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05/25/94

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Biographer Gunther details the making of an open-minded judge

STANFORD -- Working under the portrait of his former mentor, Gerald Gunther often felt the urge to reach through the picture frame and grab the man with the bushy eyebrows, square jaw and sad eyes.

"I wanted to shake him by the shoulder and say, 'Judge, live a little. Enjoy some of the applause. You did earn some of it, but you never could accept that, because of your nagging, deep-seated self-doubts.'"

Gunther, the William Nelson Cromwell Professor of Law at Stanford University, is trying to heed his own advice now as applause comes to him for his latest book, "Learned Hand: The Man and the Judge."

The biography upon which Gunther labored off and on for two decades is garnering interest beyond legal circles, perhaps because it is the first judicial biography to focus on the human being beneath the robes. Gunther approaches Hand's life as if Hand were a novelist and his approximately 4,000 legal opinions over 52 years on the federal bench were reflections of their author's life and personality.

This approach was not one Gunther imagined when he first reluctantly agreed to tackle the biography in the late 1960s. Herb Packer, Gunther's friend and colleague at Stanford Law School, had suffered a stroke then and was unable to travel. By committing to eventually write a biography of Hand, Gunther was able to get the judge's papers shipped to Stanford where Packer could use them for a historical research project. Packer died before the project was completed, but he helped Gunther get an initial grasp on his subject.

"I had doubts about whether I was the right person to do this biography," Gunther said recently during a break from grading exams. "Having worked for Hand as his law clerk and having gotten to know a number of judges, he was the one I really admired. I thought hagiographic stuff is the last thing this country needs."

Gunther, now a highly regarded Supreme Court watcher and constitutional scholar, first came to know the judge with the famous name in 1953, when Gunther was 26 and was selected as Hand's law clerk on the U.S. Court of Appeals for the Second Circuit in New York.

Unlike most judges today, Gunther said, Hand did not use his clerks to draft his opinions but solely to critique them. Once, when Gunther found fault with the judge's 13th draft, however, it was too much for Hand, who tossed a paperweight in Gunther's direction. "Son, I get paid to decide cases," Gunther remembers the judge telling him. "At some point, I have to get off the fence and turn out an opinion."

Hand, the judge who has been called "the greatest judge never to sit on the Supreme Court," was known to most acquaintances as a very congenial dinner companion, an "urbane, literate, quite self-assured and serene individual," Gunther said. "When I was teaching at Columbia, I frequently visited him because he enjoyed talking and I enjoyed listening."

Born in the 1870s into a family of lawyers in Albany, N.Y., Hand grew up at the end of the Victorian era, which meant he learned to write letters in his youth. Because he never liked the telephone, Gunther said, Hand's papers totaled about 100,000 documents upon his death in 1961. There were boxes and boxes of personal correspondence exchanged with his family and such notables as Supreme Court Justice Felix Frankfurter and essayist Walter Lippmann.

In the correspondence, Gunther soon discovered that the sociable judge had a darker side. "I think he used social occasions as an antidote to bouts of profound melancholy."

Hand's self-doubt, demonstrated repeatedly in his letters, is also "the key to his renown and performance as a judge," Gunther said he came to realize. "He came as close to open-minded, neutral judging as any judge we've had. He worried about being fair; we could use more judges like that."

In Hand's most famous speech, made at a Central Park naturalization ceremony for immigrants in 1944, he began by defining the spirit of liberty as "the spirit which is not too sure that it is right." Such a philosophy serves the judicial branch well, although perhaps not the executive, Gunther said, noting that President Clinton left out this line when he quoted from the speech at a recent press conference announcing his latest Supreme Court nominee.

"Judging in the Hand manner means primarily a modest, restrained rather than activist role for the judge and above all skepticism and open-mindedness, qualities Hand considered central to judging," Gunther said. "I call him a liberal with a small 'l' because his ideas were very strongly respectful of individual human beings and of their rights to speak out."

Hand's skepticism, Gunther said, was rooted in the death of his father when Learned was 14. Somewhat remote in life, Hand's father took on mythical proportions in death, Gunther writes in the biography.

Until his own death in his 90th year, Learned Hand frequently praised his father's superior qualities. "His standards for himself were the mythical standards of his father, standards that were always unreachable and so, by definition, he always fell short of them."

Some of Hand's later experiences at Harvard, in law practice and in his marriage added to his low self-esteem, Gunther said.

He aspired to join Harvard's elite Porcellian Club after he entered college in 1889, but was rejected.

Gunther, who experienced outright social ridicule as one of two Jewish students in a grade school in Nazi Germany, notes that Harvard historian Samuel Eliot Morison wrote once that nobody who couldn't aspire to join Harvard's exclusive clubs cared much about them. "I certainly didn't care when I was at Harvard," Gunther said.

Hand, however, he said, took the slight more personally for he was "practically Mayflower-generation American."

"He was at least marginally qualified for acceptance into the inner circle, he did care, and he never forgot it," Gunther said, noting that Hand always referred to his Harvard position as that of an "outsider. "

The outsider experience may explain how Hand could "maintain more empathy for people of different backgrounds" than many of his correspondents, who frequently used pejorative terms for Jews and other immigrant groups in letters to Hand, Gunther said. Hand also worked hard to get a Jewish lawyer friend admitted to Albany's prestigious Fort Union Club and opposed the Harvard president's proposal to set up an exclusionary quota system in the 1920s.

More difficult to sort out for Gunther was the impact of Hand's unusual marriage to Frances Fincke. "She was a mystery to me," he said, "until I serendipitously happened onto the diaries and correspondence of Mildred Minturn, Mrs. Hand's roommate at Bryn Mawr" and a summer neighbor of the Hands early in their marriage.

"Every single letter that Frances wrote to Mildred is richer than all the letters she wrote to her husband and family put together," Gunther said. When Minturn married and moved to England, Frances Hand was heartbroken.

At a Stanford biographer's seminar, several of Gunther's feminist colleagues once suggested that he was "covering up" a lesbian relationship in his draft of a chapter on the Hands' difficult marriage.

"I'll forever be grateful to Estelle Freedman, a historian of marriage and sex here, who finally said to them, 'You don't know what you are talking about. Gerry is absolutely right. A close friendship at the turn of the century is not enough to demonstrate lesbianism. You are losing sight of the historical context.' "

After Minturn married, Frances Hand began spending much of her time with Louis Dow, a professor of French at Dartmouth whose wife was hospitalized in a mental institution. Dow and Mrs. Hand were close friends until his death, and Mrs. Hand regularly wrote to her husband about her excursions with Dow.

Mrs. Hand replaced her friendship with Minturn, Gunther said he believes, with a similar one with Dow. Both friends were people with whom she liked "reading French poets and novels and taking long walks in the countryside, which she truly loved," he said. "Learned was a judge and he could not take six months a year off to live with his wife in the country."

The distance in their relationship clearly enhanced Hand's self-doubts, Gunther said, "as well as serving to raise a few eyebrows."

"My own belief is that there was no physical relationship between Frances and Dow, but I don't think it makes a damn bit of difference in assessing the impact on Learned Hand," Gunther said. "It was clearly a close friendship, and it's almost as bad if you realize your wife feels the need to be with another fellow as if she slept with him. It heightens your sense of inadequacy."

Hand's sense of personal inadequacies, however, did not lead him to intellectual paralysis, Gunther said. Hand is still highly admired for his essays and his thousands of clear judicial opinions that followed the law, not ideology.

"You could not predict how he would rule on a particular case, the way you can predict many judges, because he did not let ideology or the interests represented in a case dictate his decisions."

The tie between Hand's "personality and his approach to judging," Gunther said, "permeates his entire career: The self-questioning, open-minded human being could not help acting that way as a judge."

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