In Pursuit of Right and Justice: Edward Weinfeld as Lawyer and Judge.

Vol. 15 No.3 (March 2005), pp.187-190

IN PURSUIT OF RIGHT AND JUSTICE: EDWARD WEINFELD AS LAWYER AND JUDGE, by William E. Nelson. New York: New York University Press, 2004. 300pp. Cloth. $50.00. ISBN: 0-8147-5828-2.

Reviewed by Renee Ann Cramer, California State University at Long Beach. E-mail: rcramer@csulb.edu

William E. Nelson’s biography of judge Edward Weinfeld, appointed to the US District Court for the Southern District of New York by President Harry Truman in 1950, provides a richly documented history of Weinfeld’s personal and professional life. The book goes far in substantiating Justice William Brennan’s view of Weinfeld, that “there is no better judge . . . on any court,” and in explaining how Weinfeld earned distinction for his integrity, fairness, and diligence on the bench.

Nelson’s ability to exhaustively detail aspects of Weinfeld’s life stems from his close ties to the judge and his family, as well as his position as Edward Weinfeld Chair at New York University Law School. Nelson had access to voluminous records kept by Weinfeld, and he interviewed family members, friends, and former law clerks of the judge. Clearly, Nelson intends his biography as a token of his appreciation for the valuable lessons he learned while Weinfeld’s law clerk and friend.

Admiration for a mentor, however, is not usually good enough reason for a press to publish a book, and Nelson must make a case for the importance of his study. He provides three reasons that a reader should care about Judge Weinfeld. First, he asserts that “the judge’s climb from humble origins to distinction provides an excellent illustration of the way Catholics and Jews descended from turn-of-the-century immigrants were assimilated into the mainstream of New York and ultimately American life during the course of the twentieth century” (p.2).

Second, Nelson argues that close attention to his biography “enable[s] us to examine the compromises he had to make in order to attain professional advancement,” and that “[Weinfeld’s] story tells us that the descendants of turn-of-the-century immigrants did not achieve success without significant sacrifice” (p.3).

Finally, Nelson argues that Weinfeld was “unique” because “the singular style of judging he adopted permeated every aspect of his work from the bench,” and made him “the preeminent trial judge in twentieth-century America” (p.4). This style was typified by judicial restraint (marked by a hesitancy to make new law, and a refusal to make policy), close attention to the facts before him, and a desire “only to do justice between the parties” (pp.4-5).

Unfortunately, these three reasons are over-stated and under-substantiated. The first two contentions – combined, that Weinfeld’s rise to judicial distinction helps the reader understand the pressures faced by Jewish and Catholic immigrants – are plausible, [*188] though not adequately proved. I will only briefly address these claims, below. Nelson’s third point – that Weinfeld’s judicial style was both unique and apolitical – is more problematic, and warrants a more extended discussion.

Chapter 2 briefly examines Weinfeld’s family background and moves quickly to a discussion of youthful education and dreams, and Chapter 3 discusses his early legal life in considerable detail. After apprenticing at law, Weinfeld began his professional life in an eclectic private practice. Whether the proceedings were criminal or civil, he tended to represent the underdog – even the pariah. In divorce cases, Weinfeld often represented the female marriage partner; several of the women who hired him were thoroughly modern in their desire to work outside the home, wear make-up, and even initiate the divorce proceedings. In other civil and criminal cases Weinfeld represented unpopular clients, often against large and powerful opponents, and as Nelson notes, he showed little difference among them: “Weinfeld did not tailor the amount of work he was prepared to perform to the fee that he would obtain for performing it. He worked as hard as was required by the legal matter in which he was engaged without regard to the client’s ability to pay” (p.42). His practice was “not about maximizing his income but about meeting the highest of professional standards and serving his client well.” As a result, his practice was “not a lucrative one” (p.47).

I am not convinced by these chapters, however, that neither the financial nor personal sacrifices Weinfeld made in order to give his full attention to his practice, were made solely or primarily because he wanted to assimilate into mainstream U.S. culture. Nor do I think Weinfeld’s “uncanny ability to outwork any lawyer” (p.78) was necessarily due to his Jewish background or desire to assimilate. It is certainly possible that his ethnic background, religious training, and family life prior to becoming a lawyer had tremendous impacts on Weinfeld – Nelson’s biography does not, however, provide sufficient discussion of these possibilities to convincingly generalize.

More problematic than these two claims, however, is Nelson’s insistence on the existence of a dichotomy between law and politics, in the service of making his third point, about the uniqueness of Weinfeld’s jurisprudence.

In what is probably the best chapter of the book, the one discussing Weinfeld’s attempts to gain judicial office, Nelson begins to de-couple law from politics. He argues that deeply “political processes” caused Weinfeld’s two failed attempts. Though Nelson grants that “even [Weinfeld’s] good luck [with getting his trial judge appointment] had a political component . . . connected to his friendship with Herbert Lehman” (p.114) – he contends that Weinfeld “did not want judicial office to become a matter of political barter and sale. Indeed, anything political produced in him certain ambivalence” (p.121). It is clear from the narrative, and from later quotes attributed to Weinfeld, that the judge’s idea of “political” was tied to money. While he did not want money to influence the judicial appointment process, he did not see any problem in using friendship and ties of loyalty to get his position. [*189]

And, Nelson continues, “once Weinfeld was on the bench, politics ceased, as he sought wisdom from nonpolitical sources so as to make himself into an outstanding judge” (p.114). This wisdom is documented in his “commonplace book” into which he copied quotes and sources of inspiration of the creation of his judicial persona. Weinfeld relied upon Old Testament teachings and sought guidance from Chief Justices John Marshall and Charles Evans Hughes, Justices Oliver Wendell Holmes and Louis D. Brandeis, and Judges Augustus N. Hand and Learned Hand. Many of the quotes in his book focus on impartiality, as well as on the need for exhaustive work, a measure of loneliness, adequate study, and reflection. These quotes give us insight into Weinfeld’s judicial style and temperament, which are detailed in the heart of his biography, Chapter 8 (“The Patriarch: Edward Weinfeld’s Judicial Style”) and Chapter 9 (“The Liberal: Edward Weinfeld’s Judicial Values”), and which further the claim that Weinfeld’s legal style was “nonpolitical.”

Nelson maintains that the patriarchal views held by Weinfeld allowed him to be a compassionate mentor and judge, and that his liberal views caused him to be cautious about government motives vis a vis individuals. Certainly, to title chapters “The Patriarch” and “The Libera,l” while arguing that the judge was “nonpolitical,” is disingenuous. It would simply be ridiculous to insist, and Nelson does not attempt to, that patriarchy and liberalism are “nonpolitical.”

Nelson does contend, however, that Weinfeld was able to avoid politicizing his decisions because of his unique view of equality and justice:

Weinfeld did not pursue a vision of equality that divides society into classes and interest groups at war with each other. Thus, he never had to focus on the perverse question whether a judgment in a case would give a particular group or class more or less than its fair share of societal pie. This question . . . creates a sharp dichotomy in the thinking of a judge between fidelity to law and considerations of social policy. Judges who focus on the question can never decide any issue of law without favoring some social groups or interests over others . . . her [sic] vision of justice will always be controlling – it will prescribe how much of a role preexisting legal doctrines will play in the determination of cases (pp.170-171).

Weinfeld was different:

He saw only individuals, not groups and classes, in the litigants who came to his court. For him, equal justice was not about the distribution of wealth and power, but about the behavior of government towards citizens. . . . since his vision was different – it required only that he adhere consistently to the rule of law – it never created a conflict with the imperative of fidelity to law that a judge with a vision of equality as distributional justice would face. Instead, it directed fidelity to law (171).

What Weinfeld, and apparently Nelson, fail to realize, however, is that the rule of law itself is a result of power relations. In fact, “views” of the world do not “divide society into classes and interest groups at war with each other.” Rather, realities of the world – unequal distributions of wealth and power, for [*190] instance – effect that division, which is often maintained by the rule of law.

Nelson anticipates this criticism. In the final pages of the book, he notes that some scholars will take issue with his staunch reliance on a division between law and politics:

Edward Weinfeld always acted as if law existed transcendentally, so that, once the facts of a case were determined, the outcome became obvious. . . . Most scholars today doubt, however, whether any inherent moral order exists. They are inclined to reject the proposition that some master culture, from which a judge can derive standards for adjudicating cases, sets norms for all. These jaded scholars see Weinfeld’s jurisprudence as quaint and out of vogue and can only laugh at a man who strove to become a good judge by purchasing a leather-bound book and inscribing therein all the maxims he could find about judging. In order to find Weinfeld’s juridical method useful, readers must conclude that they do not yet reside in such a rigidly multicultural world, in which adjudication in accordance with norms that transcend any one culture has become impossible (227).

Though I would argue that the dichotomy between law and politics posited by Weinfeld and Nelson is a false one, I do not regard myself as a “jaded scholar” living in a “rigidly multicultural world” laughing at a “quaint” old judge. Nor do I think a reader has to denounce postmodern realizations and embrace natural law conceptions of the legal order to appreciate what Weinfeld brought to the bench.

Nelson overreaches in stating the uniqueness of the judge’s jurisprudence in order to make the book seem more relevant and useful. Though this may have been demanded by the press, it is fundamentally unwarranted. Judge Weinfeld is important and worth reading about – not because of a unique or lasting jurisprudential legacy, though there may be one. Rather, he is worthy of study for having lived a personal and professional life aptly described by his biographer as typified by dedication, dependability, a lack of competitiveness, a capacity for friendship, loyalty, a habit of caring, strategic sense, avoidance of conflict, and a desire to help others. Even those not so intimately tied to the judge as Nelson, can find much of value in that description.

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