JUSTICE HUGHES

JUSTICE HUGHES' APPOINTMENT--THE COTTON STORY RE-EXAMINED

Frederick Bernays Wiener

Copyright 1981 by the Supreme Court Historical Society
From Yearbook 1981 Supreme Court Historical Society

Did President Hoover offer the Chief Justiceship of the United States to Charles Evans Hughes over the telephone in 1930, and was that offer made following a conversation that the President had with Under Secretary of State Joseph P. Cotton?

Along with two others, I heard the original story, which answered that query affirmatively, within a year after the event with which it was concerned, from the lips of the man to whom it had been told by Under Secretary Cotton. Later, when the same account surfaced publicly some years after Cotton's death, it was denied, with varying degrees of emphasis and forthrightness, by a number of persons, including the individuals principally involved. More recently, a distinguished legal scholar concluded that "there are some known facts that support the denial."1

But re-examination of the original story in the light of additional evidence not previously available discloses that the primary denials are not only flawed by omissions, obliquities, and by a significant slip, but are moreover flatly contradicted at a vital point by the newly uncovered materials. Thus one is relentlessly led to the view that the event did indeed take place, precisely as Cotton related it half a century ago.

Mindful of the rule of evidence that testimony to a conversation is inadmissible unless there had first been laid a proper foundation as to place, time, and persons present,2 I commence my account with those preliminaries.

Place: A dining room of the Providence-Biltmore Hotel in Providence, presently (at one remove) The Biltmore Plaza. Time: Fairly late on the evening of Thursday, February 5, 1931, the Tercentenary of the landing in America of Roger Williams, founder of Rhode Island. Earlier in the evening, at a program sponsored by the Rhode Island Historical Society to commemorate that anniversary, I had delivered the principal address.3 Among those in the audience to hear me were Professor Felix Frankfurter, who had been my teacher, and was to continue a warm and indeed a devoted friend for 34 years more; and Henry M. Hart, Jr. and Orrin G. Judd, who had been my classmates in the Harvard Law School class of 1930, and fellow editors of volume 43 of the Harvard Law Review: Henry had been President, Orrin was Case Editor, I had served as Note Editor.4 Hart was then doing graduate work at the Harvard Law School, and later was to be Dane Professor of Law there. Judd, then law clerk to Judge Learned Hand, ended his career as a United States District Judge for the Eastern District of New York. At that time I was an associate of the law firm of Edwards & Angell in Providence.

Following the lecture--and this is the third foundational element--persons present--Mr. Frankfurter as host took the three of us to the Providence-Biltmore for a late supper of Welsh rarebit and near-beer. Justice Frankfurter died in 1965, Professor Hart in 1969, Judge Judd in 1976. In 1972, Judge Judd, next-to-last survivor of the quartet present that evening, confirmed to me in writing the accuracy of my recollection of what had then been said.

At the supper table, Mr. Frankfurter, after detailing the difficulties President Hoover had encountered in making up his mind about whom to appoint as United States Attorney for the Southern District of New York--where F.F. had served as an assistant to Mr. Henry L. Stimson from 1906 to 1909 5--told us how Charles Evans Hughes had become Chief Justice.

Not part of the narration that evening were the following facts:

Chief Justice Taft became ill after the Supreme Court's adjournment on December 2, 1929, and entered a hospital in North Carolina early in January.6 He stayed there for about a week,7 and returned to Washington literally on the verge of death. According to a contemporary account, "When he arrived at the Union Station, onlookers were shocked by his appearance. All color had gone from his deflated cheeks. His eyelids drooped listlessly. He was unresponsive to sights and sounds."8 A photograph of the Chief Justice showing him being wheeled from the train established all too plainly the accuracy of the foregoing report.9 His retirement as Chief Justice was dated February 3, 1930, the day of that return to the capital.10 A little later it was announced that President Hoover had called on the ailing Chief Justice and had spent ten minutes with him.11 But, between the end of Taft's hospitalization in North Carolina and his return to Washington, members of his family had notified the President that the Chief Justice could no longer continue in office, and that a formal resignation would be forthcoming.

Contemporary accounts show that at this time, the week of January 27, 1930, while Secretary of State Henry L. Stimson was away at the London Naval Disarmament Conference, Under Secretary Joseph P. Cotton was Acting Secretary, occupying the Secretary's suite. He was an old and warm friend of President Hoover who had been a trusted assistant in the U.S. Food Administration in 1917-1918.12 The President was simultaneously in his temporary office in the State, War & Navy Building (now the Executive Office Building). It was reported that "acting Secretary of State Cotton was just down the corridor and around the corner. The President's door was open to him at any hour."13

It was Cotton who had told the story of the Hughes appointment to his old and close friend Felix Frankfurter.14 And that was the story Professor Frankfurter told us at supper:

News of the impending Taft retirement reached the President while Mr. Cotton was with him. The latter immediately said, in substance--and the conversations that follow are, necessarily, given in substance--"That provides you with a great opportunity, Mr. President. Now you can promote Justice Stone to be Chief Justice." Justice Stone was not only a member of Hoover's medicine ball cabinet that met daily on the White House lawn at 7:30 A.M.,15 but Justice and Mrs. Stone had long been close friends of the Hoovers,16 an intimacy reflected in their Sunday evening suppers together over many years.17

"And then," continued Cotton, "you can appoint Judge Learned Hand to fill Stone's place, and thus put on the Supreme Court the most distinguished federal judge on the bench today."

The President had doubts.

"That would be fine, very fine. But I feel I must offer the Chief Justiceship to Governor Hughes. As a former Justice there can be no question of his qualifications, and I feel so greatly obliged to him for that splendid speech he made for me on the Saturday before election18 that it would be unforgivable ingratitude on my part not to offer him this position."

"But Mr. President," said Cotton, "Hughes can't take it. His son Charles, Jr., is your Solicitor General, and in that job he handles all government litigation before the Supreme Court. That comes to about 40 percent of all the cases there. Consequently, if the father is Chief Justice, the son can't be Solicitor General. That means that Governor Hughes won't accept."

"Well," said the President "if he won't, that solves our problem. Then I can promote Stone and appoint your friend Hand. But, since the public knows Hughes and not Hand, it would be fine to announce that I had offered the post to Hughes before appointing Stone and Hand.19 So I really must make the offer to Hughes."

Which he proceeded to do, over the telephone. (President Hoover had a reputation for constant use of the long distance telephone, and this was given as an explanation of his immediate inquiry concerning Hughes' availability.)20

And then--here I quote Cotton as related by Frankfurter, this time verbatim--"the son-of-a-bitch never even thought of his son" For Hughes accepted then and there.21

That is the way F. F. told us the story, now 50 years ago. Memories of course play tricks, but Judge Judd in September, 1972 remembered the incident distinctly, and wrote that the foregoing account "agrees in the main with what I recall."22 As indicated, it has been revised to conform to his recollection as well; where his memory differed from mine, I have deferred to his. And he then permitted me to quote his own diary entry for February 5, 1931, as follows:

"Fritz speech on Roger Wms in eve, then dinner with Henry, F.F. & heard Hand, Hughes story."23

The story above related apparently did not appear in print until 1935, in a serialized magazine article about Chief Justice Hughes, written by Henry F. Pringle, who later became the biographer of Chief Justice Taft.24 By that time Cotton was dead,25 and Chief Justice Hughes' Autobiographical Notes had not been written, much less published.26 Here is what Pringle then wrote in The New Yorker:

"On February 3rd, 1930, Chief Justice Taft, shattered in body and apprehensive that he could no longer carry on the duties of the Court, submitted his resignation. It had to be accepted. Mr. Hoover, according to the best information, desired to promote Associate Justice Stone, his close friend. He confided this to the late Under Secretary of State Cotton, who said that it was out of the question to pass over Mr. Hughes. But Hughes, he added, would not accept. He was earning enormous fees in private practice. Besides, Charles E. Hughes, Jr., would have to resign as Solicitor-General if his father became Chief Justice. `Offer it to Mr. Hughes,' suggested Cotton. `He'll decline and then you can pick Justice Stone.'

"It was offered to Hughes and he promptly accepted."27

About a year and a half afterwards, two well-known if essentially vituperative journalists, who today would be dignified as "investigative reporters"--the reference is to Drew Pearson and Robert S. Allen--undertook in advance of publication the serialization of their rancorous caricature of the Supreme Court, entitled The Nine Old Men. Here is how their version of the incident appeared in the book:

"Shortly after Chief Justice Taft died, the late Joseph P. Cotton, Undersecretary of State, was called to the White House for advice as to whom he should appoint as Taft's successor. Hoover, who leaned heavily on Cotton in all important matters, told him that he wanted to elevate his old friend Justice Stone to that office, but considered himself under obligation to Charles Evans Hughes, who had campaigned most effectively in his behalf, and who, he felt, carried great prestige throughout the nation.

"Cotton agreed emphatically that Stone was the man for the chief justiceship, and mentioned the idea of elevating Judge Learned Hand of the United States Circuit Court in New York, as a successor to Stone as associate justice.

"`What I would like to do,' said Hoover, `is to offer Hughes the appointment but make sure that he will turn it down.'

"`That's very simple,' suggested Cotton. `Hughes's son, Charles Evans, Junior, is Solicitor General and argues the government's cases before the Supreme Court. If his father became chief justice he would have to resign, and I'm sure Hughes wouldn't have him do that. Hughes is almost seventy years old. He has lived his life. He has received almost every honor there is to receive. He doesn't need the job, while being Solicitor General means a great deal to his son who is just at the start of his public career. So you can offer Hughes the appointment and be sure that he will turn it down.'

"Hoover thought this was sound reasoning and got Mr. Hughes on the long distance telephone immediately.

"`Mr. Hughes,' he said, `I would like to offer you the chief justiceship of the Supreme Court.'

"Without a moment's hesitation, Hughes replied:

"`Mr. President, this is a very great honor indeed. I accept.'

"Hoover and Cotton looked at each other in astonishment. Then the latter exploded:

"`Well, I'll be damned! Can you beat that? The old codger never even thought of his son.'28

It is doubtless unnecessary to dwell on the many details in which the Pringle and Pearson-Allen versions differ from the original Frankfurter account as set forth here and as still remembered by Judge Judd in 1972.

III

When the foregoing excerpt was called to ex-President Hoover's attention, early in 1937, he sent the following letter to Chief Justice Hughes:

"My attention has been called to the serializing of a scurrilous book on the Supreme Court in one of the newspapers here, in which a purported conversation of mine with Joe Cotton at the time of your appointment is related.

"I scarcely need to say that no such conversation ever took place, and your own recollections will confirm mine that I never had any telephone conversations with you at all on the subject. I only write this so that you might file it away in your memoirs, although I think it is hardly necessary.

"I am not capable of expressing my indignation at this book and its authors. One of those men was discharged from the Baltimore Sun and the other from the Christian Science Monitor for deliberate lying. The discharge, however, did not seem to effect any moral regeneration."29

The Chief Justice replied on the very next day:

". . . The story of a conversation between you and Cotton, at the time of my appointment, first appears, I think, in July, 1935, in an article by Henry F. Pringle in The New Yorker. Pringle is a serious writer and was friendly. What he said about your conversation with Cotton greatly disturbed me, as it was utterly inconsistent with your offer to me and with all I knew of the circumstances of my appointment. I thought of writing you about the matter, but let it pass. Your letter disposing of this story is most welcome and I shall treasure it as a valuable item for those who in the future wish to write with accuracy.

"I wonder if you would let me quote to Mr. Pringle the first two paragraphs of your letter. I understand that he is writing Mr. Taft's biography and he has important articles from time to time in magazines and reviews. He may be tempted to repeat the story and I should like to see it suppressed."30

The ex-President referred to the matter a few days later, saying that he was unaware when he first wrote "that this telephone story had other antecedents than those two particular imaginative minds." He continued:

"The whole story falls to the ground from the fact that no telephone conversation as to your appointment as Chief Justice ever took place. That you and I can both confirm. If our joint word is no good, one would think it improbable that Presidents use the telephone in such vital matters, especially in the extraordinarily confidential circumstances that surrounded the incident.

"You may be interested in that background. I have had it looked up in the Presidential files and I have checked my memory from the White House Secretary concerned.

"Chief Justice Taft became indisposed early in January, 1930, and went to North Carolina for a rest. Late in the month I received word from a member of the family that unless the Chief Justice soon showed improvement, he would be compelled to resign in order to have complete rest and that this contingency was almost certain. I at once discussed the question of his possible successor with the Attorney General. To my great satisfaction, Mr. Mitchell urged your appointment. The question required no consultation with others. It was the obvious appointment.

"I discussed it with but one other gentlemen and that was not Mr. Cotton. Mr. Cotton was Under Secretary of State and had nothing to do with judicial appointments.

"I sent word to you asking you to come to the White House. You did so on January 31."31

The letter then concludes with Mr. Hoover's recollection of that meeting with Mr. Hughes.32 The Chief Justice replied, outlining his own "vivid memory" of the interview in question, which differed in two respects from that of the ex-President; and then concluded:

"I am glad to have your emphatic repudiation of the absurd story which it seems has gained considerable currency. I suppose a good deal of such unfounded gossip passes into history!"33

Chief Justice Hughes' definitive recollection of his White House interview with President Hoover on January 31, 1930, will be considered below; first it is appropriate to deal with the Hoover denials, and particularly with his flatfooted assertion that "Mr. Cotton was Under Secretary of State and had nothing to do with judicial appointments."

That sentence, which first appeared in print in 1967,34 simply fails to carry conviction.

First of all, Mr. Hoover was writing, not to an uninformed outsider, but to one who, to his own certain knowledge, had actually been a Secretary of State. After all, both had been members of the Harding-Coolidge Cabinet from March, 1921 to March, 1925, Hoover as Secretary of Commerce, Hughes as Secretary of State.

Next, the obvious obliquity of the quoted sentence raises instant doubts as to its trustworthiness. That is because, on its face, it verges on deadpan nonsense, on a par with the congressional committee reports that supported repeal of the old statutory provision that "here-after women shall not be allowed to accompany troops as laundresses" on the stated ground that the Quartermaster Corps' operation of laundries had rendered it obsolete.35

The position is even more striking once one proceeds dehors the assertion itself. That is because by making that statement ex-President Hoover in effect disowned one who had been very close to him for years as a trusted adviser. As has been noted, Cotton and Hoover had been together in the U.S. Food Administration in what in 1931 was still the World War.36 That circumstance of course forged an indissoluble bond between them, as common service in crisis virtually always does. At the time in question, the President and the then Acting Secretary of State were constantly in each other's presence, each in temporary quarters in the same building that were in close proximity. All this would explain why the President could indeed have discussed the filling of the Supreme Court vacancy with a close lawyer friend who was not in the Department of Justice at all.

And then there is the vital testimony of Under Secretary Cotton's lawyer chief, Secretary of State Henry L. Stimson. Here is what Justice Frankfurter said later:

"Cotton was a tower of strength. He died within two years. I don't know the details. It was too awful. I went up to his funeral in Bedford Village, New York. Mr. Stimson was there, and he asked me to ride back with him to the station. I remember that strong man, Mr. Stimson, was really in tears about Joe Cotton's death. I remember sitting there, and he clasped my thigh, and he said, `Felix, you know a great deal about the goings on of this administration, but even you don't know what Joe's loss means to the country.' And then he made this statement, `He's the only man who can do anything with the President.'37

Mr. Hoover's 1937 denials also made no mention of Justice Stone, who had been his close and indeed intimate friend since their association in the Coolidge cabinet, Stone as Attorney General, Hoover as Secretary of Commerce. More than that, Stone remained his friend throughout. It is surely significant that, as the far from glorious Hoover presidency came to its dismal end on March 4, 1933, that dark day when the doors of every bank in the country had clanged shut, among the very few persons who came to see the ex-President off at the Union Station after the inauguration of his successor were Justice and Mrs. Stone.38

Mr. Hoover's latest biographer, who treats his subject sympathetically, has pointed out that, in the ex-President's Memoirs, "the errors are legion."39 That is a reason, additional to Mr. Hoover's unconvincing repudiation of Joseph P. Cotton and to his failure even to mention Harlan F. Stone, why his denials are suspect on their face.

Let us refer to Chief Justice Hughes' definitive account of his January 31, 1930, interview with President Hoover; here is what appears in the text of his Autobiographical Notes:

"At President Hoover's request, I came to Washington the night of Thursday, January 30th, and saw the President at the White House early the next morning. It appeared that Chief Justice Taft was failing rapidly; there was no hope of recovery, and the fear was entertained that unless he resigned at once he might lapse into a mental condition which would make it impossible for him to resign and in which he might continue for an indefinite period. The President wished to be ready for the contingency of the Chief Justice's resignation and proposed my appointment. I demurred, referring to my age (I should be 68 in the following April), and my desire not to assure further and heavy responsibilities. After some discussion in which the President strongly urged me to accept, I finally told him that I would, making the qualification that I did not wish my nomination to evoke any contest over confirmation. I made this qualification because I had taken an important part in the Republican campaign of 1928 and had also been very active in my law practice. The President did not seem to think there would be opposition and urged that my acceptance would be very satisfactory to the country.

"Chief Justice Taft resigned the next day (February 1st) and on the following Monday (February 3rd) the President sent my nomination to the Senate. The Senate confirmed it on February 13th."40

The Chief Justice's Autobiographical Notes then go on to quote Pringle in The New Yorker, as well as the several letters that passed between him and ex-President Hoover about that and the Pearson-Allen version, excerpts from all of which have already been set forth.

Three points about the extract just quoted call for comment.

First, the Chief Justice is demonstrably wrong in dating the Taft resignation on February 1st. On this point he is contradicted by the official record,41 by a reliable contemporary account reporting that announcement of the Hughes nomination followed that of the Taft resignation by only four hours,42 and by Mr. Hoover's 1937 recollection in accord with those two.43

Second, the Chief Justice's text never mentions his son; that individual is mentioned by name only in Mr. Hoover's second letter, the one written on February 25, 1937:

"My recollection of that interview [of January 31, 1930] you can also confirm. We discussed the subject at great length. I urged many reasons for your taking it. You felt you should be allowed to finish your life in peace. You felt it might interfere with the career of Charles, Jr. I stated that we were anxious to keep him in the Government in some other equally important post. I urged the confidence your acceptance would bring to the whole country and that it would meet great response in the people. You promised to let me know in a day or so.

"I was convinced your sense of public service would compel you to accept, and I reported to the Attorney General that he could consider it settled if Mr. Taft felt he must retire. A day or so later you sent word to me, either through Charles, Jr. or the Attorney General that you would accept."44

To the foregoing letter, Chief Justice Hughes replied on March 8, 1937, saying:

"My recollection agrees with yours in every respect, except that I think I gave my acceptance at the time of our interview subject only to the qualification that I did not wish my nomination to evoke a contest over confirmation. However, that is an unimportant detail. * * * I do not recall sending you a confirmatory message."45

What may however appear important is that, according to the Chief Justice's later recollection, he accepted the offer at the time it was made to him. And as for Charles, Jr. who duly resigned as Solicitor General on the day following his father's confirmation as Chief Justice,46 it is the fact that he never thereafter held any federal office at all, and apart from membership on a temporary commission of New York State, was never afterwards appointed to any public office whatsoever.47

Third, neither the Chief Justice nor the ex-President ever explain, in their 1937 correspondence, how the former was on January 30, 1930, invited to come to the White House the next day. One cannot learn from those letters by what means that invitation was extended, or whether it came directly from the President or was conveyed by an aide.

Finally, and this item comes from another source, the Chief Justice's 1937 wish to have the Cotton story "suppressed"48 was simultaneously conveyed to Mr. Pringle, then working on his biography of Taft, by the Chief Justice's son and daughter.49

Accordingly, the sequence of events as remembered by the principals concerned raises these queries:

Was the January 30 invitation to come to Washington the next day in fact extended to Mr. Hughes on the telephone by the President himself?

If so, was this the telephone conversation of the Joe Cotton story?

And if it was, would not even a tentative acceptance of the tendered Chief Justiceship be consistent with an invitation to come to Washington to discuss the matter in more detail and at greater depth?

At any rate, some time in 1937, probably after President Roosevelt had unveiled his Court Plan, I saw in a newspaper or magazine that I cannot now identify a journalist's interview with Chief Justice Hughes, in which the latter was quoted as flatly denying that the office he then held had been offered to him over the telephone.

Some time thereafter, probably rather sooner than later, I called that denial to Mr. Frankfurter's attention. As nearly as I can now recollect, I did so face to face, because I remember vividly his spoken response: "I can show you the iron manhole cover in Times Square on which Joe Cotton and I stepped when he told me the story."

At the outset of Chief Justice Hughes' tenure, Mr. Frankfurter more than once expressed himself in print as unhappy over the former's votes.50 I can recall receiving from F.F. at about this time, 1932 or 1933, a letter in which he wrote, in substance, "I am more and more disturbed over the alignment of your Brown Chief Justice." (Chief Justice Hughes had graduated from Brown University in 1881; I received my bachelor's degree there in 1927.)

So it is therefore not wholly surprising that relations between the two men were hardly close immediately after Frankfurter was appointed to the Supreme Court.51 But before very long mutual wariness was replaced by mutual respect. The Chief Justice presented F.F. with an inscribed portrait that bespoke his "esteem,"52 while, after Hughes' retirement and then more frequently after his death, the younger Justice paid repeated tribute to his former Chief.

Speaking personally now, and as one whose participation in Supreme Court advocacy extended over a span of more than 35 years,53 I never felt, at any time, the slightest inner doubts as to the qualities or competence of Charles Evans Hughes. He was a far better presiding officer than any of his successors and an infinitely better lawyer than any of them except Stone, whom he probably also excelled, though not to nearly the same degree.

But history also has its claims, and the incident herein discussed at length has a bearing on history, particularly on the history of the nation's highest court; in that it involves, not prying into private lives, but rather a study of the acts of two very public persons at a significant national crossroads in time.

VII

A number of conclusions can fairly be extracted from the contradictions apparent between the account set forth in Part I hereof and the subsequent denials discussed in Parts III and IV, as well as from the omissions contained in those denials from their contradictions inter sese.

1. Hoover and Hughes both agree that they met and discussed the offer of the Chief Justiceship on January 31, 1930, and that the invitation to Mr. Hughes to come to the White House was extended on the day before.54 Mr. Hoover checked both dates against the White House records.55

Even in those days of infinitely better postal service than we enjoy today, that invitation could not have been extended by letter in time to bring Mr. Hughes from New York to Washington for an early morning meeting on the following day. A telegram, which would necessarily pass through several hands at both ends, could not guarantee prompt delivery to the actual addressee, and would moreover not be private. And President Hoover was, long before direct dialing, much given to consistent use of the long distance telephone. Undoubtedly, therefore, the President asked Mr. Hughes by telephone to come to Washington the next day, January 31.

2. As has been seen, Cotton in January, 1930 was Acting Secretary of State, occupying the Secretary's office, which was in the same building as, and in close proximity to, the temporary office then being used by the President, to which Cotton had access at all hours.56

Mr. Cotton was also personally close to the President, a relationship originally grounded on their war-time service together in the U.S. Food Administration.57 And, as Secretary of State Stimson lamented, some fourteen months later when his Under Secretary died, "He's the only man who can do anything with the President."58

3. There is a good deal of evidence, much of it actually in the interstices of the denials, that actually corroborates the Cotton story.

(a) Thus, Justice Stone was not only a close but indeed an intimate friend of President Hoover.59

(b) According to Cotton, Mr. Hughes never gave any thought to what acceptance of the Chief Justiceship would mean to his son's career. In his dictated Autobiographical Notes, Chief Justice Hughes in telling of his January 31 talk with the President never mentions Charles, Jr.;fn60 the latter appears only in Mr. Hoover's 1937 letter reciting his own recollection of that same conversation.61

(c) According to Cotton, Hughes accepted immediately. Here also, in his dictated Autobiographical Notes, the Chief Justice says that he accepted the offer on January 31, subject only to the qualification that he did not want a fight over confirmation,62 a reservation with which the President was of course powerless to comply. And, here also, it is only in Mr. Hoover's 1937 letter about the January 31 talk that there is any mention of acceptance being postponed for a few days.63

4. President Hoover's denials of the Cotton story are, for a number of reasons, simply not credible.

(a) There is of course nothing inherently improbable about a President offering a Supreme Court appointment over the long distance telephone; that was precisely the way that Franklin Roosevelt, only a few years later, tendered one to Professor Frankfurter of the Harvard Law School.64

But, far more significantly, it has since been incontrovertibly established that, just two years after the Hughes appointment, on the occasion of Justice Holmes' retirement, President Hoover offered the resultant vacancy to Chief Judge Benjamin N. Cardozo of the New York Court of Appeals over the telephone! Here the proof rests on the White House phone logs plus the recollection of Chief Judge Cardozo's law clerk.65

(b) The White House phone logs are unavailable for the Hughes appointment, as they only start in July, 1930.66 But President Hoover's latest biographer has established that his subject's Memoirs are not only replete with factual errors, but are full of self-deception as well.67 After all, here we have President Hoover asserting in 1937 that he could not possibly have done an act that the newly found proof shows he had actually done in 1932.

(c) President Hoover, likewise, is silent concerning the means by which he extended his invitation to Mr. Hughes to be at the White House on January 31.

(d) His brushing aside of Joe Cotton, long-time intimate, is surely less than commendable, while his bland abstract assertion that an Under Secretary of State had no concern with judicial appointments68 is, in the circumstances, disingenuous at best.

(e) Mr. Hoover's complete silence about his intimate friend Justice Stone similarly raises doubts about his denial.

(f) As for Mr. Hoover's denial that he had ever discussed the matter with Cotton at all, Chief Justice Hughes would of course have no independent knowledge as to who if anyone was with the President at the time of the telephone call that was undoubtedly made on January 30, and which in fact brought him to the White House the next day.

(g) The Cotton story was far from creditable to the ex-President, in two respects. It showed him extending the offer of a supremely important office in the expectation, and probable hope, that it would not be accepted. And it showed him ignoring the claims of his very close friend, Mr. Justice Stone, whom he may well have preferred as the appointee, regardless of how many other prominent persons may have specifically recommended, and indeed strongly urged, that he appoint Hughes.

Mr. Hoover accordingly had every motive to deny the Cotton story when it first came to his attention, in somewhat garbled form, nearly six years after Joe Cotton had been laid in his grave. Doubtless the ex-President felt that he could then do so with impunity.

5. Chief Justice Hughes' apparent denials of the telephonic offer also break down under close analysis.

(a) He, like President Hoover, fails to say by what means, on January 30, he was requested to come to Washington the next day.69

(b) His dictated account of an immediate acceptance at the January 31 meeting, together with his failure to mention Charles, Jr., in that account,70 are, while contradicted by Mr. Hoover,71 entirely consistent with the two core elements of the Cotton story. Indeed, this double concordance constitutes the weightiest kind of corroboration, by the Chief Justice himself, of the very heart of Joe Cotton's recital.

(c) Immediate acceptance of an offer of the Chief Justiceship, made over the telephone and this without opportunity for reflection, has as a psychological matter the ring of truth.

(i) After all, in 1910 Hughes had missed the Chief Justiceship by a hair. President Taft had all but determined on him as the successor to Chief Justice Fuller, and it was only a last-minute switch, or whim, call it what one will, that induced Taft to select Justice E.D. White instead. As Mr. Justice Frankfurter later said--

"We shall never know the full story of what happened, but within twenty-four hours after the justices called on him there was a change in the mind of Taft, and it was then that White became chief justice. There is the most absurdly contradictory testimony of people who think they do know what happened. Within a half-hour after Taft had summoned Hughes, probably to tell him he was going to be chief justice, he cancelled the request that Hughes come. During that time something happened.

"Anyhow, White was made chief justice. At the Saturday conference following the sending of White's name to the Senate, Hughes, the junior member of the Court, made what I am told was one of the most gracious speeches of welcome to the new chief justice."72

Yet Hughes would have been less than human if he had not felt at least residual disappointment at the ultimate outcome.

(ii) Then too, a Mr. Justice Frankfurter twice observed, Hughes came to regret his resigning from the Supreme Court in 1916 to run for President.73 In the aftermath of his hairbreadth defeat in that year,74 successful and resourceful as he later proved to be as Secretary of State, pre-eminent though he inevitably was as a universally acknowledged leader of the American bar,75 and that solely by virtue of unparalleled professional competence, it is inconceivable that he would not on occasion prior to 1930 have wondered whether, on balance, he should not have declined the presidential nomination tendered him in 1916.

Once more to quote Justice Frankfurter,76 ". . . the question will not down, futile as such doubts of retrospective wisdom are, whether at the end of his life he would not have preferred the rule of conduct he formulated in 1912, when he declined to be drafted,77 to the exception he made in 1916."78

(d) The conjunction of the foregoing events--the two near misses, first the Chief Justiceship and then the presidency--would explain why, if the obviously unexpected offer was made early in 1930 in the way recounted by Cotton, in a manner that precluded the formulation of a reasoned response after deliberation, Hughes accepted, instinctively, somewhat impulsively, and immediately. Had the same offer been transmitted by mail in the first instance, he would undoubtedly have reflected on how his acceptance would, as in fact it did, blight the public career of Charles, Jr. But on the telephone--

(e) If indeed the offer was made over the telephone, as it was according to Cotton, and as a similar offer was made to Chief Judge Cardozo by President Hoover just two years later, that of course was different, and reflections would only come afterwards. They could not all have been pleasant--and it has long been a settled tenet of psychology that unpleasant matters are invariably forgotten.79 That pervasive fact of human life doubtless underlay all later reluctance to admit the circumstances of the offer as related by Cotton.

6. Even though that relation necessarily became hearsay once Cotton was dead, it can confidently be asserted that there were no flaws in its transmission.

The Cotton story as set forth above was repeated by Mr. Frankfurter early in February, 1931, almost exactly one year after the event with which it dealt, and doubtless substantially less than a year from the time that Frankfurter heard it from Cotton. And the present version of Frankfurter on Cotton was confirmed by Judge Orrin Judd in 1972 in every essential detail.

Accordingly, the reader may safely accept Part I above as correctly reproducing what Mr. Frankfurter told Hart, Judd, and myself in 1931.

The next inquiry accordingly is, Did Professor Frankfurter accurately recount what he had heard from the lips of Joseph P. Cotton?

We can be sure that he did. For all of Felix Frankfurter's utterances and remarks, oral as well as written, were characterized by a lifelong devotion to meticulous accuracy. He was, in everything he said and did, a most fastidiously truthful individual. There were many persons who failed to admire him, to be sure; and, like every human being, he was not immune to some of the frailties of mankind, minor though his own lapses were when viewed in context. But, when it came to accuracy, to exactitude, to preciseness, to veracity, he was absolutely uncompromising. His whole life reflected a dedicated and unceasing quest for truth. As Professor Freund said in the moving and hauntingly eloquent tribute that he delivered at Justice Frankfurter's funeral service, F.F. was indeed a "Mr. Valiant-for-truth."80

That much was admitted even by his most tenacious adversaries. Actually, perhaps the most significant tribute in that regard, fantastically grudging though it was in expression, came from President A. Lawrence Lowell of Harvard, on the occasion of the bitter Frankfurter-Wigmore dispute over the Sacco-Vanzetti case, the controversy that roused all of proper Boston and sorely split the university itself. Said Lawrence Lowell to a friend, "Wigmore is a fool! Wigmore is a fool! He should have known that Frankfurter would be shrewd enough to be accurate."81

It is therefore impossible, literally and utterly impossible, that the Cotton story as related by Professor Frankfurter in February, 1931, so soon after he had heard it from Joe Cotton himself, could have been in any vital respect an inaccurate version.

7. Let us turn to the source of the story, Joseph P. Cotton. He was, as Justice Frankfurter later told in his Reminiscences, "As capacious-minded, as effective a man of law as anyone I know of in my time. . . . He also had scholarly interests and had a hankering for public affairs."82 When Secretary of State Stimson commissioned his law partner George Roberts and his friend and former assistant Professor Frankfurter to combine in finding him an Under Secretary on whom they could jointly agree, they picked Cotton--with the result that "Stimson was simply in seventh heaven. Here was Joe Cotton. I'm sure Stimson thought that Cotton was as well qualified as he was to be Secretary of State."83

Against that background, having been selected and then accepted by three men, each one of the highest ethical outlook and standards, it is simply out of the question to suppose for a moment that Joseph P. Cotton would concoct out of whole cloth and thin air a story about Herbert Hoover and Charles Evans Hughes that was completely devoid of factual foundation.

Indeed, even if it be argumentatively supposed that Cotton had been capable of fabricating such a calumny, what possible motive could he have had for doing so?

Seven years later, after Cotton was dead, both the ex-President and the Chief Justice may well have wished that the matter had not happened as it did. Each of them then had a motive to deny, Cotton had none in telling the story. And there, quite apart from all else, is the real reason why it is impossible to believe Mr. Hoover, in whom accuracy was all too often deflected by wishfulness; and why one can read between the lines of Chief Justice Hughes' recollections and letters much that confirms the story even as it reflects some degree of residual regret at having been tendered a post that the President really wished to confer on another, and at having impulsively preferred self to son when the tender was made.

8. Finally, on an nth rereading of the 1937 Hoover-Hughes correspondence,84 and of Chief Justice Hughes' recollections85 that were "leisurely dictated" between November, 1941 and the end of 1945,86 one cannot find therein any specific Hughes denial that he had in fact been offered the Chief Justiceship over the telephone on the day before his White House interview with the President. The Chief Justice talks around that assertion, but never directly declares that the actual event did not in fact happen.

Significantly, Chief Justice Hughes in 1937 wrote of the Pringle version of the Cotton story, "I should like to see it suppressed."87 But the objective observer may fairly inquire, Are not falsehoods properly "exposed" rather than "suppressed"?

VIII

After extended cogitation over the years, "after many night watches,"88 and this against the background, and with the advantage of a lifetime of professional experience in the weighing and evaluation of conflicting evidence, there emerges the following conclusion:

The strong probabilities are, indeed the virtual certainty is, that what passed between President Hoover and Mr. Hughes took place over the telephone on January 30, 1930, just as Under Secretary Cotton shortly afterwards told Professor Frankfurter, and just as the latter related it to us at the Providence-Biltmore Hotel on the evening of February 5, 1931.

The only item missing from both accounts was the last part of the Hoover-Hughes telephone conversation, namely, the President's invitation to come to the White House for further discussion on the morning following. Mr. Hoover's denial that there was any such telephone conversation, in any manner, evokes incontestable disbelief in view of the proof now available of his offer of another Supreme Court vacancy, also over the telephone, just two years afterwards. But the missing portion just noted--the invitation to come to Washington for further discussion the next morning--really reconciles Chief Justice Hughes' letters and later recollections with the Cotton story.

When I first heard the Cotton story fifty years ago, I had no reason whatever to doubt it; I knew my erstwhile teacher Felix Frankfurter to be a man of veracity and probity whose every statement of fact could be unreservedly accepted as true.

Today, in the light of all the available evidence--the setting, the relationships, the motivations on both sides, the psychological probabilities, the revealing slips, all of which have been set forth above in full detail--I not only still believe the Cotton story, I submit that the dispassionate observer can safely and confidently accept that story as historical fact.

Notes

1 P.A. Freund, Charles Evans Hughes as Chief Justice, 81 Harv. L. Rev. 4, 6 (1967). This article will in time become a chapter in Professor Freund's Volume for the Holmes Devise History of the Supreme Court, to be entitled Depression, New Deal and the Court in Crisis, 1930-1941; but up to now that book has not appeared.

2 3 Am. Jur. Proof of Facts (1959) 380; I. Goldstein, Trial Technique (1935) § 332; 1 Goldstein Trial Technique (F. Lane's 2d ed. 1969) § 11.34. See Angus v. Smith, Moo. & M. 473, 474 (Nisi Prius 1829; Tindal, C.J.C.P.), where those requirements were first made applicable in instances of self-contradiction. But the invariable American practice today enforces these identical preliminaries as a prerequisite to evidence of all conversations.

3 F.B. Wiener, Roger Williams' Contribution to Modern Thought, 28 R.I. Hist. Soc. Coll. 1 (1935), cited by the Supreme Court, per Frankfurter, J., in Minersville District v. Gobitis, 310 U.S. 586, 594 n. 3 (1940).

4 43 Harv. L. Rev. 99 (1929); id. at 1282 (1930).

5 Felix Frankfurter Reminisces (H.B. Phillips ed. 1960) 38-50. Hereafter cited as F.F. Reminisces.

6 New York Times, Jan. 8, 1930.

7 New York Times, Jan. 15 and 16, 1930.

8 Time, Feb. 17, 1930, p. 17.

9 New York Times, Feb. 4, 1930, p. 1.

10 280 U.S. iii.

11 Time, Feb. 17, 1930, p. 17. Of course this report does not establish that Chief Justice Taft was in fact able to communicate with the President during this visit.

12 Who Was Who in America 1897-1942, p. 264, s. v. Joseph P. Cotton ("with U.S. Food Admin. Dec. 1917, European Representative, U.S. Food Admin. 1918"); 1 H. Hoover, The Memoirs of Herbert Hoover: Years of Adventure, 1874-1920 (1951) 253 ("On the legal staff we secured Joseph P. Cotton [and seven other named individuals]"); id. 352 ("I at once sent Joseph Cotton over to London to see these [Allied Wheat] Executives."); 2 H. Hoover, The Memoirs of Herbert Hoover: The Cabinet and the Presidency, 1920-1933 (1952) 336 ("Secretary Stimson . . . was well supported by such men as Joseph Cotton, William Castle, and Harvey Bundy, who had worked with me before.")

13 Time, Feb. 3, 1930, p. 11; see also id., Jan. 27, 1930, p. 12.

14 F.F. Reminisces, 218-228 (Ch. 21, "Joseph P. Cotton").

15 2 H. Hoover, The Memoirs of Herbert Hoover 327; A.T. Mason, Harlan Fiske Stone: Pillar of the Law (1956) 270-271. Hereafter cited as Mason's Stone.

16 Id. 262-289 (ch. 17, "Friend of President Hoover").

17 The Memoirs of Herbert Hoover, 187.

18 New York, Nov. 6, 1928, p. 17, indicating that it may have been a talk over the radio rather than to a live audience. In my original draft, composed in 1971-1972, the text read, "that splendid Madison Square Garden speech." Judge Judd, commenting on that draft, wrote on Sept. 14, 1972, "I do not remember the part about Hughes' Madison Square Garden speech."

19 This sentence was not in my original draft; it is taken from Judge Judd's letter of Sept. 14, 1972, that sets forth his recollection of the story as told us by Professor Frankfurter.

20 Same comment as to this sentence; it also is taken from that same letter from Judge Judd.

21 ". . . young Hughes may well have had an understanding with his father when he became Solicitor General that he would not stand in the way of any opportunity that his father might have for reappointment to the Supreme Court. . . . Justice Hughes had enough political savvy so that he and his family must have been aware of the possibility of a reappointment. Consequently I would not agree with Joe Cotton's characterizations of Hughes, Sr., even though I do recall that it was part of the language that was quoted at the time. One reason the remark impressed me was that I was then Law Clerk to Judge Learned Hand. He was away in early February, either at A.[merican] L.[aw] I.[stitute] or on a winter vacation, which accounted for my being able to come to Providence." Letter from Judge Judd, Sept. 14, 1972.

22 Id.

23 Id.; also letter from Judge Judd, Sept. 21, 1972.

24 H.F. Pringle, The Life and Times of William Howard Taft (1939). Hereafter cited as Pringle's Taft.

25 He died on March 10, 1931. Who Was Who in America, 1897-1942, p. 264.

26 The Autobiographical Notes of Charles Evans Hughes (D.J. Danelski & J.S. Tulchin, eds., 1973) xi: They were composed between the end of 1941 and the end of 1945 and were originally titled "Biographical Notes"; hereafter cited as Autobiographical Notes. The earlier title was used by Mr. Merlo J. Pusey in his life of the Chief Justice (Charles Evans Hughes [1951], hereafter cited as Pusey's Hughes), and the Professor Freund in the article already cited supra note 1.

27 H.F. Pringle, Chief Justice--III, The New Yorker, July 13, 1935, pp. 18, 19.

28 D. Pearson & R.S. Allen, The Nine Old Men (1936) 74-75.

29 Letter, Hoover to Hughes, Feb. 19, 1937, Autobiographical Notes 292; also 3 Memoirs of Herbert Hoover: The Great Depression, 1929-1941 (1952) 375-376, where however the last two sentences of the letter were eliminated.

30 Autobiographical Notes, 292-293.

31 Id. 293-294.

32 Id. 294.

33 Ibid.

34 Freund, supra note 1, 81, Harv. L. Rev. at 6, note 8.

35 By Sec. 5 of the Act of March 16, 1802, c. 9, 2 Stat. 132, 134, Congress allowed one ration "to the women who may be allowed to any particular corps not exceeding the proporation of four to a company"; this became R.S. §§ 1240 and 1295. By 1878, there were 980 such women, each entitled to a daily ration at 22¢ each (7 Cong. Rec. 3729); as a matter of arithmetic this came to $79,134 per year.

Partly "that thereby they will get rid of a class injurious to the service" (7 Cong. Rec. 3795), partly for reasons of economy (7 id. 3554, 3729, 3795, 4187-4189), Congress in Sec. 5 of the Act of June 18, 1878, c. 263, 20 Stat. 145, 150, declared "That hereafter women shall not be allowed to accompany troops as laundresses: Provided, that any such laundress, being the wife of a soldier as is now allowed to accompany troops, may, in the discretion of the regimental commander, be retained until the expiration of such soldiers present term of enlistment." This section, less the proviso, became 10 U.S.C. (1926 through 1952 eds.) § 664.

In the 1956 revision of Title 10 of the U.S. Code, that provision was dropped because "Obsolete*** Laundry service is now furnished troops by Quartermaster Corps personnel organized as fixed or mobile laundry units, or through commercial facilities." H.R. Rep. 970, 84th Cong., 1st sess., p. 1011; Sen. Rep. 2484, 84th Cong., 2d sess., p. 1020.

36 Supra note 12.

37 F.F. Reminisces 227-228.

38 Mason's Stone 289.

39 D. Burner, Herbert Hoover: A Public Life (1979) 58*, 203, 251, 288, 300, 339*.

40 Autobiographical Notes 291.

41 280 U.S. 111, note 1.

42 Time, Feb. 10, 1930, p. 12.

43 Letter Hoover to Hughes, Feb. 25, 1937, Autobiographical Notes, at 294.

44 Ibid.

45 Ibid.

46 281 U.S. iii, note 1.

47 2 Who Was Who in America, 1943-1950, p. 269.

48 Autobiographical Notes, 293.

49 Mason's Stone 280*.

50 (1) The Supreme Court and the Interstate Commerce Commission (1932), in P.B. Kurland, ed., Felix Frankfurter on the Supreme Court (1970), 228, discussing United States v. Baltimore & O.R.R., 284 U.S. 195 (1931), and Chicago, R.I. & P.R.R. v. United States, 284 U.S. 80 (1931). (Also criticized therein at length was the decision in the St. Paul reorganization case, United States v. Chicago, M., St. P. & P.R.R., 282 U.S. 311 (1931), as to which see M. Lowethal, The Investor Pays (1933); but Hughes, C.J., did not participate in that decision.) (2) Social Issues Before the Supreme Court (1933), P.B. Kurland, ed., supra, at 286, discussing Klein v. United States, 283 U.S. 231 (1931), Heiner v. Donnan, 285 U.S. 312 (1932), and Rogers v. Guaranty Trust Co., 288 U.S. 123 (1933).

51 Here is a characteristic incident three times publicly mentioned by the younger man: "Early in my experience at these Saturday conferences, when I made some remarks that were not wholly in accord with what he thought should be the decision of the Court, Chief Justice Hughes would say, as though it casually fell from his lips, `Well, Professor Frankfurter--I beg your pardon, Justice Frankfurter . . .' I thought he said it once too often, and I said, I hope with smiling deference: `With all due respect, Chief Justice, I regard no title as more honorable, and none that I like more to be called by than `professor'.' F. Frankfurter, The Health of the Society, 1 J. Soc. Public Teachers of Law [n.s.] 363, 364 (1950) (spelling Americanized). For two later versions only slightly different, see Dean James Barr Ames and the Harvard Law School [1956], in F. Frankfurter, Of Law and Life & Other Things That Matter, (P.B. Kurland ed., 1965) 26, 28; and Presentation of the American Bar Association Medal [1963], in Felix Frankfurter: A Tribute (W. Mendelson ed. 1964) 6, 8.

52 Personal observation.

53 My name first appears in the United States Reports in Ickes v. Fox, 300 U.S. 82, 83 (1937); I had argued and lost the case below by a 4-1 vote (Ickes v. Fox, 85 F.2d 294 [App. D.C. 1936]), following which Solicitor General Stanley Reed very generously attached my name to the Secretary's brief on the merits that was ultimately filed.

Then, after my first two Supreme Court arguments, see the note following, there ensued a lengthy professional hiatus during Army service that lasted from March, 1941 to December, 1945; inter arma silent leges.

The war over, I next appeared in the reports as one of counsel in In re Yamashita, 327 U.S. 1 (1946). I am last mentioned by name in the U.S. Reports as counsel for the winning appellant in Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). My last Supreme Court case was B.P.O.E. Lodge v. Ingraham, 411 U.S. 924 (1973), dismissing appeal from 297 A.2d 607 (Me. 1972). But by then the names of counsel were no longer noted in connection with dismissals of appeals or denials of certiorari. Even those who, like myself, deplore the current legitimization of lawyers' advertising (Bates v. State Bar of Arizona, 433 U.S. 350 [1977]), welcomed the anonymity that by then surrounded failures to obtain Supreme Court hearings of cases lost below.

54 Autobiographical Notes 291, 294.

55 Id. 293.

56 Supra note 13.

57 Supra note 12.

58 F.F. Reminisces, 288.

59 Supra notes 15, 16, and 17.

60 Autobiographical Notes 291.

61 Id. 294.

62 Id. 291.

63 Id. 294.

64 F.F. Reminisces 282-284, 287-288.

65 A.L. Kaufman, Cardozo's Appointment to the Supreme Court, 1 Cardozo L. Rev. 23 at 23 and note 1 (1979).

66 Letter from Dale C. Mayer, Archivist, Herbert Hoover Presidential Library, West Branch, Iowa, June 2, 1980.

67 Supra note 39.

68 Autobiographical Notes 293.

69 Id. 291.

70 Ibid; and see also id. at 294.

71 Id. 294.

72 Of Law and Men, 122; see also 1 Pusey's Hughes, 271-294 (ch. 27, "Ascending the Supreme Bench"), and 1 Pringle's Taft, 532-535.

73 Of Law and Men, 133, 146-147.

74 1 Pusey's Hughes, 360-366 (ch. 34, "Defeat Without Bitterness").

75 See particularly 2 id. 582-591, covering Hughes' visit to London in 1924, when, as President of the American Bar Association, he led a large group of American lawyers; and quoting from his addresses at Westminster Hall and elsewhere in connection with that pilgrimage to "the old homestead."

76 Of Law and Men 147.

77 1 Pussey's Hughes, 295-304 (ch. 20, "A Flat `No' in 1912").

78 Id. 315-334 (ch. 31. "The 1916 Nomination").

79 "The forgetting in all cases is proved to be founded on a motive of displeasure." Psychopathology of Everyday Life, in The Basic Writings of Sigmund Freud (A.A. Brill, ed. & tr., Modern Library ed. 1938) 96. See chapters I-VII of the Psychopathology, all dealing with forgetting and concealed memories. The text itself was first published as a book in 1904, although it had appeared in a periodical three years earlier. 2 E. Jones, The Life and Work of Sigmund Freud (1955) p. 11.

80 Felix Frankfurter. Remarks of Paul A. Freund at the funeral service, Feb. 24, 1965, p. 3.

81 F.F. Reminisces 217.
82 Id. 218.
83 Id. 224.
84 Autobiographical Notes 292-294.
85 Id. 291.
86 Id. xi.
87 Id. 293.
88 3 Bracton, De Legibus et Conseutudinibus Angliae (S.E. Thorne, ed. & tr. 1977) 95 (f. 164b).

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