-1944, it approved 3,200 without oral examinations. Ten percent of those interviewed were denied the positions they sought.130 With so modest a failure rate, the noncompetitive examinations might not have seemed worth the effort, but Wechsler considered the oral examinations the greatest accomplishment of his tenure at the Board.131 Three-person panels conducted the interviews, which lasted at least an hour. In Washington, at least, Board members or staff usually served, with leading government lawyers filling the remaining slots. No fewer than twelve chief legal officers volunteered their time, including Warner Gardner of the Department of Labor, Chester Lane of the SEC, Arnold Levy of the BCD, Telford Taylor of the FCC, Robert Watts of the NLRB, and Mastin White of the Department of Agriculture. Other interviewers were only slightly less prominent, such as Wendell Berge, Walton Hamilton, Moses Huberman, Irwin Langbein, Edward Levi, and Robert Stern of the Department of Justice, Jacob Beuscher of the OPA, Frederick Beutel of the Alien Property Custodian’s Office, Huntington Cairns of Treasury, and Kenneth C. Davis of the Bureau of Investigation and Research. Beyond Washington, judges, law professors, and eminent lawyers served, including Judges Charles Clark and Jerome Frank of the U.S. Court of Appeals for the Second Circuit; Paul Donovan and Whitney North Seymour of the elite New York City bar; Dean Herbert Goodrich of the University of Pennsylvania Law School; and the University of Chicago law professors Wilber Katz and Sheldon Tefft.132 Interviewers asked questions suggested by the candidates’ own work experience or, in the case of recent graduates, favorite topic of study. “A lawyer might be offended by the notion that in order to get a job with the federal government, he has to go and study Torts again,” Wechsler explained, “but he couldn’t be offended by the idea that he should be asked to give a sensible and informative and accurate account of a case that he handled last week for a client.” The questions put to Herbert Miller, a forty-five-year-old claims adjustor seeking a legal post at the Employees’ Compensation Commission, are illustrative. Miller was asked: What two factors did most workers’ compensation laws require claimants to prove in order to prevail? Was the employee’s negligence a valid defense? Under what constitutional power did Congress enact the District of Columbia’s workers’ compensation law? Why had attempts to place longshoremen under state workers’ compensation laws been invalidated? And “under what circumstances did the Supreme Court in Crowell v. Benson say that the district courts may allow trial de novo in a case under the Longshoremen’s Act”? Put to such questions, Wechlser claimed, “the man of ability speedily stands out,” and so did appointees who could not make “even a minimum amount of sense” of the law.133 Staff member Weihofen believed that any “lawyer of real competence would find the interview nothing worse than an intellectually stimulating chat about some of the legal problems he has had on his mind.” Yet many must have found interrogation by the likes of Abe Fortas a harrowing experience. Donald Leecraft protested the denial of his appointment to a job in the Office of the Chief Engineer of the War Department because questions about the master’s thesis he was writing and his “understandings of the philosophies of the Justice of the Supreme Court” were not relevant to that position. The Board rejected Leecraft’s appeal when the staff showed that he had misstated his class rank by thirty percent. Joseph Lepie, appointed to do trial work for the NLRB, impressed an examining committee with his “very complete lack of knowledge of public law,” but in his case the Board ordered a new examination, concerned that the interrogation might have strayed too far from Lepie’s actual experiences. Anne Chatterton was denied a junior attorney position at the OPA. Although she had considerable experience in retail, she had “less understanding of legal fundamentals than might be expected of an informed layman,” as evidenced by her belief that, once passed by Congress, the Emergency Price Control Act was immune from constitutional challenge.134 Mindful that rejections of appointments were bound to bring protests from Congress and administrators, the Board built two safeguards into their examining system. First, it was generous in hearing appeals from adverse judgments. A rejected appointee could appeal to a committee of the Board, which would then review the appointee’s petition, the examining committee’s report, and a stenographic transcription of the interview. Although outright reversals were rare, re-examinations were frequent, to the exasperation of the staff. Sadie Morris was one such case. An alumna of Sweetbriar College, a graduate of NYU’s law school, where she was book review editor of the law journal, a member of the New York bar, and the author of a treatise on trial practice, Morris took a job in the OPA’s Washington office in November 1941, subject to her successful completion of an oral examination. Thanks to a growing backlog, the Board still had not examined her in September 1942, when, like hundreds of others in her position, she was encouraged to take the written test the Board finally administered for the lower legal grades. Had Morris received a passing mark, her appointment would have become permanent, but because she did not, she had to undergo an oral examination as well. This was finally administered in November 1942, when she wanted to transfer from OPA to the Treasury. She failed the exam and was left without a job on either legal staff. Her outraged brother protested directly to FDR that his sister had only a day’s notice of the interview and was asked about problems that arose in her practice twelve years earlier. He blamed “the jealousy of a certain woman lawyer in the O.P.A. office” for her dismissal.135 The brother’s protest arrived at the White House as OPA lawyers were under assault in Congress and the press, and so Roosevelt directed his assistant McReynolds to investigate. Ralph Fuchs confirmed that Morris had been asked about her practice in New York but reported she had also been quizzed on her work at OPA. The Board’s appeals committee denied a re-examination, but Fahy prevailed upon its members to grant her a second interview. In April 1943 Morris was examined at unusual length and given a full opportunity to make any statement she wished. This only succeeded in convincing the examining committee that she did not “at present possess the qualifications necessary for the Government legal service.”136 At that point, even Fahy was convinced. “I suppose it is barely possible that an uncorrected error still exists in the decision upon your qualifications,” he wrote to Morris when she sought yet another review. “However, due process can scarcely go beyond affording full hearings such as you have had before responsible judges.”137 A second practice calculated to build confidence in the Board’s examination process was a standing invitation to the agencies to send one of their own lawyers along with an appointee. Agencies’ representatives were free to consult with the committee, ask questions, and even defend candidates, but they had no vote. As Fahy observed, making agency lawyers “active participants in the development and administration of the system” increased their confidence in the Board’s methods. Wechsler claimed that some welcomed the opportunity to see candidates perform. Sometimes they withdrew appointments, and almost always the agency accepted rejections graciously.138 Some general counsels and solicitors used the Board as Oliphant had, as an implacable enforcer of standards to be invoked whenever a congressman turned up with an unsuitable candidate. “A great deal of … political pressure was lifted, we were told, by the chief law officers of the government by the very fact that they knew [that] they couldn’t put this mug up without disgracing themselves,” Wechsler recalled. “The fellows just lurking around in the corridor waiting to get appointed now pulled out, because they knew they couldn’t show up.”139 Through such efforts, the Board kept alive its ideal of a career legal service, but in the process it had reason to question Frankfurter’s premise that even quite junior lawyers made policy and should be part of a single, unified hierarchy. Many government lawyers, they learned, performed specialized, repetitive tasks, such as the processing of claims, applications, and routine cases. Not only were “brilliant men” not required for such assembly-line work, Wechsler realized, they “would be lost if required to undertake it.”140 The tasks were necessary and in some sense legal, but should the lawyer content to perform them be accorded the same status and transfer rights as a law review man from Harvard, Columbia, or Yale? The Board never solved the problem but it groped toward an answer. Lawyers appointed from non-legal jobs, in which they learned an agency’s routine but did not acquire a “general legal competence,” would receive a “provisional” civil service status, that protected them in their initial law job but withheld from them the transfer and reassignment rights of other government lawyers. Such, for example, was the fate to which the Board consigned Francis Daly, a forty-four-year-old lawyer who had graduated in the bottom fifth of his class at Harvard and labored for many years in the Justice Department’s land condemnation unit, where he verified that the paperwork sent to Washington from the field was in the proper form. When an examining committee rejected Daly’s appointment, he appealed to the Board, which delegated the job of reviewing the transcript of his interview to John Frank. Frank was appalled. “Mr. Daly can conceive of no constitutional objection whatsoever against Government condemnation of a grocery store for the purpose of Government operation of it,” Frank reported to Wechsler. (The “public use” requirement of the Fifth Amendment was an obvious ground.) Further, Daly believed that if a condemnation of part of a parcel happened to raise the value of the remainder, the owner would have to pay the government a corresponding sum. (In fact, the owner would not.) Yet Frank recommended not Daly’s dismissal but the reclassification of his position at a lower pay grade.141 The Board’s discovery that not all of Uncle Sam’s lawyers had to be part of up-or-out hierarchies did not prevent the larger legal profession from rallying to the ideal of a federal legal service.142 Lawyers from well beyond the metropolitan Northeast seconded Fahy when he tried to persuade a skeptical appropriations committees that the Board was something other the means by which New Dealers would create and populate a Deep State. In the House, Fahy suffered a setback that even some of its own staffers considered fatal, but Fahy persevered. Ultimately he obtained funding to conduct the competitive examination he believed would put the Board’s nonpartisanship and professionalism beyond question. VI. Congress, 1942 When the request for the Board of Legal Examiners came before a House appropriations subcommittee on January 8, 1942, questioning centered on its plans for a competitive examination and, in particular, whether appointing officers would be free to hire Harvard, Columbia, and Yale graduates from an open and unranked register. Fahy, identified as a Georgian and a Georgetown law graduate, stressed that regional boards would choose from among the high-scorers on the examination and thereby bring young lawyers “all through the country in closer contact with the Government.” Board member Maurice Van Hecke, after reminding a Kansas congressman that he had once taught law in his state, explained that the regional interviews would spare applicants the expense of a job-hunting trip to Washington.143 Walter Armstrong, a Memphis, Tennessee, lawyer wrote in his capacity as ABA president to assure the congressmen that none of the Board’s procedures would “discriminate between law schools or in any way prejudice any man who has, through diligent study and practice, established a good record of achievement, and through honorable deportment established an unblemished standing in his community.”144 A second letter came from Marion Smith, whom Congressman Ramspeck identified as “purely a Georgia product,” Hoke Smith’s son, and an office-trained attorney. He certainly did “not belong to the group of lawyers from Harvard and some of those other institutions that have been predominating the legal field in Government service recently,” Ramspeck observed. Finally, the Civil Service Commission’s chairman, Harry Mitchell, testified that he and his fellow commissioners viewed the Board “as a valuable experimental effort.”145 The centerpiece of the hearings, however, was the brusque questioning of Herbert Wechsler by the Alabama congressman Joe Starnes. Starnes, a member of Martin Dies’s Select Committee on Un-American Activities, suspected the young lawyer of radical sympathies, if not actual membership in the Communist Party. The congressman brought out that during his stint in the Solicitor General’s office, Wechsler had argued United States v. Classic, which, by recognizing a federal interest in the conduct of primary elections, threatened the “white primary,” a cornerstone of the solidly Democratic South. Even more alarming to Starnes was Wechsler’s collaboration while a law professor on Supreme Court briefs on behalf of the African-American Communist Angelo Herndon, convicted of criminal syndicalism after a deeply flawed trial, and Joseph George Strecker, an ex-Communist facing deportation. Wechsler pointed out that he had been asked to help by Whitney North Seymour, an eminent New York lawyer who had been Assistant Solicitor General during the Hoover administration, and that the International Legal Defense (ILD), the Communist-front group that funded the appeals, had no say in how they were conducted. But Starnes could not get past the fact that Wechsler had charged nothing for his services, which the Alabamian claimed proved that he sympathized with the Communists. He also dwelt on Wechsler’s brief membership on an ILD committee and his on-going membership on the board of another Communist-dominated group, the International Juridical Association. Was it not the policy of the Board of Legal Examiners, Starnes demanded, that all lawyers in the federal government “have the same viewpoints” and be “subject to the domination of certain labor leaders”? “Certainly not, sir,” Wechsler replied.146 Wechsler, who offered to resign if it would get the Board its funds, believed that Starnes “didn’t give so much as a damn about the Board of Legal Examiners” and “would have gone after me if I had been appointed dogcatcher.” But other congressionmen saw a special danger in entrusting the selection of government lawyers to the likes of Herbert Wechsler. “There is more authority and more power in that proposal than anything that has come to my attention in a long while,” the Republican Everett Dirksen declared on the floor of the House of Representatives. “If I wanted to shape the policy of the Government of the United States I would ask for nothing more than to be executive director of a committee or commission that will sit on the qualifications and social viewpoint of the lawyers who are taken into Federal service.” On January 22, 1942, the House adopted the committee’s report and forbid the expenditure of any funds on the Board until Congress enacted authorizing legislation.147 The House’s vote convinced John Frank that the Board was about to breathe its last. Some members of the House committee “may honestly think of this enterprise as a Harvard-Yale-Columbia conspiracy,” Frank told his former law dean. “Others are opposed to Civil Service generally; Joe Starnes of Alabama thinks Herbert Wechsler is a Communist because he wrote briefs in the Herndon and Strecker cases; some of the representatives are glad to take a slap at the New Deal.” Newspaper correspondents predicted that the Board would expire at the end of the fiscal year. If other ill omens were needed in the first months of 1942, they could be found in the house appropriators’ grilling of several chief legal officers over their hiring of elite law graduates. Even the Law Librarian of Congress was chided for employing an assistant from Harvard.148 Fahy was undaunted and carefully prepared for appropriation hearings in the Senate. At his request, Roosevelt personally backed the Board in a letter to Carter Glass, chairman of the subcommittee that passed on its appropriations. Biddle, who, as Attorney General, put the prestige of a cabinet officer behind the Board, led off the hearings. He defended the open register as a way to match the different aptitudes of lawyers to the varying requirements of legal jobs, and he assured the senators that the national test and regional boards would reverse the recent trend toward looking to “the great law schools in the East” for recruits. “One of the fundamental principles of the whole plan,” Biddle declared, was “that in a democracy we should distribute the lawyers.”149 The senators’ response was mixed. Wayland Brooks reported that an officer of the Illinois bar association had already conveyed the support of his state’s lawyers for the Board. Gerald Nye, the Non-Partisan League’s senator from North Dakota, volunteered that he saw no reason to think that Eastern law schools would increase their representation under the Board. Others were unconvinced. Both Kenneth McKellar of Tennessee, whom Chester Lane considered one of Congress’s most unscrupulous “patronage grabbers,” and John Bankhead of Alabama, who declared his “deep resentment … against carpetbagism,” had to be reassured that field positions would go to local lawyers. Doubtless opposition to New Deal programs and New Dealers’ interference with the regular workings of the Democratic Party accounted for much balkiness, but the senators spoke instead of the youthfulness and lack of “practical” experience of recent appointees to the federal legal service. At a time when the Harvard law graduate David Ginsburg, not yet thirty, headed the OPA’s legal staff (popularly known as the “kindergarten” of legal divisions), the Republican Wallace White of Maine complained about “young fellows” who called themselves lawyers just because they had a law degree and passed a bar exam. “I feel those fellows have sort of degenerated from the status of lawyers into sociologists and sometimes economists.” McKellar agreed that recent appointees did not “know anything more about trying a lawsuit than a cat does about Sunday.” He proposed a prerequisite of three years’ practice for all entry-level legal posts.150 That McKellar—“a pinched, vindictive, and venomous man” in the judgment of the historian John Morton Blum—was equating the practice of law with the work of a courtroom lawyer became unmistakable when he asked Herbert Wechsler to describe his legal career.151 Wechsler recited an imposing resume: legal secretary to Justice Harlan Stone, professor at the Columbia Law School, lawyer to an NRA code authority, coauthor of Supreme Court briefs in the Herndon and Strecker cases, assistant to the eminent New York lawyer John Harlan Amen in a corruption prosecution in Brooklyn, legal advisor to Senator Robert F. Wagner at the New York constitutional convention of 1938, five appearances before the Supreme Court while a member of the Solicitor General’s office. None of it impressed the senior senator from Tennessee. Senator McKellar: But you never made law your real work in life, in the way of going out and becoming a member of a firm, or individually practicing law for a general clientele. That you have not done and you do not intend to do. Mr. Wechsler: My life has been concerned exclusively with the law for the last fifteen years. Senator McKellar: In the way you said, but not in the actual practice of the law as we have it in all parts of our country. Mr. Wechsler: I have not been a trial lawyer, Senator McKellar, that is true.152 Doubtless McKellar meant what he said when he told Wechsler that government lawyers ought to be real lawyers and that real lawyers tried cases. Still, something more than this belief seems necessary to account for his position. McKellar’s views may well have been the common sense of lawyer-politicians during his formative years at the Tennessee bar, but they ignored longstanding trends in the larger legal profession that dated from the rise of the corporate law firm. Of course, chief legal officers of the federal government often hired youngsters fresh from law school, explained one departmental solicitor to House appropriators on an earlier occasion. “The large law firms in New York and Philadelphia” did the same thing.153 Moreover, just as many denizens of the corporate “law factories” never appeared in court, so it was, as Biddle observed to McKellar, that “90 percent of the business of lawyers in government” did not involve trial work. In any event, Biddle argued that few successful trial lawyers would want the “bookish work” of the entry-level legal grades.154 When Carter Glass feigned disinterest in the Board on the ground that, as an outspoken opponent of the New Deal, he had “as little to do with patronage as any human being in the Senate,” McKellar denied that he was motivated by such concerns.155 But a requirement of three years’ trial practice made good sense from a patronage monger’s standpoint. It would disrupt the New Dealers’ pipeline from the law schools to the government law offices but put no real obstacle in the way of job seekers who went through Congress, as any supplicant who possessed the requisite political “chit” would have served the party for several years and practiced law while doing so. Biddle thought that McKellar was piqued at being denied access to the TVA’s vast complement of jobs, which were protected by that agency’s own merit system. Once assured that he could influence appointments to law jobs in Tennessee, he would drop his objections. Apparently such assurances were made: after the hearings McKellar spoke no more about his three-year minimum and consistently backed the Board. With his support, the Senate appropriations committee excised the House’s ban on expenditures on the Board, and on April 30, 1942, the full Senate followed suit.156 Fahy then built support for the Senate bill in the conference committee and in the House. Herbert Wechsler’s alleged radicalism continued to be a concern, especially because Joe Starnes was one of the House’s managers. Some speculated that many in the House would brook no interference with their access to patronage in an election year. Antisemitism was also at work. When a lawyer, grateful for the Board’s help in his job search, praised the Board over lunch with some congressmen from Texas and Oklahoma, they objected that it was “a device for keeping Harvard’s hold on the Government, that it was Communistic, and that it was part of a general scheme whereby no one but ‘Ginsburgs, Cohens, and Levys’ can get Government law jobs.”157 The Board’s friends prevailed in the conference committee, but only by agreeing that it would receive no further funds until Congress passed authorizing legislation. As the House’s vote on the conference report approached, Fahy made sure that wavering congressmen understood the decisive role of the regional boards, distributed a list of the lawyers and judges who had already agreed to serve on them, and thanked congressional supporters for their favorable remarks. Wiley Rutledge, a federal judge and a former dean of the University of Iowa’s law school, lobbied the Hawkeye state’s congressional delegation. Marion Smith lobbied Georgia’s. A Wisconsin congressman had the favorable editorial of the ABA’s journal placed into the Congressional Record and declared that the Board would promote the hiring of lawyers from “Wisconsin, Minnesota and other distant states.”158 The vote came on June 22, just days before the end of the fiscal year. Francis Case of South Dakota, a member of the conference committee, reported on a study he had requested of the residence and law school of all lawyers appointed during the first six months of the Board’s operations. It revealed a deplorable overrepresentation of Harvard and Yale graduates: Harvard topped the list with 17%; Yale followed with 7%; Columbia was third with 6%. Harvard’s dominance of the OPA’s legal staff was even more alarming: a fifth of its Washington lawyers had Harvard law degrees. “One, two, or three, or a half dozen law schools [ought not] to furnish the legal policy and thinking for the entire country,” Case declared. Nonetheless, after noting that all future appointments were only for the duration of the war, the South Dakotan urged his fellow representatives to give the Board a trial. By a vote of 53 to 47, they did.159 VII. On merit alone? The Board had won a year’s reprieve and proceeded at once with a competitive examination for the junior legal grades. A register of graduates from many law schools and every state in rough proportion to its population would quiet most congressional critics, Board members reasoned. Further, a well-regarded written test and the participation of law professors and practitioners on the regional boards could mobilize lawyers throughout the country and strengthen the Board’s hand against die-hard defenders of congressional patronage. The Board would still face an imposing gauntlet in two different sets of congressional committees—civil service committees for authorizing legislation; appropriations committees for funding—but it would have girded itself as best it could. The first step was a nationally administered, machine-graded test, which would winnow the thousands of expected applicants down to a manageable number. The test was to assess “legal competence rather than merely legal information,” much like the entrance examinations at Yale and a few other law schools.160 About twice as many candidates as expected openings would be selected for the next round, evaluations of candidates’ files and interviews by regional boards drawn from the local bench, bar, and law schools. The recommendations of the regional boards would reduce the field to the number of places on the register, which, in a concession to the geography of American politics, were allocated to each state in accordance with its population. “At the final step of the process, where intangibles count for most,” Wechsler explained, “we shall turn to the profession itself.”161 The Board considered the possibility that it would find itself ratifying the biases of local lawyers, but it ultimately decided that instructions to disregard the political affiliation, race, and religion of candidates would check most abuses. Besides, deferring to the regional boards made good political sense. Congress would more readily trust local lawyers, selected in a bipartisan manner, than the government lawyers who constituted a majority of the Board. Devolving responsibility to the local boards would “reduce pressures in Washington”; a congressman could not blame the national board if a regional board refused to place his favorite on the register.162 Finally, a geographically diverse phalanx of prominent lawyers could prove decisive in a close fight in Congress. Making their decisions practically determinative was the surest way to encourage them to identify with and defend the Board. As the newspaperman George Riley observed, the regional boards were “a splendid method of keeping the Board of Legal Examiners alive.”163 Law professors volunteered for service, evidently sharing the judgment of Wisconsin’s Willard Hurst that it was “something of a miracle … to see the Civil Service extended to our field of operations under such favorable auspices.” Wiley Rutledge recruited other law professors, judges, and practitioners during a trip to the Midwest and Rocky Mountain states in the summer of 1942. In all, some ninety-eight boards were organized with 332 members, including thirty-nine federal judges, twenty-six state judges, and twenty-eight law school deans. Most regional boards had both Democratic and Republican members, although only Democrats served in the South and South Dakota’s panels were exclusively Republican. The Board even tried to placate rival factions in state Democratic parties, a task that proved especially challenging in New Jersey, where “almost every lawyer appear[ed] not only to be a party member but to have been politically active at one time or another.” Some observers complained that the boards were “too conservative, or ‘blue stocking,’ in complexion,” but several included law professors who taught at ethnically diverse or Catholic law schools, such as Boston College, Chicago-Kent, the University of Detroit, Fordham, New York University, Notre Dame, St. Johns, and the Washington College of Law.164 The veterans’ preference remained a vexing problem. The Board declined to follow the Civil Service Commission in giving disabled veterans or their widows an absolute priority over all other eligibles. Yet, as Wechsler put it, “the strength of the interested groups” and the very “fact we are at war” forced the Board to favor veterans in three other ways. First, it gave candidates who were eligible for five- or ten-point preferences under the Commission’s rules a corresponding number of extra points on the written examination. Second, it instructed members of the regional boards to use veterans’ status as a tie-breaker if confronted with otherwise equivalent applicants. Third, it identified the veterans on the register and reminded appointing officers of their statutory obligation to prefer them in their hiring decisions.165 The examination was publicized through normal Civil Service channels as well as telegrams sent to every state governor. Over 26,000 requests for applications came in by the August 21 deadline. On September 26, 1942, 13,291 candidates filed into Civil Service offices and law school classrooms across the country to take the six-hour test. The better candidates must have found it a “somewhat humiliating experience,” a staff member ventured. Those who subscribed to the lofty ideals of public service propounded by their law professors at Harvard, Columbia, and Yale found themselves herded together with applicants who saw the government as an employer of last resort. All were fingerprinted and instructed on how to fill out their forms “like grade school pupils.” As a group, they were older than the Board had envisioned. Newspapermen made much of the fact that thirty blind lawyers took the test and that Michigan had many no shows, presumably because the registrants had found jobs in the state’s booming private sector. The whole tone of the proceedings, the staffer reported, was “depressing.”166 The test itself would not have lightened many spirits. After reviewing a draft, Warner Gardner declared that he would “have no hesitation in hiring any survivor.”167 Part One confronted candidates with questions on synonyms, reading comprehension, and logic. Although some referred to legal topics, few would have been out of place on a general intelligence test. Part Two also tested vocabulary and reading comprehension but more consistently in a legal idiom. A section of analogies, for example, presented candidates with the question, “SLANDER is to LIBEL as ORAL TESTIMONY is to (A) witness; (B) oath; (C) cross-examination; (D) lawsuit; (E) deposition.” Other questions tested applicants on their ability to apply rules for calculating capital gains, to identify whether various propositions helped one side more than another in a hypothetical case involving the Declaratory Judgment Act of 1934, and to explain how the provisions of the Hatch Act (which limited the political activity of employees of the federal government) might apply to the OPA’s staff.168 Part Three contained the test’s most strictly legal questions. The first set revolved around a proposed amendment to the Civil Aeronautics Act requiring that American citizens own three-fourths of the stock of a domestic airline. The next asked candidates to compare seven pairs of digested cases and to decide whether the second case supported, undermined, or was distinguishable from the first. The ability to interpret the Sherman Act and a statute regulating the corporate ownership of land in Puerto Rico were tested in another series of questions, and the part concluded with more sections on the implications of precedents for a series of hypothetical cases. Part Four was the most surprising. It amounted to a New Dealer’s test of the “cultural literacy” of American lawyers, circa 1942. The typical graduate of an urban night law school, with no liberal education to draw upon, might have stumbled over its questions on constitutional and political history, economics, trends in American history, the functions of New Deal agencies, and principles of social legislation. Candidates were asked to match such events as the founding of the Greenback Party with the historical eras in which they transpired, to identify which of five figures was a leader of the Confederacy, to puzzle out how the Federal Reserve Act responded to the Panic of 1907, and to decide which of five agricultural developments had produced the most widespread sociological effects in the past seventy-five years. Question 39 asked “Which of the following topics is NOT paired with the name of an American public figure closely associated with it?” (A) Return to “Normalcy”—Warren G. Harding; (B) “Lame Duck” amendment—Theodore Roosevelt; (C) Pact of Paris—Frank B. Kellogg; (D) Investigation of law observance and enforcement—George W. Wickersham; (E) National Recovery Administration—Hugh S. Johnson.Several matching questions seemed designed to ensure that a general counsel’s reference to a hero of the Anglo-American legal tradition would not go unappreciated: Column 1  Column 2  62. Bentham  A. Judge, contemporary with Marshall  63. Brandeis  B. Advocate of Codification  64. Mansfield  C. Chief Justice of the United States  65. Taney  D. Sociological Briefs  66. Story  E. Commercial Law  Column 1  Column 2  62. Bentham  A. Judge, contemporary with Marshall  63. Brandeis  B. Advocate of Codification  64. Mansfield  C. Chief Justice of the United States  65. Taney  D. Sociological Briefs  66. Story  E. Commercial Law  More than one question seemed to favor reformers in general and New Dealers in particular, notwithstanding the Board’s warning that “great care should be exercised to eliminate all questions which might be criticized because of the propaganda implications.”169 Test takers were rewarded for knowing that judges of juvenile courts were given broad discretion out of “a desire to emphasize corrective, rather than punitive action” and that employees did not contribute to workers’ compensation plans because their payouts were “considered part of the social cost of production.” Candidates were quizzed on progressive legislation, such as the Norris-La Guardia Act, which curtailed federal labor injunctions. Federal agencies were mostly New Deal in origin. Even an ostensibly historical question had a hidden bias. “Which of the following sequences of events is in CORRECT chronological order?” Question 88 asked. (A) Building of the first transcontinental railroad; introduction of the trans-Atlantic steamboat; establishment of parcel post; (B) Battle of Bull Run; Battle of Kings Mountain; Battle of Gettysburg; (C) Establishment of the Reconstruction Finance Corporation; establishment of the National Recovery Administration; establishment of the Securities and Exchange Commission; (D) Populist Party; Whig Party; Greenback Party; (E) Purchase of Louisiana; acquisition of the Philippines, annexation of Texas.The answer, as New Dealers would know, without knowing any history, was C. As a statistical matter, the results were quite satisfactory. Out of a possible maximum of 409 points, scores ranged from 35 (a figure well below what random guesses would yield) to a high of 386, with a median of 250 and a standard deviation of 55. Several of the top twenty scores were turned in by the graduates of Washington’s sundown schools, and one high scorer was law-office-trained.170 But in one respect, the results were problematic: the average scores in some states were much lower than in others. This presented the Board with a dilemma. If the Board set the passing grade low enough to ensure that every state received its share of positions, unqualified lawyers would find their way onto the register in many states, and in others the number of lawyers eligible for oral examinations would be unmanageably high. If the Board set the passing grade too high, many states would end up with fewer slots than was their due. The Board compromised. By setting a passing grade at sixty-six percent (270) and establishing higher scores, called “cutting points,” for states in which more candidates passed than could be interviewed. New York’s cutting point (331) was the highest, at almost a standard deviation and a half above the national median, but it still qualified 414 lawyers for interviews for the state’s 204 places on the register. In sixteen “subquota” states, the problem was not too many candidates but too few. That this contingent included every Southern and border state (except Florida, Maryland, and Missouri) was particularly worrisome, given the power of their congressional delegations.171 Again, the Board bent without breaking. On the motion of the Alabamian Clifford Durr, it established a “review belt” for candidates who scored between 250 and 269. Regional boards were free to interview them if their records otherwise suggested they were competent lawyers.172 Ultimately 2,968 were deemed eligible for oral examinations, held in the winter of 1942-43. The regional boards were instructed to ask candidates about legal problems that had recently arisen in their practice or, in the case of law students, were the subject of their term papers or favorite courses. They were not to consider the race, religion, political affiliation, or sex of a candidate; nor were they to inquire into any “social position, economic condition, and personal characteristics” having no bearing on professional competence. A candidate’s “intellectual and emotional concern with contemporary problems” was to be counted an asset rather than a liability, as long as it remained “within the wide ambit of loyalty to democratic methods of procedure.” Individual ratings were to be recorded with specific assessments of past achievement, oral expression, technical proficiency, and “other significant factors.”173 Apparently the regional boards were a great success. Fuchs reported that, collectively, their members contributed 6,400 hours of their time, devoted about 45 minutes to each candidate, completed their rating charts conscientiously, and reached a consensus on the great majority of candidates. Boards in New York City and elsewhere worked evenings to dispatch their caseloads. Fuchs conceded that “intangible factors” might have influenced some boards, and he observed that most were inclined to award their highest rankings to older and more experienced candidates, but he thought that the conservative political views of only one panel colored its selection of eligibles. The volunteers were enthusiastic. Dwight Campbell, a judge who served on South Dakota’s all-Republican panel, was so impressed with the written and oral examinations that he lobbied ABA leaders and his congressional delegation on the Board’s behalf. Every member of a regional board Campbell encountered at the ABA’s annual meeting, he reported, agreed that its procedures were “fair and intelligent in conception” and “workable in practice.” Whether the goal was higher qualifications or a fairer geographical distribution, the Board was, in Campbell’s judgment, “a tremendously worthwhile forward step” in the selection of federal lawyers.174 The first edition of the register, composed of 1,820 names, was circulated to appointing officers on February 8, 1943. Most Southern and border states were underrepresented, but by smaller margins than they had been when hiring was left to the discretion of the general counsels. Congressman Ramspeck’s Georgia, for example, was due 47 places on the register but received only 29; Alabama was due 42 but had only 15; Mississippi was due 33 but had only 10. Collectively, Georgians, Alabamians, and Mississippians accounted for only 3% of the register’s places, but that was still better than their 1% showing at the OPA’s Washington headquarters, where the legal staff, in June 1942, included no Mississippians at all. Just under 10% of the register’s eligibles were holders of the veterans’ preference, a lower figure than on some but not all prewar legal staffs.175 Harvard was the most frequently attended law school, but its graduates accounted for only 5% of the total. Although Columbia law graduates took second place, third place went not to Yale alumni but to law-office-trained lawyers (4%). Graduates of over 160 law schools appeared on the register. The leading urban night law schools, such as Brooklyn and Chicago-Kent, had large contingents. Three correspondence schools were represented, as were two schools of law and accounting.176 Judging from the given names on a surviving edition of the list, 8% of the eligibles were women. (In contrast, women made up only 2.4% of all lawyers in the U.S. Census for 1940.)177 Apparently no count of African Americans on the register survives, but five eligibles were alumni of law schools the ABA identified as “colored.” (Four were from Howard, and one had attended a short-lived, unaccredited night school in Washington, D.C., the Robert H. Terrell Law School.)178 The Reed Committee had recommended that no one thirty-five or over be permitted to take the test, but wartime conditions forced the Board to accept anyone under retirement age. Over a third of the register’s eligibles were at least thirty-eight years old.179 When Congress first denied the Board an appropriation, Fahy believed that “with time the work would gain in approval and our position would be stronger.” The register seemed to bear him out. The meritocractic principles of Frankfurter’s faction of the Reed Committee had been compromised, but only to accommodate wartime conditions and political necessity. True, the register’s direct impact on hiring was modest, because new hires peaked before it could be released. Ultimately only 558 eligibles would be appointed from it, accounting for only 8% of all hires approved by the Board between July 1941 and June 1944. All of these were to the temporary war service.180 Still, the Board had shown its procedures to be feasible and had won broad support among lawyers. Skeptical politicians might point to geographical imbalances and the continued prominence of Harvard law graduates, but the results were better, from their standpoint, than before. And there was no denying that the Board had acted on professional motives, not partisan ones, and that it had tried to allocate law jobs without regard to applicants’ place of residence or legal alma mater. Or so one might have thought. VIII. The politics of merit Charles Fahy cleared a simple bill authorizing the Board of Legal Examiners with the Bureau of Budget in December 1942. The next month Congressman Ramspeck introduced it into the House, as H.R. 1025, and it was referred to his Civil Service Committee. At the same time, the Civil Service Commission’s estimate for fiscal year 1944 was readied for the House Appropriation subcommittee on independent offices. It included $86,600 for the Board of Legal Examiners.181 In some respects, the Board’s position at the start of 1943 was stronger than it had been the preceding year, as Fahy had hoped. The written test had gone smoothly. Most of the regional boards were conducting their interviews conscientiously and efficiently, and four national bar groups—the ABA, the National Lawyers Guild, the Federal Bar Association, and the National Bar Association (an organization of African American lawyers)—had declared their support.182 Further, Wechsler had left the Board and been replaced as executive secretary by Ralph Fuchs, whose support of progressive causes, while significant, was less notorious than Wechsler’s argument of Classic and defense of Herndon and Strecker.183 Yet the Board’s position had also weakened because of a general worsening of the political climate for New Dealers. OPA rationing and WPB production controls had made federal bureaucracy a daily presence—and irritant—for consumers and businesspeople. Congressional conservatives resented the outspoken liberalism of OPA chief Leon Henderson. They and others bridled at his ignoring their claims of patronage in their home states. (He would be forced from office before 1942 was over.) A low Democratic turnout and a normal Republican one in the November elections gave the GOP forty-four additional seats in the House and guaranteed that a coalition of Republicans and Southern Democrats would control the new Congress.184 In the first half of 1943, while FDR, husbanding his political capital for the war, put up only modest resistance, Congress dismantled such pillars of the New Deal as the Civilian Conservation Corps, the Works Progress Administration, the National Youth Administration, and the National Resources Planning Board. It also gutted the Farm Security Administration and the Rural Electrification Administration, and it forced Roosevelt to abolish the Board of Economic Warfare, which mandated labor standards for overseas suppliers of raw materials. Senators Byrd and McKellar, who would pass judgment on the Board as members of the Civil Service Committee, used a joint congressional investigation to harry New Dealers in wartime agencies.185 New Deal lawyers felt besieged. In tendering his resignation, OPA general counsel David Ginsburg explained, “I combine in myself almost every handicap that can be brought to an important public office in a war agency in 1943. I am a New Deal Democrat; I am a Jew; and I am young, 31 in April.” Abe Fortas, another New Deal Democrat, Jew, and young lawyer, was pilloried for the draft deferment Secretary of the Interior Harold Ickes obtained for him. Wechsler was gone, but Fortas’s continued presence on the Board of Legal Examiners was bound to draw fire.186 Under the circumstances, the House appropriators’ decision not to fund the Board until the passage of authorizing legislation was no surprise. The warm reception they gave the Board at a hearing and in their committee report was. To be sure, Joe Starnes still had his doubts: Would the Board actually follow the recommendations of the regional committees when the candidates did not subscribe to a favored “political philosophy”? Fahy’s answer was forthright and persuasive: under the Executive Order, the Board had to have the last say as a formal matter, but it “would not impose upon these men … unless we intended to follow their recommendations.” Subcommittee chair Clifton Woodrum thought the members of Virginia’s regional board were “distinguished, high-class people” and would “certainly meet with the universal approval” of the state’s lawyers. The committee ultimately reported to the House that it had “a rather favorable impression of the work of the Board in recent months,” but it still refused to make an appropriation “until pending legislation on the matter is favorably acted upon.”187 That legislation easily cleared Ramspeck’s Civil Service Committee after a brief hearing. Fahy argued that the Board was better than its most likely real-world alternative, in which “whoever can personally persuade a particular appointing officer that he is the man, gets the position.” The strategy of enlisting the local lawyers through the regional boards seemed to be working. An Ohio congressman reported “that the bar association of my county back home thinks [the Board] is a very fine set-up.” Another congressman did have to be assured that the graduates of elite law schools would not be favored. Somewhat surprisingly, the skeptic was not a Protestant from the hinterland but an Orthodox Jew and night-school graduate from New York City’s Lower East Side. After determining that Fahy was a Georgetown alumnus, Arthur G. Klein confided that, while a member of the SEC’s legal staff, he had been very troubled by “the predominance of the young lawyers from the Harvard Law School, some in very high positions, presuming to tell the businessmen of this country how to run their businesses.” Fahy replied that on the just-released register, positions were widely distributed, “not only geographically but also as to law schools generally.” Ramspeck emphatically seconded him.188 The committee voted its approval at the end of the hearing, and the bill was placed on the House’s consent calendar, where it could be called up with other ostensibly uncontroversial bills and passed without debate by unanimous consent. “Observers feel fairly certain the bill will win approval,” a legal newspaper reported. “However, in view of past opposition to the board, they are keeping their fingers crossed.” They were right to do so. When the bill first came up, several congressmen still suspected a New Deal plot and asked that it be passed over. Ramspeck met their concern with a fresh resolution of support from the ABA’s House of Delegates, but when the bill came up for a second time, another objection—that it would “destroy the preference that has been granted to those men who served honorably in the World War”—proved more difficult to surmount.189 The origins of the objection ran back to the unhappy discovery of a New Jersey disabled veteran that although he had, with the help of a ten-percent bonus, obtained a passing grade on the competitive examination, he had not even made it onto the register, when he had expected, in light of the Civil Service Commission’s prior practice, to stand at or near the top of the list. An investigation revealed that the New Jersey lawyer’s augmented score was still below the state’s high cutting point, so he did not qualify for further consideration.190 The veteran alerted the Disabled American Veterans and the American Legion, which launched a letter-writing campaign that brought the Board to terms. The DAV’s national director proposed a proviso requiring the Board to “give full force and effect to all laws, executive orders, and civil service rules” relating to the veterans’ preference. Fahy agreed, and, with the proviso, the bill passed the House by unanimous consent on April 19 and was sent to the Senate, where it was referred to the Civil Service Committee.191 The make-up of the ten-person committee gave Fahy grounds for optimism. To be sure, it included two anti-administration Republicans, but a third Republican, Harold Burton, was a liberal, and a fourth, the North Dakotan William Langer, enjoyed crucial support from the Non-Partisan League. Harry F. Byrd was a confirmed opponent of the administration, but Walter George, a target of FDR’s 1938 purge, had been supporting the administration since Pearl Harbor. The chairman, Sheridan Downey, was an outspoken California progressive. Presumably the Nevada Democrat James Scrugham, a co-sponsor of legislation to codify the Civil Service Commission’s prewar regulations on the veterans’ preference, would be satisfied with the proviso if the veterans’ groups were. McKellar still had his patronage and was attended to by his fellow Tennessean, Walter Armstrong, who joined the Board after leaving the ABA’s presidency.192 Downey assured Fahy that the bill would pass once it reached the Senate floor, but his prolonged absence from Washington in the late spring pushed his committee’s consideration of it into June, in the midst of an end-of-the-fiscal-year legislative frenzy. Unable to gather a quorum, Downey ordered a telephone poll of the committee’s members. Reportedly seven voted in favor of the bill before Langer’s protest brought the tally to a halt. Even so, insiders thought there was “every reason to expect the final decision will be favorable.”193 The hearing Langer demanded convened on June 23, 1943. Fahy made the case for the Board largely upon the promise of the competitive examination and the register for the junior grades. “The idea was to bring the profession itself into cooperation with regular Government officials,” he explained. “The local people, professional men of standing and judges, pass upon their qualifications and grade them and advise us as to the relative grades of those men in their own State.” When opponents suggested that the unranked register might be manipulated on behalf of New Dealers, New York Senator James Mead pointed out that the proper question was whether the Board’s system, which took lawyers from every section and law school of the country, was “better than no system at all?”194 Sharp and persistent questions from Senators Byrd and Langer and the rambling, innuendo-strewn testimony of the newspaperman George Riley exhausted the ninety minutes allotted to the hearing. Downey was forced to appoint a subcommittee and hold further hearings. Many of the criticisms were of doubtful merit but some rhetorical force. Byrd and Langer deprecated OPA lawyers in their home states. Those in Virginia, Byrd scoffed, were “really not lawyers at all.” Those in North Dakota, Langer complained, were “always mixing into administrative matters and demanding they be consulted first and finally before any actions are taken.” He refused to vote for “any scheme to perpetuate any more Frankensteins.” Both senators noted Fortas’s membership on the Board, his draft deferment, his $10,000 salary as Undersecretary of the Interior, and the fact that his wife, Carolyn Agger, was paid $5,600 as a lawyer in the Department of Justice’s Tax Division.195 Three other objections were more weighty. The first came from the veterans’ lobbyists, who belatedly decided that the proviso won in the House would not give them what they really wanted, the top slots on ranked registers. Their opposition was in itself enough to account for Scrugham’s negative vote. Langer, as well, complained that the “small-fry legal board” would deny veterans jobs “simply because they studied their law books in the fox holes of Guadalcanal or on the Tunisian front” rather than at Harvard.196 A second objection came from government clerks. The Board’s competitive examination for entry-level legal jobs did not simply cut off the influence of patronage; it also removed the inside track nonlegal clerks had enjoyed in pursuing junior legal grades. Of the 2,960 incumbents of legal positions in 1943, almost a third had started in nonlegal posts. The Board remained adamant. “No more threatening cause of mediocrity and lack of vision can be imagined than the practice of almost routinely advancing non-professional employees to professional positions without adequate testing of their professional qualifications,” Fuchs explained.197 Aspiring clerks usually were too diffuse a constituency to be an effective political force, but the “attorneys” of the General Land Office—many of them nonlawyers who, under a long-established practice, could be promoted to legal positions—were an exception. When the Board promulgated a regulation abolishing this career path, the Land Office attorneys gained the backing of the AFL union for government employees and descended upon the Senate committee. The union lobbyist complained that the Board let young Harvard law graduates pass judgment on “men in the Land Office who, for twenty or twenty-five years, have devoted their entire lives to that particular line of legal work.” Fuchs thought their opposition was a greater obstacle even than congressmen’s hunger for patronage.198 A third objection was the most fundamental: the selection of government lawyers ought not to be entrusted to an exclusive profession. This objection was most fiercely voiced by Langer, who considered himself a champion of underdogs. Of course he identified the usual suspect. “I am unwilling to crucify any man on a cross constructed by a clique taking their orders from an Associate Justice of the Supreme Court, a former professor at Harvard University, whose students were known as ‘Frankfurter’s hot dogs,’” he wrote in a speech he threatened to deliver in the Senate. But Langer also took on the ABA, which he denounced as a “union of lawyers,” bent on limiting entry to the graduates of accredited law schools. By “what certified right,” Langer demanded, did “the Bar Association, or for that matter, the American Medical Association,” exclude the “poor boy and poor girl who seeks to better their circumstances in life,” including young men employed “in this very Chamber” and enrolled in a local law school? Fahy argued that entrusting the hiring of government lawyers to the Board was the best way to “build up the caliber of the legal service of the Government.” Langer denounced it as a plot to “foist undemocratic mechanics into our federal public service.”199 When the hearings ended on June 28, the committee deadlocked, with Downey, George, McKellar, Mead, and the Republican Harold Burton in favor of the bill and Byrd, Scrugham, and the Republicans George Aiken, Langer, and Wayland Brooks opposed. Supporters postponed a committee vote until after the summer recess.200 In the interim, contingency plans were put into effect. The Board’s staff and functions were transferred to the Civil Service Commission under the direction of a newly constituted Committee on Legal Personnel, consisting of precisely the same membership as the Board.201 The staff continued to conduct noncompetitive examinations but lacked the funds to administer a second written test. Fuchs continued to seek an acceptable compromise with the veterans’ groups, and Fahy continued to lobby the House for an appropriation.202 The Board’s opponents in the Senate Civil Service Committee held firm, however, and the members and staff of the Board drifted away. “Our bill remains in a moribund state,” Fahy lamented to McReynolds in March 1944. The failure “to secure any action in the Senate is strangling the work to death.”203 At last, rather than see the hiring of lawyers fall into the hands of the Civil Service Commission, the Board’s supporters signaled they would accept a proviso in the 1945 appropriations act denying the Commission funding for the examination of lawyers. After a confused interval, in 1947 President Harry Truman placed all government lawyers not subject to Senate confirmation on Schedule A.204 A decade after the President’s Committee on Administrative Management had called for the extension of the civil service “upward, outward, and downward,” most federal lawyers—including some in previously covered positions—were outside of the civil service. IX. An aristocracy of civil service employees The birth of the Board of Legal Examiners was, to some extent, fortuitous. Just as the Civil Service Commission made its bid to capture the lawyers, exposés of Democratic party officals’ partisan deployment of relief funds in the primary and general elections of 1938 inclined Roosevelt to see expanding the civil service as a shrewd political move.205 Then, as he pondered whether to cover Schedule A lawyers, he named Felix Frankfurter to the Supreme Court. When he left Cambridge, Frankfurter lost his direct access to Harvard’s top law students, but he acquired in the Reed Committee a chance to institutionalize his old role on a national basis. Ensconced in the Marble Palace, in easy reach of committee’s staff, he had his vision of elite law graduates as the United States’ equivalent of the British Civil Service written into its report. The Board of Legal Examiners was the result. Frankfurter would have no consideration placed before the intellectual acuity that to him counted as professional merit. When Congressman Ramspeck observed that, after all, the United States was not the United Kingdom, that it did not recruit civil servants from a landed, Oxbridge-educated class, that his approach risked building “up in Washington an aristocracy of civil service employees whose children and grandchildren” might monopolize public power, and that “we can only go as fast as public opinion will support us,” Frankfurter conceded nothing. “You know very well that public opinion has moved enormously away from certain conceptions that were current, say a hundred years ago,” he lectured Ramspeck. “Public opinion isn’t something fixed and static, about which you are just the rubber stamp. You and other leaders in the House and Senate partly create public opinion.”206 Biddle, Fahy, Wechsler, and Fuchs were more welcoming of another piece of advice from Ramspeck: “We can only maintain a system which will command the support of the Congress and that means, of course, the support of the people who elect the Congressmen.”207 When accommodating a political fact of life would merely qualify the principle of meritocractic hiring, the Board made the necessary concessions. Its staff invented “cutting points” to keep some states from getting too many spots on the register and the “review belt” to keep others from getting too few. Placing veterans at the top of a ranked list was out of the question, but they kept their bonus points and acquired a tie-breaker. The Board also tried to create new political facts by giving a role in the selection process to some of the congressmen’s more influential constituents, lawyers eminent in their districts. Board official’s knew that the hiring of government lawyers could not be put above politics, but they also knew that politics could be altered to give it a fighting chance. Mobilization and war worked against the Board, however. Its creators imagined it as a bridge between law schools and the legal divisions, but conscription and Pearl Harbor set law graduates on a different path, into the military. Instead of recruiting good lawyers for the federal government, the Board spent most of its time fending off bad ones. As the number of Americans in uniform swelled to over 16 million, veterans’ groups acquired unprecedented power in Congress. The lobby that pushed the GI Bill through Congress readily found allies among patronage-hungry politicians who knew how to stir up populist resentment of elites.208 Together, they killed the Board. The campaign for a unified federal legal service ended, but the need for able lawyers, free to express and act on their best professional judgment without fear of partisan reprisal, continued. Indeed, recent fulminations against the “Deep State” not only arraign civil servants for their political beliefs but also dismiss their claims of knowledge and expertise beyond the ken of the average citizen.209 Critics of the Board of Legal Examiners never went so far: even Langer merely attacked a prominent institution of the legal profession, the ABA, and not the fundamental assumption that the professions are “communities of the competent.” Perhaps the wellsprings of today’s popular antistatism lie in the widening economic gap between members of the American upper middle class and their less privileged fellow citizens.210 If so, simply recruiting more broadly from an existing pool of law graduates or rallying lawyers outside the Beltway to the defense of government lawyers will probably have little effect. But if those steps were combined with efforts to make a legal career a realistic aspiration for more Americans, perhaps the result would be an effective counter to the political forces that currently menace the professional authority of lawyers in the federal government. Footnotes 1 James H. Rowe, Jr., to Thomas G. Corcoran (“Tuesday”) in Thomas G. Corcoran Papers, box 211 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Corcoran Papers]. After leaving Justice Holmes, Rowe surveyed the administration’s legal divisions while on the staff of the National Emergency Council, a short-lived, interdepartmental committee. James H. Rowe, Jr., to Fred A. Ironside, Jr. (Sept. 26, 1934) in Records of the Office of Government Reports, record group 44, entry 12, box 61 (on file with the National Archives, College Park, MD). 2 Kiran Klaus Patel, The New Deal: A Global History 78 (2016). 3 Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 226-27 (1976). 4 David Plotke, Building a Democratic Order: Reshaping American Liberalism in the 1930s and 1940s (1996); Martin Shefter, Political Parties and the State 82-83 (1994); Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (1993). 5 Daniel Carpenter, The Forging of Bureaucratic Autonomy (2001); Richard S. Kirkendall, Social Scientists and Farm Politics in the Age of Roosevelt (1966); Kenneth Finegold & Theda Skocpol, State and Party in America’s New Deal (1995). 6 White House Janizaries, Time Mag., Sept. 12, 1938, at 22; see Joseph Alsop & Robert Kintner, Men around the President (1939). 7 On the technical and normative authority of lawyers, see Terence C. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment 29-55 (1987). 8 Andrew Jackson, First Annual Message (Dec. 8, 1929), in The American Presidency Project (last visited Nov. 4, 2017), http://www.presidency.ucsb.edu/ws/?pid=29471. 9 1929 U.S. Civil Service Comm’n Ann. Rep. 35; 1932 id. at 26-27. The 1930 U.S. Census tallied 160,605 lawyers. Terence C. Halliday, Six Score and Ten Years: Demographic Transitions in the American Legal Profession, 20 Law & Soc’y Rev. 53, 77 (1986). The Civil Service Commission’s count of government lawyers was based on the title of a position, such as attorney, law clerk, trial examiner, adjudicator, and legal advisor. This approach excluded recipients of law degrees and/or members of the bar who occupied “nonlegal” positions, the plight of a number of legally trained women (and others). Mary Connor Myers, Women Lawyers in Federal Positions, 19 Women L.J. 28-31 (1932). “False positives”—nonlawyers occupying “legal” positions—probably accounted for fewer errors but included adjudicators in the General Land Office of the Department of the Interior. To Create a Board of Legal Examiners in the Civil Service Commission: Hearings Before a Subcomm. of the Senate Comm. on Civil Service, 78th Cong. 69-70, 104-05, 111-12 (1943). 10 Leonard D. White, Government Career Service 46 (1935). 11 1932 U.S. Civil Service Comm’n Ann. Rep. 26-27; Memorandum: Experience of the Civil Service Commission with Competitive Examinations for Attorney Positions in the Government Service at 1-2 (Jan. 5, 1939), in Frank Murphy Papers, reel 111 (on file with the Bentley Historical Library, University of Michigan, Ann Arbor, MI) [hereinafter referred to as Murphy Papers]. 12 John Q. Cannon to Henry Wolfe Biklé (May 5, 1939), reel 108, in Felix Frankfurter Papers (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as FF-LC]; U.S. Civil Service Commission, Memorandum: Junior Attorney Examination: Federal Communications Commission (1935), in Records of the President’s Committee on Civil Service Improvement, record group 220, box 11 (on file with the Franklin D. Roosevelt Library, Hyde Park, NY) [hereinafter referred to as PCCSI Records]. 13 In addition, veterans could not be rejected on the basis of age, so long as they were below the age of mandatory retirement, and they were eligible for appointment even if the state of their residence already had its quota of government appointments. Act of July 11, 1919, 41 Stat. 37; Exec. Order No. 5068 (Mar. 2, 1929); see K.C. Vipond, Report on the Veterans’ Preference in the Federal Civil Service, in 4 President’s Committee on Civil Service Improvement, Documents and Reports to Accompany Report on Civil Service Improvement, pt. 2, at 58-60 (1942) [hereinafter referred to as PCCSI, Documents and Reports]; Herbert Wechsler, Veterans’ Preference and the Competitive Examination (1941), in Records of the U.S. Civil Service Commission, record group 146, entry 1032, box 1 (on file with the National Archives, College Park, MD) [hereinafter referred to as CSC Records]. 14 Report of the Advisory Committee on Lawyers, in 1 PCCSI, Documents and Reports, supra note 13, at 2 n.17; Warner W. Gardner to Charles S. Bell (June 13, 1939), in PCCSI Records, supra note 12, box 10. 15 K.C. Vipond, Memorandum as to Apportionment of Appointments in Washington, D.C., among the States and Territories on the Basis of Population (Apr. 8, 1939), in 4 PCCSI, Documents and Reports, supra note 13, pt. 1, at 133, 136; Vipond, supra note 13, at 61. 16 Fred A. Ironside, Jr., Report to the Executive Director on the Survey of Legal Staffs in Departments and Independent Establishments (Nov. 23, 1934), in 2 PCCSI, Documents and Reports, supra note 13, at 18; Robert Stevens, Law School Legal Education in America from the 1850s to the 1980s 74 (1983). 17 1932 U.S. Civil Service Comm’n Ann. Rep. 26-27. On Schedule A, see Paul P. Van Riper, History of the United States Civil Service 207 (1958). 18 Charles Francis Carusi, Legal Education at the National Capital, 1 Am. L. Sch. Rev. 75, 76 (1903). 19 Fourth Annual Report Interstate Commerce Commission 78, 87 (1890); Seventeeth Annual Report Interstate Commerce Commission 128 (1903); Twentieth Annual Report Interstate Commerce Commission 87 (1906); Mary Connor Myers, Women Attorneys in the Department of Justice, 21 Women L.J. 15 (1935); Law Degree Is Best Asset in Federal Jobs, Am. L. & Law., Feb. 18, 1939, at 20. 20 Albert Henry Aronson, The Lawyer in the Federal Service, 68 U.S. L. Rev. 31, 37 (1934). 21 Harold M. Stephens to Zechariah Chafee (May 19, 1933), in Harold M. Stephens Papers, box 6 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Stephens Papers]; Daniel R. Ernst, Dicey’s Disciple on the D.C. Circuit: Judge Harold Stephens and Administrative Law Reform, 1933-1940, 90 Geo. L.J. 787-812 (2002). 22 Albert L. Hopkins, Autobiography of a Lawyer 96-113 (1966); Memorandum: Former Officers and Employees in Tax Practice (1937), in Records of the U.S. Department of Treasury, record group 56, entry 352, box 14 (on file with the National Archives, College Park, MD); see Ajay K. Mehrotra, Making the Modern American Fiscal State: Law, Politics and the Rise of Progressive Taxation, 1877-1929, at 315 (2013). 23 Charles F. Diggs to Commissioner of Pensions (Dec. 19, 1902), quoted in Carpenter, Forging of Bureaucratic Autonomy, supra note 5, at 50. Diggs seemed to have had some success at the local bar, but, once the Depression came, he decided a government job had its attractions after all. He ended his career as a trial examiner at the Federal Trade Commission. With Words of Cheer, Wash. Post, Jan. 10, 1902, at 2; C.F. Diggs, Scion of Old Family, id., Dec. 28, 1955, at 26. 24 Robert H. Jackson, The Making of a Lawyer, at 277, in Robert H. Jackson Papers, box 258 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Jackson Papers]; E. Barrett Prettyman, The Internal Revenue Chapter, in E. Barrett Prettyman Papers, box 122 (on file with the Manuscript Division, Library of Congress, Washington, DC). 25 2 Robert T. Swaine, The Cravath Firm and Its Predecessors, 1918-1948, at 2-3 (1948). 26 Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years 26-29 (1982); Martin Mayer, Emory Buckner 22-40 (1968); Brad Snyder, House of Truth: A Washington Political Salon and the Foundations of American Liberalism 8-9 (2017). 27 1912 Att’y Gen. Ann. Rep. 8. 28 Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law 153-54 (1956); Mayer, supra note 26, at 174-236. 29 William Lasser, Benjamin V. Cohen: Architect of the New Deal 21 (2002); Parrish, supra note 26, 108; Jerold S. Auerbach & Eugene Bardach, “Born to an Era of Insecurity”: Career Patterns of Law Review Editors, 1918-1941, 17 Am. J. Legal Hist. 9, 17 (1973). 30 Eugene Meyer to Felix Frankfurter (Feb. 19, 1932), in Eugene Meyer Papers, box 22 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Meyer Papers]; Monica Lynne Niznik, Thomas G. Corcoran: The Public Service of Franklin Roosevelt’s ‘Tommy the Cork” 29-31 (1981) (unpublished Ph.D. dissertation., Notre Dame University) (on file with the author); David McKean, Tommy the Cork: Washington’s Ultimate Insider from Roosevelt to Reagan 31-32 (2004). 31 George N. Peek & Samuel Crowther, Why Quit Our Own 20 (1936). 32 1932 U.S. Civil Service Comm’n Ann Rep. 27; Report of the Advisory Committee, supra note 14, at 4; Richard Abel, American Lawyers 278 (1989). 33 Figures for 1934 are from Ironside, supra note 16, at 17. Figures for October 1936 are from ABA Section of Municipal Law, Lawyers in the Civil Service: Their Recruitment, Selection and Opportunities, in 2 PCCSI, Documents and Reports, supra note 13, at 58. Figures for May 1939 are from Report of the President’s Committee on Civil Service Improvement, H.R. Doc. No. 118, 77th Cong., 1st sess., 29-30 (1941) [hereinafter referred to as PCCSI, Report]. 34 Thomas G. Corcoran to Marvin H. McIntyre (Mar. 6, 1937), in Corcoran Papers, supra note 1, box 204. The FCC’s general counsel avoided hiring from the register by making temporary appointments and then obtaining special dispensation for those who scored highly enough on the Civil Service Commission’s exam. Charles Gordon, The Lawyer and the Civil Service, 2 Nat’l L. Guild Q. 295, 299 (1938); Experience of the Civil Service Commission, supra note 11, at 1-2; Exec. Order No. 7201 (Sept. 26, 1935); U.S. Civil Service Commission, Minutes of Proceedings (Oct. 4, 1935), CSC Records, supra note 13, entry 1032, box 37; Jack Garrett Scott to PCCSI (Dec. 11, 1939) in 2 PCCSI, Documents and Reports, supra note 13, at 34-35; Report of the Advisory Committee, supra note 14, at 8 n.11. 35 The post-World War I statute applied to civil-service and non-civil service positions alike. The apportionment rules did not formally bind Schedule A positions until the passage of an amendment to an appropriations act in 1937. Vipond, supra note 15, at 135. 36 Id.; Vipond, supra note 13, at 61. 37 Alexander B. Hawes & James H. Rowe, Jr., Memorandum for the Advisory Committee on Lawyers: Summary of Arguments against Changing the Present Method of Selection of Lawyers (May 22, 1939) in PCCSI Records, supra note 12, box 11. 38 Daniel Scroop, Mr. Democrat: Jim Farley, the New Deal and the Making of Modern American Politics 84 (2006). 39 Warner W. Gardner, Memorandum: National Labor Relations Board: Personnel System for the Legal Staff (Mar. 21, 1939), in FF-LC, supra note 12, reel 107; Dean G. Acheson, Memorandum for the Advisory Committee on Lawyers (May 23, 1939), in James H. Rowe, Jr., Papers (on file with the Franklin D. Roosevelt Library, Hyde Park, NY) [hereinafter referred to as Rowe Papers]; The Reminiscences of Chester T. Lane 376-80 (1951) (on file with the Oral History Collection, Rare Book & Manuscript Library, Columbia University, NY); Report of the Special Committee on the Employment, Classification. Organization and Direction of Lawyers in the Federal Service, 3 Fed. B. Ass’n J. 259 (1938). 40 Warner W. Gardner, Memorandum: Social Security Board: Personnel System for the Legal Staff (Mar. 17 1939), in FF-LC, supra note 12, reel 107. 41 Reminiscences of Chester T. Lane, supra note 39, at 376-80. 42 No alumni of the Howard Law School were listed, and nineteen appointees had no law degree. Memorandum: Legal Division of the Treasury Department: Distribution of Personnel by Law School, in FF-LC, supra note 12, reel 106. For the nonaccreditation of National, Columbus, Southeastern and (until 1940) the Washington College of Law, see Susan K. Boyd, The ABA’s First Section 139-40 (1993). 43 Legal Division of the Treasury Department, supra note 42. On the Treasury Department’s procedures, see To Prevent Discrimination in Legal Appointments and Promotions: Hearing Before a Subcomm. of the Senate Comm. on Civil Service, 75th Cong. 2 (1938); Transcript, Luncheon at the Hotel Raleigh (Aug. 23, 1938), at 7, in Jackson Papers, supra note 24, box 82; Franklin S. Pollak, Memorial of Herman Oliphant, in Association of the Bar of the City of New York, 1939 Ann. Rep. 435-36. 44 For all legal staffs other than the Antitrust Division and the NLRB, see the series of tables subtitled Distribution of Personnel by Law Schools, in PCSSI Records, supra note 12, box 14. For the NLRB, see Memorandum: Legal Staff, an enclosure in letter from Charles Fahy to Felix Frankfurter (Nov. 15, 1939), in FF-LC, supra note 12, reel 106. For the Antitrust Division, see Attorneys Appointed in the Antitrust Division since July 1, 1938, to October 7, 1938, in Thurman Wesley Arnold Papers, box 14 (on file with American Heritage Center, University of Wyoming, Laramie, WY) [hereinafter referred to as Arnold Papers]; Departments of State, Justice, and Commerce Appropriation Bill for 1940: Hearings before the Subcomm. of the Senate Comm. on Appropriations, 76th Cong. 161-62 (1939). 45 Interview by Katie S. Louchheim with Benjamin V. Cohen (Mar. 5, 1976) in Katie S. Louchheim Papers, box 72 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Louchheim Papers]. 46 Jerold S. Auerbach, From Rags to Robes: The Legal Profession, Social Mobility and the American Jewish Experience, 65 Am. Jewish Hist. Q. 249-84 (1976). 47 Frank Watson, transcript of recollections (June 1976), in Louchheim Papers, supra note 45, box 72. 48 Gardner, National Labor Relations Board, supra note 39; Gardner, Social Security Board, supra note 40; Warner W. Gardner, Memorandum: The Securities and Exchange Commission’s Personnel System for the Legal Staff (Mar. 2, 1939), in FF-LC, supra note 12, reel 107. 49 Myers, supra note 19, at 13. 50 Jerold Auerbach & Eugene Bardach, supra note 29, at 15; see G. Edward White, Felix Frankfurter, the Old Boy Network, and the New Deal: The Placement of Elite Lawyers in Public Service in the 1930s, 39 Ark. L. Rev. 631-67 (1986); Sujit Raman, Felix Frankfurter and his Protégés: Re-examining the “Happy Hot Dogs,” 39 J. Sup. Ct. Hist. 79-106 (2014). 51 100 New Deal Aides Are Traced to Professor Frankfurter’s Influence, N.Y. Herald Tribune, Oct. 27, 1935, at 1, 4; Roosevelt and Frankfurter: Their Correspondence, 1928-1945, at 309 (Max Freedman ed., 1967). 52 Thurman W. Arnold to Jerome N. Frank (May 27, 1938), in Arnold Papers, supra note 44, box 12; Niznik, supra note 30, at 385-87; The Making of the New Deal: The Insiders Speak 107, 120, 232 (Katie S. Louchheim ed., 1983); McKean, supra note 30, at 41; James L. Fly to Felix Frankfurter (Sept. 11, 1934), in James Lawrence Fly Papers, box 1 (on file with Rare Book & Manuscript Library, Columbia University, New York, NY). 53 The quoted language is Russell Lord’s paraphrase of the after-dinner remarks of John Nance Garner, in The Wallaces of Iowa 353 (1947), quoted in Laura Kalman, Abe Fortas: A Biography 33 (1990). 54 The Janizariat, Time, Sept. 12, 1938, at 24; Ernest K. Lindley, Roosevelt and Farley Reach Breaking Point, Brooklyn Daily Eagle, July 23, 1939, at 18. 55 Niznik, supra note 30, at 187-205, 212, 276-377; Joseph Lash, Dealers and Dreamers 209-14, 291-316, 351-70 (1988); Susan Dunn, Roosevelt’s Purge: How FDR Fought to Change the Democratic Party (2012). 56 Harold M. Stephens to L. Royal Martineau (Feb. 12, 1937), in Stephens Papers, supra note 21, box 130. 57 84 Cong. Rec. 9674-75 (1938). White’s LL.B. was from the University of Texas. He received an LL.M. from Columbia and, in 1933, an S.J.D. from Harvard. 9 Who Was Who in America 377 (1989). 58 James H. Rowe to Thomas G. Corcoran (Mar. 17, 1938), in Rowe Papers, supra note 39, box 10; Oscar S. Cox to Paul J. Kern (July 10, 1939), in PCCSI Records, supra note 12, box 14. 59 George D. Riley, U.S. and Us, Wash. Times-Herald, Aug. 2, 1939, at 19. 60 National Interest Is Keen in Anti-Discrimination Measure, Am. L. & Law., Apr. 22, 1939, at 1, 8. 61 84 Cong. Rec. 9675 (1939). 62 Id. at 9379-80, 9675-76. 63 Anti-Discrimination Measure Progresses, Am. L & Law., Sept. 9, 1939, at 2. Senate action was held up when an anti-discrimination provision was added to another measure, the Ramspeck bill, which dealt more generally with the civil service. “Under strong pressure from the federal agencies this provision was eliminated in conference,” a newspaperman reported. “After that it was so late in the session that effective work for the Sheppard bill became difficult.” Hold Sheppard Bill Has Had Effect Desired, id., Jan. 4, 1941, at 5. 64 Homer S. Cummings to Civil Service Commission, Sept. 10, 1938, in Murphy Papers, supra note 11, reel 111; Homer S. Cummings, diary (Dec. 9, 1938), Homer S. Cummings Diaries, 1919-1956 (on file with the Manuscript Division, Library of Congress, Washington, DC); Making of the New Deal, supra note 52, at 287; Oscar S. Cox, diary (Jan. 24, 1939), in Oscar S. Cox Papers, box 145 (on file with the Franklin D. Roosevelt Library, Hyde Park, NY) [hereinafter referred to as Cox Papers]; Exec. Order No. 8044, 4 Fed. Reg. 497 (Jan. 31, 1939). 65 James H. Rowe to Thomas G. Corcoran, supra note 1; Sidney Fine, Frank Murphy: The Washington Years 22-35 (1984). 66 James H. Rowe to Franklin D. Roosevelt (Apr. 9, 1941), in Rowe Papers, supra note 39, box 7. 67 Ex-Local Man Becomes Assistant to President, Battle Creek Enquirer & Evening News, July 13, 1939, at 1, 18; Arthur W. Macmahon & John D. Millett, Federal Administrators 27-28 (1939). 68 Warner W. Gardner, Pebbles from the Paths Behind: The Public Path, 1909–1947, at 98 (1989). 69 Frank Murphy to Stanley F. Reed (Mar. 25, 1939), Murphy Papers, supra note 11, reel 68; [William Brownrigg,] Confidential Memorandum to Mr. Justice Murphy (Mar. 20, 1940), Murphy Papers, supra note 11, reel 117; James H. Rowe to Franklin D. Roosevelt (Feb. 25, 1941), in Rowe Papers, supra note 39, box 7. 70 Hawes & Rowe, supra note 37. 71 Warner W. Gardner to James H. Rowe (May 24, 1939), in PCCSI Records, supra note 12, box 9. 72 On Biklé and the Harvard deanship, see Morton Keller & Phyllis Keller, Making Harvard Modern: The Rise of America’s University 113-14 (2001). 73 Report of the Advisory Committee, supra note 14, at 7. 74 Felix Frankfurter, The Public and Its Government 145 (1930); see Felix Frankfurter to Herbert Bayard Swope (June 22, 1934), in Joseph P. Kennedy Papers, box 83 (on file with the John F. Kennedy Library, Boston, MA); Felix Frankfurter, The Young Men Go to Washington, 13 Fortune 61 (1936); Felix Frankfurter to Milton Katz (May 25, 1936), in Milton Katz Papers, box 27 (on file with Harry S. Truman Library, Independence, MO); Felix Frankfurter to Eugene Meyer (May 24, 1938), in Meyer Papers, supra note 30, box 22. 75 Felix Frankfurter to Henry Wolf Biklé (Jan. 11, 1936), in FF-LC, supra note 12, reel 14. 76 Report of the Advisory Committee, supra note 14, at 1. 77 On the backward-looking nature of legal education, White quoted a memorandum by the University of Minnesota law professor Oliver Field, an advocate of Continental traditions of legal education. White, supra note 10, at 46; see Leonard D. White to Oliver P. Field (Feb. 2, 1935), in Leonard D. White Papers, box 6 (on file with the Special Collections Research Center, University of Chicago, Chicago, IL) [hereinafter referred to as White Papers]. 78 Leonard D. White, Tentative Draft of Report, in FF-LC, supra note 12, reel 107. 79 Oscar S. Cox to Edward Foley (Oct. 16, 1939), in Cox Papers, supra note 64, box 41; untitled memorandum (Nov. 25, 1939), in PCCSI Records, supra note 12, box 14; Reminiscences of Chester T. Lane, supra note 39, at 567-68. Ginsburg continued to assist Frankfurter on Reed Committee matters. David Ginsburg to Oscar S. Cox (Mar, 18, 1940), in Cox Papers, supra note 64, box 12. 80 Report Submitted by Solicitors and General Counsel of Certain Government Departments and Agencies on Recommendations for Modification of Existing Civil Service Procedure for Attorney Positions (Dec. 20, 1939), in 2 PCCSI, Documents and Reports, supra note 13, at 22-29. See also Exhibit A of this document: Statement of Chester T. Lane, General Counsel of the Securities and Exchange Commission, on Behalf of Solicitors and General Counsel of Certain Government Agencies, Prepared for Use at Hearing of the President’s Committee on Civil Service Improvement (Dec. 8, 1939). 81 Transcript of hearing at 276-79 (Dec. 8, 1939), in PCCSI Records, supra note 12, box 19. 82 William H. McReynolds to Leonard D. White (Jan. 21, 1940), Stanley F. Reed to Leonard D. White (June 1, 1940), in White Papers, supra note 77, box 1; Stanley F. Reed to Franklin D. Roosevelt (June 12, 1940), Franklin D. Roosevelt to Stanley F. Reed (June 19, 1940), in President’s Personal File, number 4877 (on file with the Franklin D. Roosevelt Library, Hyde Park, NY). 83 President’s Committee on Civil Service Improvement, Minutes of the Executive Session (Sept. 30, 1940), in FF-LC, supra note 12, reel 111 [hereinafter referred to as PCCSI, Minutes]; Warner W. Gardner, Alternate Draft of Chapter V of Committee Report, in FF-LC, supra note 12, reel 106; Leonard D. White to Stanley F. Reed (Nov. 26, 1941), in PCCSI Records, supra note 12, box 3; Stanley F. Reed to Leonard D. White (Dec. 2, 1940), in White Papers, supra note 77, box 1; Felix Frankfurter to Frank Murphy (Dec. 10, 1940), in Felix Frankfurter Papers, pt. 3, reel 3 (on file with the Harvard Law School Library, Cambridge, MA); Felix Frankfurter to Stanley F. Reed (July 28, 1939), in id., pt. 3, reel 2; Jerry Kluttz, The Federal Diary, Wash. Post, Jan. 22, 1941, at 17. 84 PCCSI, Minutes (Sept. 30, 1940), supra note 83, at 76; PCCSI, Report, supra note 33, at 31. 85 Transcript of hearing at 219 (Nov. 2, 1939), in PCCSI Records, supra note 12, box 19. 86 PCCSI, Report, supra note 33, at 34; PCCSI, Minutes (Jan. 21, 1941), supra note 83, at 74; (Sept. 30, 1940), id. at 82. 87 PCCSI, Minutes (Sept. 30, 1940), supra note 83, at 88-92; PCCSI, Report, supra note 33, at 35. 88 PCCSI, Report, supra note 33, at 36-38. For the Reed Committee’s familiarity with Yale’s test, see the folder Legal Aptitude Tests, in Cox Papers, supra note 64, box 41. On admissions testing by law schools before the LSAT, see William P. LaPiana, Merit and Diversity: The Origins of the Law School Admissions Test, 48 St. Louis U. L.J. 955-90 (2004). 89 Dunn, the engineer, was “very much impressed … with Justice Frankfurter’s eloquent statement.” Gano Dunn to Stanley F. Reed (Oct. 1, 1940), in PCCSI Records, supra note 12, box 3. 90 Notes on Frank Murphy dictated for the use of Albert Hyman (Jan. 2, 1952), in James Kerr Pollock Papers, box 14 (on file with the Bentley Historical Library, University of Michigan, Ann Arbor, MI); Charles S. Bell to McReynolds (Jan. 10, 1941), in PCCSI Records, supra note 12, box 3; George D. Riley, U.S. and Us, Wash. Times-Herald, Feb. 25, 1941, at 8. 91 John Q. Cannon, Memorandum: Inclusion of Legal Positions in the Competitive Classified Civil Service (Feb. 2, 1939), in Rowe Papers, supra note 39, box 7. 92 PCCSI, Minutes (Sept. 30, 1940), supra note 83, at 59. 93 James H. Rowe to Franklin D. Roosevelt (Feb. 25, 1941), in Rowe Papers, supra note 39, box 7; Lane, supra note 79, at 569-70; Robert H. Jackson, Memorandum for Judge Townsend (Mar. 8, 1941), in Jackson Papers, supra note 24, box 82. 94 PCCSI, Minutes (Jan. 21, 1941), supra note 83, at 78. 95 Gardner, supra note 68, at 122. 96 Future of Civil Service System for Legal Jobs in Government Uncertain, Am. L. & Law., Oct. 25, 1941, at 1, Believe Test of Legal Jobs to Start Soon, id., Dec. 13, 1941, at 1, 4. 97 Walter Gellhorn, Memorandum of Conversation with Congressman Walter (June 2, 1939), in Records of the U.S. Department of Justice, record group 60, entry 376, box 8 (on file with the National Archives, College Park, MD). 98 Frankfurter to Charles E. Wyzanski, Jr. (Oct. 22, 1934), in Charles E. Wyzanski, Jr., Papers, box 1 (on file with the Harvard Law School Library, Cambridge, MA); Charles E. Wyzanski, Jr., to Augustus N. Hand (Oct. 28, 1934), in Charles E. Wyzanski, Jr., Papers, box 26 (on file with the Massachusetts Historical Society, Boston, MA); see 2 American National Biography 729-30 (1999). 99 Durr was soon appointed to the FCC. John A. Salmond, The Conscience of a Lawyer: Clifford J. Durr and American Civil Liberties 74 (1990). 100 Treasury Counsel, Am. L. & Law., May 27, 1939, at 5. On Foley and Corcoran, see McKean, supra note 30, at 32, 126-27. 101 He became Undersecretary of the Interior in 1942. Beverly Smith, Uncle Sam Grows Younger, 117 Am. Mag. 63 (1934); U.S. Civil Service Commission, Declaration of Appointee, in Abe Fortas Papers, ser. 5, box 163 (on file with Manuscripts and Archives, Yale University Archives, New Haven, CT) [hereinafter referred to as Fortas Papers]; Kalman, supra note 53, at 27-76. 102 He was soon appointed to the NLRB. 11 Who Was Who in America 230 (1996). 103 John P. Frank to Herbert Wechsler (July 25, 1942), in CSC Records, supra note 13, entry 1032, box 1; Herbert Wechsler, Symposium on Lawyers under the United States Civil Service, 9 Am. L. Sch. Rev. 1313 (1942). 104 Independent Offices Appropriation Bill for 1943: Hearings Before the Subcomm of the Senate Comm on Appropriations, 77th Cong. 11, 112, 115 (1942); Leonard D. White to Ralph F. Fuchs (Mar. 8, 1943), in Papers of Leonard D. White and the President’s Committee on Civil Service Improvement, box 6 (on file with the Special Collections Research Center, University of Chicago, Chicago, IL). 105 2 Who Was Who in America 497, 575 (1950); Independent Office Appropriation Bill, supra note 104, at 2; To Create a Board of Legal Examiners in the Civil Service Commission: Hearing Before the House Comm. on the Civil Service, 78th Cong. 2 (1943); Francis Biddle to James H. Rowe (May 16, 1941), in Jackson Papers, supra note 24, box 82. 106 7 Who Was Who in America 262-63 (1981); 10 American National Biography 428-29 (1999). Hays was a close friend of the Board’s first executive secretary, Herbert Wechsler. He provided entrées to Columbia psychologists researching aptitude testing and, with Fortas’s help, administrators of Yale Law School’s aptitude test. The Reminiscences of Herbert Wechsler 1456 (1951) (on file with the Oral History Collection, Rare Book & Manuscript Library, Columbia University, New York, NY); Paul R. Hays to Maurice T. Van Hecke (July 1, 1941), Board of Legal Examiners, Minutes (July 8, 1941), A. B. Crawford to Herbert Wechsler (July 28, 1941), in Paul R. Hays Papers, box 15 (on file with the Rare Books and Manuscript Library, Columbia University, New York, NY) [hereinafter referred to as Hays Papers]. 107 Independent Office Appropriation Bill, supra note 104, at 30; see 4 Who Was Who in America 965 (1968); Maurice T. Van Hecke to Charles Fahy (Jan. 28, 1943), in Charles Fahy Papers, box 32 (on file with the Franklin D. Roosevelt Library, Hyde Park, NY) [hereinafter referred to as Fahy Papers]. 108 Thomas I. Emerson, Young Lawyer for the New Deal 90 (1991). 109 Peter H. Irons, The New Deal Lawyers 234-35 (1982); Yale Biographical Dictionary of American Law 190-91 (Roger K. Newman, ed., 2009); Independent Office Appropriation Bill, supra note 104, at 35; Bill Brinkley, Appeals Judge Fahy Won Ruling Upholding Wagner Act, Wash. Post, Nov. 8, 1949, at B1; Charles Fahy, Reflections, 62 Geo. L.J. 1295-98 (1974). 110 Gardner, supra note 68, at 110. 111 Emerson, supra note 108, at 80. 112 Poem: Whispering Charlie, in Philip Levy Papers, box 1 (on file with the Olin Library, Wesleyan University, Middletown, CT); interview by Susan Low Bloch with Lloyd Culter (May 20, 1992), 19, in Oral History Program, Historical Society of the District of Columbia Circuit, box 1 (on file with the Manuscript Division, Library of Congress, Washington, DC). 113 Warner W. Gardner, untitled memorandum (Mar. 1, 1939) in PCCSI Records, supra note 12, box 10. 114 Jerry Kluttz, The Federal Diary, Wash. Post, Dec. 5, 1941, at 25. 115 Independent Office Appropriation Bill, supra note 104, at 36. 116 Gardner, supra note 68, at 110. 117 Reminiscences of Herbert Wechsler, supra note 106, at 172; Gardner, supra note 68, at 99; Herbert Wechsler to Harry B. Mitchell (Oct. 14, 1942), in William H. McReynolds Papers, box 2 (on file with the Franklin D. Roosevelt Library, Hyde Park, NY) [hereinafter referred to as McReynolds Papers]. 118 Frank would go on to clerk for Supreme Court Justice Hugo Black, teach at the Yale Law School, have a distinguished career at the bar, and write important works of legal history and biography. Yale Biographical Dictionary, supra note 109, at 202-03. On Lesar, Weihofen and Fuchs, see 1950-51 Ass’n Am. L. Sch., Teachers’ Directory 188, 319, 122-23; Ralph F. Fuchs, Law School in Transition, 3 Wash. U. L. Sch. Mag. 10-17 (Winter 1981-82). 119 Herbert Wechsler to Wiley Rutledge (Sept. 26, 1941), in Wiley B. Rutledge Papers, box 11 (on file with the Manuscript Division, Library of Congress, Washington, DC) [hereinafter referred to as Rutledge Papers]. See also Herbert Wechsler, Memorandum: A Federal Civil Service Program for Lawyers: The Work of the Board of Legal Examiners (Sept. 30, 1941), in id.; Herbert Wechsler, A Federal Civil Service Program for Lawyers: The Work of the Board of Legal Examiners, 1 Law. Guild Rev. 8 (1941). 120 Wechsler, supra note 103, at 1312; Wechsler, supra note 117, at 174. 121 Government is Hiring Lawyers at Rapid Rate, Am. L. & Law., July 19, 1941, at 5. 122 Report of the Advisory Committee, supra note 14, at 4; 85 Cong. Rec. 5444 (1942); Report to the President of the United States of the U.S. Board of Legal Examiners (1941-1944), appendix F (on file with U.S. Department of Justice Library, Washington, DC) [hereinafter referred to as BLE Report]; Older Lawyers Are Being Hired for Government Law Positions, Am. L. & Law., Oct. 3, 1942, at 1, 5, High Turnover of Lawyers in Federal Posts, id., Dec. 19, 1942, at 1; Ralph F. Fuchs, An Outline of the Work, 12 B. Examiner 40 (1943); Ralph F. Fuchs, Post War Problems of the Legal Profession from the Standpoint of Civil Service Examining Agencies, 19 Ind. L. J. 322-23 n.6 (1944); Peyton Ford, The Government Lawyer: A Survey and Analysis of Lawyers in the Executive Branch of the United States Government 8 (1952). 123 Undersecretary of War Robert Patterson insisted that a separate committee under the joint auspices of the War Department and the Board of Legal Examiners handle civilian legal appointments. Chester T. Lane served as its executive secretary and worked closely with the Board. BLE Report, supra note 122, at 59-61; Reminiscences of Chester T. Lane, supra note 39, at 572-96. 124 BLE Report, supra note 122, appendix F; David Ginsburg to Herbert Wechsler (Feb. 19, 1942), in CSC Records, supra note 13, entry 1032, box 1; Fairer Division of Jobs Among Different Law Schools Sought, Am. L. & Law., June 27, 1942, at 3, 6; Large Number Are Slated for Federal Jobs, Am. L. & Law., Sept. 19, 1942, at 2; OPA Ready to Hire Many More Lawyers Though Its Staff Already Is Largest, Am. L. & Law., Nov. 14, 1942, at 1; Henry S. Reuss, The Lawyer in the OPA, 10 Am. L. Sch. Rev. 23 (1947); Herbert Wechsler, Memorandum: Administration of the Competitive Examination (July 8, 1942), in Fahy Papers, supra note 107, box 30; Memorandum: Summary of Operations and Operational Problems (Oct. 1943-Mar. 1944) (Mar. 20, 1944), in Hays Papers, supra note 106, box 15. 125 Abel, supra note 32, at 278; see also Arthur T. Vanderbilt, Legal Education, Bar Organization and Economics, 1942 Ann. Survey Am. L. 964 (1942). The decline in total autumn enrollments between 1940 and 1942 for the more selective members of the Association of American Law Schools was only slightly better, 65% to the ABA-approved schools’ 67%. 1944 Assoc’n Am. L. Sch., Handbook 105. See generally Ashbel G. Gulliver, The Effects of the War on the Law Schools, in 1942 id. at 13-23. 126 Wechsler, supra note 119, at 6; Federal Offices Have Lost Fifth of Legal Staff, Am. L. & Law., Oct. 24, 1943, at 1. 127 Board of Legal Examiners, Minutes (Dec. 13, 1941, Mar. 14, 1942), in Fahy Papers, supra note 107, box 32 [hereinafter referred to as BLE, Minutes]. 128 Second Supplemental National Defense Appropriations Bill for 1942, House Committee on Appropriations, 76th Cong., 302, 306, 317-18 (1941); Congress Waits to Hear from Profession on Civil Service, Am. L. & Law., Oct. 18, 1941, at 1. 129 Future of Civil Service System for Legal Jobs in Government Uncertain, Am. L.& Law., Oct. 25, 1941, at 1; BLE, Minutes (Oct. 25, 1941), supra note 127. 130 BLE, Minutes (July 28, 1941, Dec. 13, 1941, Mar. 11, 1942), supra note 127; Henry Weihofen, The Civil Service Program for Government Lawyers, 3 Law. Guild Rev. 5 (1943); BLE Report, supra note 122, at 55; Ralph F. Fuchs, The Federal Civil Service for Lawyers, 11 J.B. Ass’n D.C. 59 (1944). 131 Reminiscences of Herbert Wechsler, supra note 106, at 173. 132 BLE Report, supra note 122, at 54; Wechsler, supra note 119, at 1310; Memorandum: Lawyers Who Have Served as Examiners for the Board of Legal Examiners (Jan. 14, 1943), in White Papers, supra note 77, box 6; Independent Offices Appropriation Bill for 1943, House Committee, 840. The lone female interviewer was Helen B. Arthur, a professor at the Washington College of Law. 133 Wechsler, supra note 106, at 173; Oral Examination: Re Herbert P. Miller (Nov. 7, 1941), in Fahy Papers, supra note 107, box 30; Wechsler, supra note 119, at 1309. Transcripts of the interviews of Linwood T. Jones and William J. Oxford, Jr., two lawyers in the Lands Division of the Department of Justice, survive in box 10, Edward H. Foley, Jr., Papers (on file with the Harry S. Truman Library, Independence, MO). 134 Donald S. Leecraft to Board of Legal Examiners (Oct. 30, 1941), Herbert Wechsler to A.C. Potter (Jan. 12, 1942), in Fahy Papers, supra note 107, box 30; BLE, Minutes (Feb. 14, 1942), supra note 127; Herbert Wechsler to Charles Fahy (June 5, 1942), in Fahy Papers, supra note 107, box 31; Donald S. Leecraft, Some Constitutional Aspects of the Ordinance-Making Power (1942) (unpublished LL.M. thesis, Georgetown Law School) (on file with Special Collections Department, Edward Bennett Williams Library, Georgetown University Law Center, Washington, DC). 135 David N. Morris to Franklin D. Roosevelt (Dec. 21, 1942), David Morris to William H. McReynolds (Jan. 14, 1943), in McReynolds Papers, supra note 117, box 12; Sadie Morris to Charles Fahy (Jan. 18, 1943), in Fahy Papers, supra note 107, box 31; S. Morris, Handbook of Practice and Procedure (1938). 136 William H. McReynolds to David Morris (Dec. 29, 1942, Jan. 8, 1943), Ralph F. Fuchs to William H. McReynolds (Jan. 5, 1943, Jan. 21, 1943, Apr. 14, 1943), in McReynolds Papers, supra note 117, box 12; Sadie Morris to Charles Fahy (Mar. 19, 1943), in Fahy Papers, supra note 107, box 31. 137 Charles Fahy to Sadie Morris (Apr. 26, 1943), in Fahy Papers, supra note 107, box 31. Morris returned to New York City and, as Miss Sarah A. Morris, continued to practice law well into the 1970s. Women Lawyers in the United States 438 (Dorothy Thomas, comp., 1957); 3 Martindale-Hubbell Law Directory 684 (1973). 138 Independent Offices Appropriations Bill for 1943: Hearings Before the Subcomm. of the House Comm. on Appropriations, 77th Cong. 836 (1941); Wechsler, supra note 119, at 1309; John P. Frank to Herbert Wechsler (July 25, 1942), in Fahy Papers, supra note 107, box 31. 139 Reminiscences of Herbert Wechsler, supra note 106, at 174. 140 Wechsler, supra note 119, at 1310. 141 Id. at 1310; letter from John P. Frank to Herbert Wechsler (June 18, 1942), in Fahy Papers, supra note 107, box 31. 142 Fritz Morstein Marx, The Lawyer’s Role in Public Administration, 55 Yale L. J. 508 (1946). 143 Independent Offices Appropriations Bill, supra note 138, at 822, 817, 830. 144 Id. at 834. Armstrong was Stanley Reed’s undergraduate classmate at Yale and had long been active in the ABA. He had previously taken an interest in legal education. New President, Am. L. & Law., Oct. 4, 1941, at 3; Walter P. Armstrong, A Practicing Lawyer Looks at Legal Education, 9 Am. L. Sch. Rev. 775-81 (1940); Armstrong, The Bar and the Schools, id. at 1289-96 (1941). 145 Independent Offices Appropriations Bill, supra note 138, at 834, 819, 812. 146 Id. at 823-27; Reminiscences of Herbert Wechsler, supra note 106, at 176; see David M. Bixby, The Roosevelt Court, Democratic Ideology, and Minority Rights: Another Look at United States v. Classic, 90 Yale L.J. 741-815 (1981). 147 Wechsler Offers to Quit Federal Post, N.Y. Times, Jan. 23, 1942, at 13; Reminiscences of Herbert Wechsler, supra note 106, at 176; 88 Cong. Rec. 560 (Jan. 22, 1942); H.R. Rep. No. 1643, at 5 (1943). 148 John P. Frank to Lloyd K. Garrison (Jan. 26, 1942), box 53, ser. 11/1/1, in Law School: General Correspondence (on file with the University Archives, University of Wisconsin-Madison, Madison, WI); Selection of Federal Attorneys through Civil Service Predicted, Am. L. & Law., Feb. 7, 1942, at 2; Test for Legal Jobs Probably Not to Be Held, Am. L. & Law., Feb. 7, 1942, at 2; Discrimination in Hiring Legal Staff Claimed, Am. L. & Law., Mar. 7, 1942, at 2; Harvard’s Law Graduates Said to Be Favored, Am. L. & Law., Mar. 28, 1942, at 5. 149 Charles Fahy to Marion Smith (Jan. 29, 1942), in Fahy Papers, supra note 107, box 31; Independent Office Appropriation Bill, supra note 104, at 3-4, 8. 150 Independent Office Appropriation Bill, supra note 104, at 11, 20-21, 9; Reminiscences of Chester T. Lane, supra note 39, at 598. On the youthfulness of OPA lawyers, see J. K. Lutz, Young Lawyers in Government Posts Uneasy, Am. L. & Law., Nov. 28, 1942, at 3. 151 John Morton Blum, V Was for Victory: Politics and Culture during World War II 240 (1976). 152 Independent Office Appropriation Bill, supra note 104, at 24-25. 153 Interior Department Appropriation Bill for 1942: Hearings Before the Subcomm. of the House Comm. on Appropriations, 77th Cong. 47 (1941). 154 Independent Office Appropriation Bill, supra note 104, at 22, 11-12. 155 Id. at 22. 156 Francis Biddle, In Brief Authority 63 (1962); Charles Fahy to Herbert Wechsler (Feb. 10, 1942), Charles Fahy to Kenneth McKellar (Feb. 13, 1942), Herbert Wechsler to Francis Biddle (Feb. 13, 1942), in Fahy Papers, supra note 107, box 30; BLE, Minutes (Feb. 14, 1942), supra note 127. 157 Wiley Rutledge to Thomas E. Martin (May 25, 1942), in Rutledge Papers, supra note 119, box 11; Board to Test Job Applicants Facing Battle, Am. L. & Law., June 13, 1942, at 3; 88 Cong. Rec. 4922-23 (June 4, 1942); memorandum: Gossip, John P. Frank to Herbert Wechsler (n.d.), in Fahy Papers, supra note 107, box 31. 158 85 Cong. Rec. 5441 (1942); Charles Fahy to James M. Fitzpatrick (May 21, 1942), Charles Fahy to John M. Houston (June 5, 1942), Charles Fahy to Merlin Hull (June 11, 1942), Marion Smith to Members of the Georgia Delegation in the House of Representatives (May 23, 1942), in Fahy Papers, supra note 107, box 30; Wiley Rutledge to Fred C. Gilchrest (May 27, 1942), in Rutledge Papers, supra note 119, box 11; 85 Cong. Rec. 5048 (June 9, 1942); The Federal Board of Legal Examiners, 28 ABA J. 410-11 (1942). 159 85 Cong. Rec. 5443-45, 5452 (1942). 160 Wechsler, supra note 119, at 7; LaPiana, supra note 88. 161 Wechsler, supra note 119, at 8. 162 Herbert Wechsler, Administration of the Competitive Examination (July 8, 1942), in Fahy Papers, supra note 107, box 30; BLE, Minutes (May 9, 1942), supra note 127. 163 To Create a Board of Legal Examiners, supra note 9, at 40. Other federal agencies had created or cultivated pressure groups to bolster their requests for appropriations. For example, the U.S. Department of Agriculture developed a symbiotic relationship with the American Farm Bureau Federation, and its Office of Road Inquiry engaged in backscratching with various bicyclists and early automobile enthusaists. John Mark Hansen, Gaining Access: Congress and the Farm Lobby, 1919-1981, at 80 (1991); Gregory C. Lisa, Bicyclists and Bureaucrats: The League of American Wheelmen and Public Choice Theory Applied, 98 Geo. L.J. 373-98 (1995). 164 BLE, Minutes (Jan. 17, 1942, July 11, 1942), supra note 127; James Willard Hurst, Symposium on Lawyers Under the United States Civil Service, 9 Am. L. Sch. Rev 1316 (1942); Ralph F. Fuchs to Wiley Rutledge (July 27, 1942), in Rutledge Papers, supra note 117, box 11, Florence E. Allen to Wiley Rutledge (Oct. 19, 1942), in Rutledge Papers, box 11; Ralph F. Fuchs to Board of Legal Examiners (May 14, 1943) in McReynolds Papers, supra note 117, box 2; BLE Report, supra note 122, appendix B. 165 Veteran Bonus in Legal Test Is Abolished, Am. L. & Law., Sept. 5, 1942, at 7; Herbert Wechsler, Memorandum: Veterans’ Preference and the Competitive Examination (n.d.), in CSC Records, supra note 13, entry 1032, box 1; BLE Report, supra note 122, at 47-48, appendix E. 166 To Create a Board of Legal Examiners, supra note 9, at 3; Over 13,000 Lawyers Have Filed to Take Government Job Test, Am. L. & Law., Aug. 22, 1942, at 5; Older Lawyers Are Being Hired for Government Legal Positions, Am. L. & Law., Oct. 3, 1942, at 1, 5; Henry Weihofen to Ralph F. Fuchs (Jan. 8, 1943), in CSC Records, supra note 13, entry 1032, box 1. Fingerprinting was probably chosen over photographs as a check on discrimination on racial grounds. See Warner W. Gardner, A Checklist of the Problems and Alternatives in Building a Career Service for Professional, Scientific, and Administrative Personnel (Apr. 20, 1939), in FF-LC, supra note 12, reel 106. 167 Memorandum: Comments of Warner Gardner on Written Examination (n.d.), in CSC Records, supra note 13, entry 1032, box 1; see also John P. Frank to Herbert Wechsler (July 25, 1942), in id. 168 Copies of the complete test survive in McReynolds Papers. supra note 117, box 2. Excerpts appear in Henry Weihofen, The Written Federal Attorney Examination, 11 U. Chi. L. Rev. 154-76 (1944). 169 BLE, Minutes (Feb. 14, 1942), supra note 127. 170 Fuchs, Outline of the Work, supra note 122, at 43; Ralph F. Fuchs, Memorandum: Organization and Functions of the Board of Legal Examiners (Jan. 1, 1943), in McReynolds Papers, supra note 117, box 2. 171 Memorandum: Competitive Examination and Register (n.d), in Fahy Papers, supra note 107, box 30. Because most Southern states had large African American populations but at most a handful of black lawyers, their appearance in the subquota contingent was all but preordained. In general, the South had a lower ratio of lawyers to population than any other region. Charles H. Houston, The Need for Negro Lawyers, 4 J. Negro Educ. 49-52 (1935); Halliday, supra note 9, at 77. 172 BLE, Minutes (Nov. 15, 1942), supra note 127. 173 Ralph F. Fuchs, Memorandum: Organization and Functions of the Board of Legal Examiners (Jan. 1, 1943), in McReynolds Papers, supra note 117, box 2; BLE Report, supra note 122, at 40-41, appendix E. 174 Ralph F. Fuchs to Board of Legal Examiners (May 14, 1943), in McReynolds Papers, supra note 117, box 2; Dwight Campbell, A State Board Members’ Impression of the Federal Legal Examining Work (n.d.), in Fahy Papers, supra note 107, box 32. 175 BLE Report, supra note 122, appendix D; 84 Cong. Rec. 5445 (1942). 176 Memorandum: Law Schools Represented on Register through Fifth Supplement (June 21, 1943), in Fahy Papers, supra note 107, box 30. 177 The only edition of the register I have found is First Revision of Current Attorney Register List for Grades P-1, P-2, P-3 and CAF-4 (Law Clerk Trainee) (Sept. 1, 1943), in Fahy Papers, supra note 107, box 30. This edition omits lawyers who were hired or otherwise became unavailable since February 1943 and includes only 1485 eligibles. For women lawyers in the 1940 census, see Halliday, supra note 9, at 62. 178 The ABA Section on Legal Education and Admissions to the Bar listed five “colored” law schools in its Law Schools and Bar Admission Requirements in the United States 3-10 (1939). Other African American eligibles might have attended integrated law schools, taken correspondence courses, or clerked in law offices. 179 Information Concerning the Attorney Register for Grades CAF-4 and P-1 to P-3 (May 1, 1943) in McReynolds Papers, supra note 117, box 2; Herbert Wechsler to Wiley Rutledge, Oct. 21, 1941, in Rutledge Papers, supra note 119, box 11. 180 BLE Report, supra note 122, at 56-57. 181 F. J. Bailey to Francis Biddle (Dec. 21, 1942), in Fahy Papers, supra note 107, box 31. 182 Fuchs, Post War Problems, supra note 122, at 319. 183 That said, Fuchs’s support of civil rights, civil liberties, Spanish Loyalists, and various Popular Front organizations earned him loyalty investigations in 1942 and 1952. R. E. Greenfield, report, Mr. Ralph F. Fuchs (July 13, 1942), Charles R Gambs, Jr., report (Apr. 18, 1952), in Records of the Office of Personnel Management, record group 478, inventory A1, entry 2, box 655 (on file with the National Archives, College Park, MD). 184 Blum, supra note 151, at 221-34; Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War 46-48 (1995). 185 Blum, supra note 151, at 234-40; Daniel R. Ernst, The Ideal and the Actual in the State: Willard Hurst and the Board of Economic Warfare, in Total War and the Law: The American Home Front in World War II 149-83 (Daniel R. Ernst & Victor Jew eds., 2002). 186 Two Senators Answer Attack on Ginsburg, N.Y. Times, Mar. 13, 1943, at 11; Kalman, supra note 53, at 102-105. 187 Independent Offices Appropriation Bill for 1944: Hearings before the Subcomm. of the House Comm. on Appropriations, 78th Cong. 927-28, 905 (1943); H.R. Rep. No. 109, at 6 (1943). 188 To Create a Board of Legal Examiners, supra note 105, at 7, 9, 6-7; Justice Arthur G. Klein Is Dead, N.Y. Times, Feb. 22, 1968, 31. For Ramspeck’s view of the Board, see J. K. Lutz, Lawyer-Hiring in Government to Be Probed, Am. L. & Law., Jan. 5, 1943, at 1. 189 Board of Examiners’ Status Is Fortified, Am. L. & Law., Feb. 23, 1943, at 2; 89 Cong. Rec. 1985, A1574, 2905 (1943). 190 Millard W. Rice to Board of Legal Examiners (Mar. 25, 1943), Ralph F. Fuchs to Millard W. Rice, Apr. 1, 1943, in To Create a Board of Legal Examiners, supra note 9, at 91, 110-11, 113-14. 191 To Create a Board of Legal Examiners, supra note 9, at 96-98; F. M. Sullivan to Edith Nourse Rogers (Mar. 16, 1943), in CSC Records, supra note 13, entry 1032, box 1; Robert Ramspeck to Charles Fahy (Apr. 17, 1943), Charles Fahy, memorandum (Apr. 19, 1943), in Fahy Papers, supra note 107, box 31; 89 Cong. Rec. 3564-65 (1943). 192 Ralph F. Fuchs to Chester T. Lane (Nov. 13, 1943), in CSC Records, supra note 13, entry 1032, box 2. 193 BLE, Minutes (June 19, 1943), supra note 127; J. K. Lutz, Lawyers in the Government, Am. L. & Law., June 1, 1943, at 2, June 22, 1943, at 2; To Create a Board of Legal Examiners, supra note 9, at 45. 194 To Create a Board of Legal Examiners, supra note 9, at 10, 11, 14. 195 Id. at 7, 83-84, 8, 91; William Langer, Minority Views on H R 1025 (June 17, 1943), in William Langer Papers, box 126 (on file with the Chester Fritz Library, University of North Dakota, Grand Forks, ND) [hereinafter referred to as Langer Papers]. 196 To Create a Board of Legal Examiners, supra note 9, at 96-101; Veterans’ Preference Act of 1944, Public Law 359, 78th Cong., 2d sess., 1944; William Langer, untitled speech on H.R. 1025 (n.d.), in Langer Papers, supra note 195, box 126. 197 Memorandum: Ramspeck Cases (Sept. 1943) in CSC Records, supra note 13, entry 1032, box 1; Fuchs, Post War Problems, supra note 122, at 321. 198 To Create a Board of Legal Examiners, supra note 9, at 69-70, 101-03; 1945 Assoc’n Am. L. Sch., Handbook 45. 199 To Create a Board of Legal Examiners, supra note 9, at 10-11, 69, 109, 108; Langer, Minority Views, supra note 195. 200 Ralph F. Fuchs to Charles Fahy (July 2, 1943), in Fahy Papers, supra note 107, box 30; Charles Fahy to Abe Fortas (July 3, 1943), in Fortas Papers, supra note 101, ser. 5, box 163; Charles Fahy to William H. McReynolds (Mar. 24, 1944), in McReynold Papers, supra note 117, box 2. 201 Exec. Order No. 9358, 8 Fed. Reg. 9175 (July 1, 1943); Committee on Legal Personnel, Minutes (Sept. 25, 1943), in Fahy Papers, supra note 107, box 32. 202 Ralph F. Fuchs to Committee on Legal Personnel (July 14, 1943), in Fahy Papers, supra note 107, box 30; Memorandum: Summary of Operations and Operational Problems, October 1943-March 1944 (Mar. 20, 1944), Ralph F. Fuchs to Charles Fahy (Nov. 18, 1943), in id., box 32; Ralph F. Fuchs to Charles Fahy (Feb. 5, 1944), in id., box 31. 203 Maurice T. Van Hecke to Charles Fahy (Feb. 28, 1944), in Fahy Papers, supra note 107, box 31; Charles Fahy to William H. McReynolds (Mar. 24, 1944), in McReynolds Papers, supra note 117, box 2. 204 Reminiscences of Chester T. Lane, supra note 39, at 598-603; Civil Service Commission, Minutes (July 22, 1944), in CSC Records, supra note 13, entry 19, box 47; Ralph F. Fuchs, The Present Status of the Attorney in Civil Service, 6 Fed. B.J. 155-59 (1945); Exec. Order No. 9830, 12 Fed. Reg. 1259 (Feb. 24, 1947). 205 Jason Scott Smith, Building New Deal Liberalism: The Political Economy of Public Works, 1933-1956, at 160-89 (2006). 206 Transcript of hearing at 13-16 (Nov. 1, 1939), in FF-LC, supra note 12, reel 111. 207 Id. at 14. 208 Suzanne Mettler, Soldiers to Citizens: The G.I. Bill and the Making of the Greatest Generation (2005). 209 Wade Goodwyn, Political Controversies Divide GOP Voters In Texas and the FBI, Morning Edition, National Public Radio, June 29, 2017, http://www.npr.org/2017/06/29/534835094/political-controversies-drive-a-wedge-between-texas-gop-and-the-fbi (last visited Nov. 5, 2017); Julie Hirschfield Davis, Rumblings of a “Deep State” Undermining Trump? It Was Once a Foreign Concept, N.Y. Times, Mar. 6, 2017, https://www.nytimes.com/2017/03/06/us/politics/deep-state-trump.html?_r=0 (last visited Nov. 5, 2017). 210 Richard V. Reeves, Dream Hoarders: How the American Upper Middle Class Is Leaving Everyone Else in the Dust, Why This Is a Problem, and What to Do about It (2017). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Legal History Oxford University Press

“In a Democracy We Should Distribute the Lawyers”: The Campaign for a Federal Legal Service, 1933--1945

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Abstract

ABSTRACT To build its many unprecedented bureaucracies, the American New Deal heavily relied upon recent graduates of elite law schools, in a break with prior practice and to the increasing annoyance of congressmen and senators. To head off an attempt to entrust the selection of government lawyers to the Civil Service Commission, in January 1939, President Franklin D. Roosevelt appointed a committee, chaired by Stanley Reed and including two other Supreme Court Justices, Felix Frankfurter and Frank Murphy, to study the question. In April 1941, he accepted the recommendation of the lawyers on the “Reed Committee” and created the Board of Legal Examiners, headed by Solicitor General Francis Biddle (soon replaced by Charles Fahy) and managed during its first, crucial year by Herbert Wechsler, who was on leave from the Columbia Law School. As conceived especially by Frankfurter, the Board’s mission was to create an American counterpart to the British Civil Service, in which lawyers advanced to increasingly important posts throughout the executive branch. Although wartime conditions hampered the Board, it administered a national exam that provided greater access to government jobs than had the New Deal’s version of an “old boys network,” which drew heavily upon the law faculties of Harvard, Columbia, and Yale. Congressional hostility persisted, however, and was joined by the opposition of a powerful veterans’ lobby. The Board’s response to this pressure is instructive for a time when government lawyers and other professionals are being denounced as members of an anti-democratic, Deep State. No one was a closer ally to Felix Frankfurter and Thomas Corcoran than James H. Rowe, Jr. Yet, on a January day in 1939, he balked. “This is none of my business and I may be getting my ‘neck out,’” the presidential assistant protested, “but the hell with it. I need the job but this is more important than any job.” It was, in fact, “the most important thing to the New Deal” Rowe had encountered since coming to Washington in 1934 as legal secretary to the retired Justice Oliver Wendell Holmes. Earlier that day, Corcoran had appeared at the White House with a plan to create a civil service system for the New Deal’s lawyers. He and Frankfurter had come up with the proposal, in which the Solicitor General of the United States would oversee the hiring, promotion and transfer of government lawyers, to parry a bid by the Civil Service Commission to bring them within its domain, an alarming prospect for the duo, who believed it would halt the migration of able young lawyers to Washington. Even Frankfurter’s plan, Rowe feared, would destroy the informal system of recruiting lawyers that had flourished during Franklin D. Roosevelt’s presidency. “As you know and very few others do,” he lectured Corcoran, “the ‘shock troops’ of the New Deal—the men who really get the tremendous volume of work done that must be done—are the young lawyers, a number of whom you brought into the government.” As it was, general counsels struggled to land top law graduates. Corporate law firms offered “real money” and “eventual security and respectability.” The general counsels offered the chance to serve the country—“young men are impressed with that”—and to improve the lives of “100 million people,” but only if one’s agency got a decent budget. Even then, a lawyer’s “head may be chopped off tomorrow” in some partisan melee. Presently, the decision to take a government job was a coin toss, Rowe claimed. If an exam were interposed between top graduates and the New Deal, Wall Street would win every time.1 Rowe spoke up at a crucial moment in the history of the legal profession and the American state. Then in its sixth year, the New Deal had brought extensive, intrusive, centrally directed public bureaucracies to the peacetime United States and empowered unelected officials operating beyond the effective control of Congress and the President. In this, as the historian Kirin Patel observes, the New Deal was “but one of many national variations stressing selective state intervention, business-led cartelization, and a new role for labor and consumption in industrial relations.”2 Yet it remained distinctive in important respects. First, as the historian Jerold Auerbach observed, it relied heavily on lawyers recruited from a legal profession centered in civil society rather than the state.3 Second, the political parties the New Dealers challenged were coalitions of geographically dispersed, localistic units, bound together largely by patronage, rather than groups organized at the national level around policies.4 Professional politicians particularly prized law jobs and resented the New Dealers’ attempt to create a “federal legal service” that brought meritocractic, “bureau-led” hiring to the legal staffs of the federal government.5 Resentment boiled over into resistance in the latter half of FDR’s second term as the politicans came to see meritocractic hiring as part of a larger scheme to shift power from Congress to the President and his “janizaries.”6 Although the campaign for a federal legal service transpired during a distinctive moment in American political history, it has implications for a general and persistent problem for governance in the United States. Lawyers, like other professionals, claim expertise that can be fully assessed only by members of their own community of the competent. But because the technical authority lawyers assert is often hard to distinguish from their normative beliefs, and because their pronouncements often determine matters of great public moment, other political actors are likely to contest attempts to put the selection of lawyers “above politics” and “on the basis of merit alone.”7 The practical effect of doing so, they charge, would be to cede public power to an exclusive profession or, worse, an ideologically defined subset thereof. While a scheme to recruit “shock troops” for the New Deal would never do, would a system that brought lawyers as diverse as the political nation pass muster? The answer may help those who in other periods seek to defend the authority of government lawyers from critics who would deploy populist antitstatism against them for personal and partisan ends. I. Before the New Deal lawyers “The duties of all public officers are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance.”8 Andrew Jackson’s rationale for the rotation of offices still guided the selection of government lawyers a century later. Few of the 3,358 “positions of a legal nature” in the federal government in 1932 were thought to require expertise or ability beyond the ken of the average lawyer. As the Civil Service Commission put it, they tried cases, conducted hearings, drafted legal opinions, examined the legality of transactions, and performed all the other duties that “ordinarily fall to the lot of a practitioner.”9 Few were graduates of elite law schools. Clerks promoted from nonlegal to legal positions filled many lower posts. Patronage appointees occupied top positions as long as the power of their political sponsors lasted. The constant turnover in the top jobs made the law, in the judgment of Leonard D. White, a pioneer in the field of public administration, “the most backward of all the professions in the employ of the Federal Government.”10 About one quarter of the federal law jobs, the bulk of them in the Veterans Administration and Interstate Commerce Commission (ICC) were filled through the Civil Service Commission’s elaborate examination and certification procedures.11 When an agency wanted to hire a lawyer, it notified the Civil Service Commission, which then sent an announcement of an examination to law schools, bar associations, state and municipal governments, newspapers, and post offices. Applicants were to describe their educational background and professional career, give references, and sit for a written examination prepared and graded by the Commission’s small staff of legal examiners. The applicants were quizzed on basic common-law subjects rather than an agency’s organic statute or administrative law in general. All who received a passing grade—70 out of 100—were placed, in rank order, on a “closed” register, which officials of the requesting agency were not permitted to consult. Under “the rule of three,” the Commission sent over the names and files of the three highest-ranked eligibles on the register. The officials might try to persuade the Commission that none of the three would do, but if they did, they could choose only from among the next three highest eligibles on register.12 Departures from this basic procedure were made to accommodate two facts of political life. First, since the last days of the Coolidge administration, veterans received a two-part preference. They, and in some cases their spouses, received extra points on their written examinations. Able-bodied veterans received an extra five points and disabled veterans received ten points. Widows of veterans and the wives of disabled veterans also received ten points. An able-bodied veteran, therefore, needed only a score of 65 to pass a written examination, while a disabled veteran or a widow needed only 60. In addition, any holder of a ten-point preference with a passing score jumped to the top of the list. Thus, a ten-point preference holder with a score as low as 60 was not only eligible for appointment, but the Commission would certify him or her before all competitors lacking the preference, no matter how high the others’ scores.13 Judging from registers compiled during the New Deal, holders of the preference enjoyed an insurmountable advantage over other applicants. The first thirty-three positions on a register for junior attorneys prepared for the Federal Communications Commission (FCC) in 1935 went to disabled veterans, of whom ten would not have received a passing score but for the ten-point preference. Other veterans took the next three places. The candidate with the highest score on the exam (99.75) was ranked thirty-seventh on the register. Holders of the ten-point disability preference claimed the first three spots for a senior attorney job, the first fourteen spots for an attorney position, and the first sixty eight for an assistant attorney post. The first twelve slots on a register prepared for an attorney position at the ICC in 1938 went to holders of the ten-point preference, and fifty four other eligibles received a five-point preference. To one skeptical observer the register looked like “the roll of an American Legion convention.”14 A second political constraint was geographic. The first civil service law directed that federal jobs be apportioned “among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census.” Starting in 1931, this directive was implemented in the following way. Eligibles from any state or the District of Columbia with more than its share of appointments went to the foot of a register, with the exception of holders of the veterans’ preference, who stayed where they were. Not until all of the eligibles from the underrepresented states were certified would the Commission proceed to the eligibles from one of the overrepresented states. Maryland, Virginia, and the District of Columbia invariably were overrepresented. They might be joined by as many as fifteen other states, depending upon the constantly changing balance of hires and separations throughout the entire civil service. In most years, a Californian with a score of 70 would be certified before a Virginian with a perfect score.15 Not surprisingly, the top lawyers of agencies subject to the Civil Service Commission attempted to avoid its procedures whenever possible. A common resort was a loophole involving transfers of government workers from clerical to legal positions. Because the clerks had been examined when they first joined the federal workforce, they did not have to repeat the process if they were promoted into a legal post. The Civil Service Commission simply verified that they had acquired a law degree, usually from one of the many night (or “sundown”) law schools in the District of Columbia.16 Of the federal legal positions not “covered into” the civil service, some (including those in the Federal Trade Commission, the Bureau of Prohibition in the Department of Justice, and the Reconstruction Finance Corporation) were set apart by statute. Other posts were immune because their occupants were subject to senatorial confirmation. The remaining positions, accounting for about sixty percent of all lawyers in the federal government in 1932, were in agencies listed on Schedule A of the Civil Service Commission’s published rules. Their status was tenuous, for an executive order could subject them to civil service rules at any time. Such was the status of all law jobs in the federal departments (save for a few bureaus in Treasury and Justice), the Board of Tax Appeals, the Federal Power Commission, and the Federal Radio Commission.17 Even at “Schedule A” agencies, chief legal officers promoted clerks into entry-level legal positions because they already understood the routines and missions of their bureaucracies. In 1903, a local law professor observed that his students moved into legal positions after having made themselves “necessary to the political chiefs of their respective departments” as clerks.18 In 1906, a decade before the ICC put its lawyers within the civil service, at least four of its five legal positions were held by former clerks. The clerical route was open to women as well. After graduating from George Washington University’s law school in the 1920s, Louise Foster was promoted from a clerical job to a junior attorneyship in the Department of Justice. Ultimately she won a full attorney post. By the 1930s it seemed to one newspaperman as if “almost every other clerk, stenographer and typist, man or woman, in the government service” was enrolled in a law school.19 The other great source of applicants was a strategically situated Member of Congress or other party chieftain. Because “lawyers as a class are politically active and politically valuable,” a civil service examiner explained, “political expediency dictates that legal positions be kept as plums… . By proper rotation and manipulation a comparatively small number of plums flavors a large number of puddings.”20 The post of general counsel in a bureau or commission or solicitor in an executive department was the most desirable, but even a low-salaried assistant or associate attorneyship might satisfy a constituent. The competition could be particularly fierce at the start of a presidential term, when congressmen advanced the claims of state parties that had turned out voters for the prevailing candidate. Consider the case of Harold Stephens, a mid-career lawyer who in March 1933 was completing two years of graduate study at the Harvard Law School. While traveling from Cambridge to Durham, North Carolina, to interview for a teaching job, Stephens stopped over in Washington just as the death of Roosevelt’s original choice for Attorney General set off a scramble for jobs at the Department of Justice. His starting point, as he handicapped his chances with the new nominee, the party wheelhorse Homer Cummings, was that “geography always plays an important part in a political choice.” Utah had gone Democratic in 1932 for the first time since 1916, and this augured well for his chances. Then again, two Utahns already held plum jobs in the new administration; had the Beehive State already received its due? In the end, Cummings hired Stephens as Assistant Attorney General for the Antitrust Division, in which capacity he often quarreled with young New Deal lawyers.21 However they got onto a legal staff, government lawyers tended to fall into two groups. The first saw government service as a stepping stone to something better. Stephens, for example, started angling for a federal judgeship almost as soon as he joined the Department of Justice. More common were departures for private practice and the chance to cash in on experience and contacts gained in government. Probably the largest contingent of these “door revolvers” at the start of the New Deal consisted of the alumni of the Bureau of Internal Revenue (BIR). In 1917, the Boston lawyer Arthur Ballantine left a corporate practice to serve in the bureau, first as a special attorney and then as its solicitor. By 1919, he had founded the New York City firm that bore his name for the rest of the century. Less eminent lawyers pursued the same strategy. In 1919, one told Commissioner of Internal Revenue Daniel Roper that his interest in a job was strictly “mercenary,” that he was out “to develop a practice in taxes.” Roper replied, “That is what we are all doing.” Throughout the twenties, scores of BIR lawyers, from lowly assistant attorneys to distinguished general counsels, followed suit.22 Still, some made a career of government lawyering. Typically, they were the object of condescension by private practitioners. Charles F. Diggs, the scion of an old Washington family, scoffed at the thought that he might remain at the Pension Bureau after he received his law degree from Georgetown in 1902. “If, sir, I had not within me ambition’s spark,” he informed his superior, “I might be content to accept the four walls of this Bureau as the arena in which to win such victories as are permitted here, but the field is far too small to encompass my hopes.” Diggs resolved to “leave the subtle influence and ease of governmental life and pitch my camp on the broad field which lies beyond the confines of this narrow structure.”23 Even practitioners who appreciated the virtues of the “lifers” tended to damn them with faint praise. When Robert H. Jackson left his practice in Jamestown, New York, to become general counsel of the BIR in 1934, he assumed that “a man who took a government job was probably not a first rate lawyer.” The BIR’s lawyers surprised him, to a point. “They didn’t have, perhaps, the type of ability that would attract clients,” he explained, “but they were competent and efficient and tried to be fair.” Jackson’s predecessor, E. Barrett Prettyman, was of similar mind. Forced to fire forty lawyers at the start of FDR’s presidency, Prettyman insisted on keeping many of the “dumb” but methodical ones. “There is much work in a great outfit like the federal tax system which must be done by slow men, content to do the same thing every day, lacking in ‘ambition’ and glamour, but who are accurate, careful, reliable,” he maintained. “So-called ‘smart’ people go crazy at such jobs.”24 What hiring officers rarely looked for were the indicia of merit that large corporate law firms were already using to select their associates, grades at Harvard, Columbia, Yale, and other “case method” law schools. At the turn of the century, Paul D. Cravath, for example, ordained that the associates in his Wall Street law firm should “be recruited, so far as possible, from men just out of the law schools.” According to the firm’s historian (his partner, Robert Swaine), Cravath “believed that a man who had not attained at least the equivalent of a Harvard Law School ‘B’ either had a mind not adapted to the law or lacked purpose and ambition; in either case, the man was not for the Cravath office.” And because Cravath was convinced “that the office and its clients would get the best service from men confident of unimpeded opportunity for advancement,” he established a policy of “filling advanced positions from the ranks of the young men who enter the office as beginners.”25 Only a handful of the federal government’s top lawyers had followed Cravath’s lead since the turn of the century. Invariably, they were themselves members of New York City’s corporate bar coaxed into public service by socially elite members of the Republican Party. Henry Stimson set the mark when serving as U.S. Attorney for the Southern District of New York under Theodore Roosevelt. Stimson rescued Felix Frankfurter from the drudgery of Hornblower, Byrne, Miller & Potter and Emory Buckner from the Cravath firm.26 George Wickersham experimented with a merit system as William Howard Taft’s attorney general. He invited applications for two jobs in the Justice Department from “the younger graduates of the leading law schools” and appointed an ad hoc committee of Justice Department lawyers and civil service examiners to sift through the sixty-five lawyers who responded. The committee administered no formal written examination. Instead it “investigated the records of the applicants, corresponded with the persons to whom they had referred, studied samples of legal briefs and law memoranda previously written by them, and held personal conferences with such as were to be found most promising.”27 Wickersham was so satisfied with the resulting appointees—recent graduates “of high standing” from Columbia and Harvard—that he recommended the practice be made permanent. His successors, however, reverted to the earlier practice of appointing the politically connected. Harlan Fiske Stone’s hiring of two recent members of the Columbia Law Review to reorganize the Justice Department’s War Transactions Section was an exception, as was Emory Buckner’s recruitment of elite law graduates while serving as U.S. Attorney for Southern District of New York.28 Within the legal academy, the figure most intent on seeing that young, Wall-Street-grade legal talent find its way into the federal government was Harvard’s Felix Frankfurter. Frankfurter had some success in placing graduates during the early years of the Federal Trade Commission and still more during World War I, when his talented protégé Benjamin V. Cohen took a job at the U.S. Shipping Board. During the Republican twenties, however, his influence in Washington waned. He supplied Buckner with recent graduates and George Wickersham with young lawyers for the research st