Judged By History : What makes a great judge--his reasoning or his vision? : LEARNED HAND: The Man and the Judge, <i> By Gerald Gunther (Alfred A. Knopf: $35; 818 pp.)</i>

Judge Learned Hand’s portrait has fixed itself in our memory: the lined face, the striking eyes. He leans forward, his hand thrust into the pages of an immense volume of law, and he looks up from under his bristling brows, patiently listening, disbelieving. The famous photograph was taken in 1952; the following year, Gerald Gunther became his law clerk and began to plan this biography, which he has been working at with varying degrees of intensity for 40 years.

Of that epochal year of service with Judge Hand he gives an intimate and moving account. It was the bitter McCarthy time, and Judge Hand was laboring at a solitary dissent on behalf of a man convicted of disloyalty. The grounds for the dissent were tenuous, and the judge went through 13 drafts in agony to find forceful expression for his sympathy. He asked his young clerk to listen to each draft, paragraph by paragraph, as he wrote. Gunther was “startled to find this experienced jurist, a near mythic figure, a household word to every law graduate, the master judge of his generation, asking for help and insisting on candid criticism. . . .” Hand held him close in this Socratic fashion, and for Gunther “everything that followed was anticlimactic.”

Forty years later we have this remarkable book, unlike any biography I know. It is a law professor’s lecture expanded to the size of a Victorian life-and-letters, a huge construction of shadowy rooms and long corridors illuminated by occasional flashes of lightening. Its graceful and modest subject is sometimes in danger of being lost.

One is startled by the reminder that the well-remembered Hand was born in 1872. He grew up in surroundings that might have been expected to produce a more complacent and less reflective character: His comfortably well-off family lived in Albany, a little way from the widow of the elder William James. Albany was then still a half-rural, half-Dutch provincial capital. Hand followed the conventional path of college, law school and a respectable Albany firm. But he was something of an outsider, an intellectual suspected of being a “sissy.” He was restless and dissatisfied, without clear ambitions.

His marriage to Frances Fincke changed his life. For them both, marriage seems to have meant escape from their insular circumstances. They went to New York City together, and there they lived affectionate but largely separate lives.

Hand’s principal interests and pleasures lay within the then entirely male world of the courts, where he served a very long apprenticeship. After five unhappy years in private practice, he succeeded in being appointed a federal trial court judge in Manhattan in 1909. Hand seems not to have cared for the bulk of the work, which consisted of bankruptcy and admiralty law. The disputes over damage done by collisions between barges in New York Harbor, and squabbles among creditors over the assets of a bankrupt, were heard in shabby, poorly lighted rooms. Hand served for 13 years in these uncongenial surroundings, and he formed a permanently unfavorable view of trial court judges and all their works.

He remained so long in these lower depths largely because of his passionate attachment to Theodore Roosevelt’s cause. It was Roosevelt who wooed him from the staid, conservative Democratic Party of Albany, and who with conscious charm in later years seemed to keep him in thrall. Hand campaigned for Progressive candidates, and while a sitting federal judge allowed himself to be named as a Progressive candidate for election to a state judgeship. This closed the door of promotion for many years, until Chief Justice William Howard Taft reached down and lifted him to the federal court of appeals in New York in 1924. There, at 52 years of age, he began his true career.

Hand’s attachment to Roosevelt was characteristic. He had fierce loyalties, and a weakness for men of action. Justice Oliver Wendell Holmes, the dashing veteran of the Civil War, was his idol. He had a talent for friendships, and his close and troubled relation with Felix Frankfurter ran through his later years. Gunther portrays the complex character of Frankfurter, and the highly charged friendship between the two men, with great tact and clarity.

On the court of appeals, Hand was free to devote himself principally to what interested him most, the writing of opinions. It was a highly collegial court, and most cases were decided by a panel of three judges. Judges, like other people, most often decide a question first and then try to express their reasons afterward. Hand was not a talented decision-maker; but he was a brilliant analyst. The portion of the work in which he excelled was the preparation of detailed and carefully reasoned memoranda for the other judges, analyzing each case, which then would often become the basis of the joint opinion, explaining their decision.

Gunther does not mention and perhaps fails to see that Hand refused to hire women long after the law schools had let down their bars. Supreme Court Justice Ruth Bader Ginsburg recently recalled that when she graduated from law school with distinguished honors, Hand said he could not hire her because his language was too “salty” for a woman. There is a certain justice, I suppose, in having her appointed to the seat on the Supreme Court for which he yearned.

Hand evidently enjoyed his work. He was an intellectual, as one sees. One of the disappointments of his life was that he had no great originality of mind; he went into the law after being disappointed in his hopes of pursuing philosophy, George Santayana having discouraged his youthful efforts. He formed a thoughtful view of his work, however, in which he combined elements of William James’ pragmatism and Holmes’ jurisprudence into a very modern, personal doctrine of utter tolerance. His ironic, self-doubting tone was the voice of the intellectual of the post-war era.

He became very well known as a voice of moderation during President Truman’s and Senator Joseph McCarthy’s purges of the disloyal. It is true that he affirmed, in the United States v. Dennis case, the criminal convictions of officers of the American Communist Party, for advocating the overthrow of the United States government. His thoughtful opinion in that case argued that freedom of speech does not protect those who advocate violence. The Supreme Court upheld him, but the academic world has always had a great deal of difficulty in coming to terms with Dennis, and Hand himself continued to agonize over loyalty cases. Within the limits of his position as a judge he spoke publicly, which took some courage, against the illegal McCarthyite excesses of the time.

He cherished a lifelong ambition to sit on the Supreme Court: “I longed as the thing beyond all else that I craved to get a place on it,” he said when the chance to do so finally passed out of his reach. Justice Felix Frankfurter, his mentor for 30 years, had undertaken a desperate effort in 1942 to have him appointed. Frankfurter was losing ground on the Court and he wanted Hand, his friend and ally, to join him before Roosevelt passed from the scene. But there was no chance of this--Hand was already past 70, and Frankfurter himself was occupying the only seat to which there was a chance of Hand’s being appointed. When Frankfurter’s effort failed, Hand was freed of his yearning. His old age was marked by a new freedom and grace in his work, and an affectionate reunion with Frances.

His name had become well known, but his work was always highly specialized, and even among lawyers was known principally to experts alone. This poses a dilemma for Gunther, who has written his biography for a general audience. Some of Hand’s opinions on intellectual property law are classics, but their elegant quality is difficult to convey outside the context of the law. How to present the appellate court opinions that were Hand’s principal accomplishment? Gunther characteristically attacks the problem frontally; he gives in non-technical language detailed descriptions of dozens of Hand’s memoranda and opinions. This method is not entirely satisfactory. The tone here is relentless praise, evidently because Gunther can’t really show us how good Hand was, and so constantly has to tell us. The whole question of what qualities make for success in a judge needs more thoughtful consideration.

There is yet a third book in this vast volume, in some ways the most interesting of the three. It is Gunther’s extended and dramatic presentation of constitutional law and history from a position he attributed to Hand.

Gunther makes the fact that Hand never served on the Supreme Court the theme of his life. The biographer yearns to have had the great cases decided by Hand himself, for he thinks Hand would have done a better job than his idol, Holmes. And that may be; in many ways Hand’s pragmatist thinking was more modern than Holmes’. But it is an odd theme for a biography.

The point seems to be to make Hand the spokesman for one side in a continuing debate. On the one hand are those who say that the Bill of Rights sets the only limits on the power of our national and state governments; and on the other, those who say the Civil War produced new and broader guarantees of equality and due process of law, which we found in the 14th Amendment to the Constitution.

Gunther makes the case for relying on the narrowly written provisions of the Bill of Rights. He likes to call his position “judicial restraint,” although that begs the question. If the Civil War changed the nature of American government, and the 14th Amendment embodied that change, Gunther’s heroes are not models of restraint, but judicial activists rewriting the Constitution. Gunther makes Hand the exemplar of this “judicial restraint.”

Although Professor Gunther insistently calls Hand a liberal, using this as a term of praise, his views were closest to those now expressed by Justice Antonin Scalia. The battle lines have not shifted, but the armies have a way of exchanging uniforms.

Perhaps there is too much of Gunther and not enough of Hand in this portion of the book. He lectures, entertainingly but dogmatically. He is entitled to his opinions, but one occasionally yearns to raise a hand and ask the teacher for a more balanced discussion. Hand as a constitutional scholar had the defects of his virtues, after all. His pragmatism and his tolerance left him without a hard core of moral principle, other than the principle of tolerance itself. Like Holmes, but for different reasons, he saw no limits on what the legislature might do, so long as it acted in proper form. This view of the Constitution would have left us with segregated schools, and with women criminally prosecuted for choosing abortions, points that Gunther omits to make. I don’t think it does Hand a service to make these views, perhaps in some degree the fruit of disappointment, the theme of his life. They are his response to a specific historical setting (as perhaps Justice Scalia’s are), and fall on the bank outside the broad current of constitutional law, as we find it in the decisions of the Supreme Court.

For all its fascination, I must admit that the first 400 pages or so of this book are difficult going. Gunther is unwilling to let any detail go by without rendering a judgment upon it. The second half of the book, which deals with people and events that Gunther knew firsthand, is far better, and the cumulative effect of the last chapters is very powerful, although even here, Gunther rides his hobbies too hard.

But these are understandable defects in a vast and passionate work, written by someone uniquely qualified for it. It is certain to be the definitive biography of Learned Hand, and when Gunther manages to forget the King Charles’ Head he has made of the Masses case, and forgets for a moment to compare Hand with Holmes, he can write simply well, without excessive authorial intrusions. It would be unfair in any case to judge this biography by ordinary standards for books. It is a historical phenomenon in its own right, and the reader’s patience, although often called upon, is richly rewarded.