THE VIRGINIAN-PILOT  
              Copyright (c) 1994, Landmark Communications, Inc.

DATE: Sunday, September 11, 1994             TAG: 9409090618
SECTION: COMMENTARY               PAGE: J2   EDITION: FINAL 
TYPE: Book Review
SOURCE: BY FREDERIC NICHOLSON 
                                             LENGTH: Medium:   86 lines

LEARNED HAND

LEARNED HAND

The Man and the Judge

GERALD GUNTHER

Alfred A. Knopf. 785 pp. $35.

Learned Hand's name would appear on any informed list of America's greatest judges - with John Marshall, Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo. But among them, Hand is unique: He never made it to the U.S. Supreme Court.

Hand was a federal judge for more than 50 years, starting in 1909 with the District Court in Manhattan - after an uninspired career in private practice - and continuing in 1924 with his appointment to the Court of Appeals for the Second Circuit. There were two near-misses for the Supreme Court: the first in 1930 when President Hoover was dissuaded from appointing Hand by Chief Justice William Howard Taft, who never forgave Hand's support for Theodore Roosevelt's 1912 candidacy for president, when the split in the Republican Party led to then-President Taft's defeat by Woodrow Wilson; and the second in 1942 when Franklin D. Roosevelt, looking for longevity, rejected Hand, then 70, to appoint 48-year-old Wiley Rutledge.

Ironically, Hand was to continue serving as a judge for more than 10 years after Rutledge's death in 1948. He died in 1961.

Gerald Gunther, a law professor at Stanford, has written a brilliant and comprehensive biography of Learned Hand, for whom he clerked in the early 1950s. Learned Hand: The Man and the Judge was more than 20 years in the making, and it benefits from the enormous volume of materials - including unpublished memoranda and letters - at Gunther's disposal.

Gunther tells the story of an unusually complex man of towering intellect, charm and wit, and a wide range of interests and friendships, but, paradoxically, a man who lived with a sense of insecurity difficult to reconcile with his enormous ability. Tactfully, but candidly, Gunther deals with Hand's marriage to a woman he adored to the point of indulging her close friendship of more than 20 years with another man. But the focus of the book is primarily on Hand's public personality, his role in U.S. history - and on his commanding superiority as a judge, which Gunther illuminates through clear and nontechnical expositions of Hand's major opinions.

Gunther gives particular attention to Hand's view of the judiciary's role in construing the Constitution. Given his distrust of absolutes, his awareness that today's verities may be tomorrow's superstitions and, finally, his abiding belief in the democratic process, Hand favored a judicial stance of restraint, intervening only in extreme cases where no reasonable constitutional basis could be found for a legislative act.

Hand served neither a liberal nor a conservative agenda.

For more than 30 years, starting in 1905 with Lochner v. New York, which held unconstitutional a maximum-hour-of-work law, the Supreme Court recurringly invalidated social legislation on the grounds that it denied ``liberty of contract,'' a phrase nowhere in the Constitution but deemed by the court to be intrinsic to the due process clause of the 14th Amendment. Hand strongly objected. He charged that the court had assumed the role of a ``super legislature,'' that the judges were creating phony principles of law to support their subjective values.

In the late 1930s the Lochner reasoning was overruled. Its reliance on ``liberty of contract'' to defeat social legislation now seems like a voice out of another age. Subsequently, however, during the Warren Court years, those who opposed Lochner would contend that there is a more permissive standard for judicial intervention in the protection of personal, as opposed to economic, rights. Hand consistently rejected this; he found there to be no warrant for a different standard depending on the nature of the right in question.

Hand's uncompromising view of judicial restraint was never fully accepted by the courts. But it does focus the right question: To what extent should judges rely on their own moral convictions in testing legislation against the Constitution? That question will always be with us, together with Learned Hand's views in answering it.

Hand's 2,000-plus opinions on every conceivable subject are models of judicial craftsmanship. Ordinary cases attained significance when written by him, and the Supreme Court often cited Hand opinions for authoritative guidance. He was, for sound reasons, called the ``the 10th member of the Supreme Court.'' MEMO: Frederic Nicholson is a lawyer specializing in federal taxation. He

lives in Norfolk. by CNB