McCloy and Acheson before the bar
The Cravath firm on Wall Street was a sweatshop, and John McCloy relished it. Told that a complete reshuffling of the Denver & Rio Grande Railroad was due to be signed the next morning and that he and another associate would have to spend the night drawing up the reams of contracts, he literally rubbed his hands in glee. Nothing pleased McCloy more than having important people counting on him. Donald Swatland, his fellow associate, ordered out for two steak dinners. McCloy called the restaurant back and asked to have a dozen fat cigars included. Deftly flicking ashes into the corner wastebasket, they polished off the documents before dawn. After showering and changing into fresh shirts, they arrived precisely at the appointed hour for the signing ceremony.
The rush by American bankers and businessmen to invest in Europe after World War I set off a scramble by major Wall Street law firms vying for foreign business. The legal world, like the financial one, had always been part of the backbone of the American Establishment. After the Great War, it offered bright and ambitious young men, such as McCloy and Acheson, entrée into that world and more: it gave them the chance to handle international cases, to avoid the insularity infecting the rest of the country, and to become part of the coterie that would eventually spearhead America’s wider involvement in world affairs.
At the forefront of this international work was the firm of Cravath, Henderson & de Gersdorff (now Cravath, Swaine & Moore), which John McCloy joined as an associate in 1925 after a brief period doing railway work at another Wall Street firm. The shop, whose roots stretched back to 1819, was being transformed by Paul Cravath into the first of the modern Wall Street law firms. He recruited as associates the brightest law graduates from Harvard, Yale, and Columbia, carefully trained them, and after six or seven years of grueling work invited the best of them into the partnership. This produced what is now common at major Wall Street firms: a sweatshop atmosphere in which associates worked eye-blurring hours scrambling to make partner. It also created a meritocracy, where the tenacity of a young man like McCloy was valued more than family status.
Through his work at Cravath, McCloy became friends with Lovett and Harriman. In the ten years after he joined the Cravath firm, McCloy helped paper more than $77 million worth of bond issues for the Union Pacific. Later he joined Lovett and Harriman on the railroad’s board of directors. McCloy even became the paper president of a railroad, albeit briefly. In 1926, he and Swatland worked on a purchase plan for the Chicago, Milwaukee and St. Paul Railroad. For technical reasons, they had to organize a temporary holding company in Delaware. McCloy was designated the president. The next day, just as the holding company was being dissolved, the newspapers published his youthful, shock-haired photograph as America’s youngest railway president.
More importantly, McCloy dealt with Lovett and Harriman through Cravath’s international work. In 1925, for example, the firm collaborated with Brown Brothers & Company on the issuance of $30 million of bonds for the kingdom of Norway. That year the firm also dealt with some of the mineral concessions being offered by the Soviet Union; McCloy worked closely with Harriman, who was considering an investment in a British firm that had acquired some Soviet mining rights. “The friendships and associations I made, and the work habits I developed, were of lasting value,” McCloy recalled later. “I knew I could hold my own with anyone. I knew I could accomplish any task, that I could be the type of person others depended on, rather than the type who had to depend on others.”
When he first moved to New York, McCloy took a room with a family in Forest Hills so that he could frequent the West Side Tennis Club. In the winter, he was a regular at the indoor tennis courts of the Heights Casino in Brooklyn, where he once won a set from the legendary Bill Tilden. As a fisherman, he was equally tenacious. On his summer excursions with Lew Douglas, McCloy would wander off alone for miles upstream, sometimes searching all day for the perfect fly-casting spot. Once, when a friend gave him a new casting rod, McCloy was so anxious to try it out that he took it to the roof of his apartment building and began casting onto the street below. When the line became tangled on a pedestrian, McCloy and the friend quickly cut the line and ducked behind the cornice.
Although he led a relatively frugal bachelor’s life, McCloy gradually began to blossom socially. Opera became a genuine love, and he enjoyed dressing in full white tie and tails for a date at the Met followed by chowder at the Oyster Bar in Grand Central Station. Eventually, he was invited to join the University, Grolier, Anglers, and Broad Street clubs, which—though not quite as tony as some of those frequented by the Brown Brothers Harriman crowd—gave him access to the elite world he had long admired. He also became a regular at the Long Island and Westchester County house parties frequented by Harriman, Lovett, and their friends.
Lovett, whose father was the Long Island neighbor of Paul Cravath, soon became a close friend. What impressed McCloy most was Lovett’s studious yet easygoing manner and social grace. Harriman he considered to be far less clever and a bit too ambitious. “Most of the people who worked with Averell on Wall Street felt he did not pull his weight, and that he was not too bright,” McCloy later recalled. “He used to subsidize politicians and people like Harry Hopkins so that he would have a line into power. But he was very tight in other ways with his personal money, particularly when it came to charity. He was good-looking, affluent, and very aloof back then, which made him quite a lady’s man. I once attended one of those lavish polo parties and felt out of my milieu. He had an air about him, one that Lovett never sought to affect.”
McCloy’s early years at Cravath came during a period of rapid growth for the firm. When he joined in 1925, it had forty-one lawyers; when he became a partner in 1929, there were fifty-nine. Much of the expansion came from international business. Before World War I, investment capital tended to flow into the U.S. from Europe. The Cravath firm had handled much of this business ever since founding partner Richard Blatchford was retained as counsel for the Bank of England in 1826. After the armistice, when capital started to flow in the other direction, American bankers, with encouragement from Washington, eagerly sought foreign investments that would help finance the rebuilding of Europe. Paul Cravath, an early bankroller of the Council on Foreign Relations, assured that his firm handled much of this legal work.
Soon after McCloy joined Cravath, the firm participated with J. P. Morgan in a mammoth $110 million loan to the German government. In the ensuing years, McCloy spent much of his time traveling in Europe. For almost a full year he lived in Italy, where the Cravath firm was advising the government. “What took place after World War I was the forerunner of the Marshall Plan,” McCloy later said. “But back then the rehabilitation of Europe was done in a private capacity. Practically every merchant bank and Wall Street firm, from J. P. Morgan and Brown Brothers on down, was over there picking up loans. We were all very European in our outlook, and our goal was to see it rebuilt.”
As would happen to other leaders of the American Establishment, McCloy became entranced by Jean Monnet, the brilliant French brandy heir, economist, and statesman who later became the éminence grise to the Wise Men of American foreign policy. Monnet was then an international financier with Blair & Company in New York and Paris, and McCloy became his lawyer. Together they worked on issuing securities for European municipalities and the merger of Blair into Transamerica Corporation. Long nights were spent discussing the irrepressible Frenchman’s evolving vision of a unified European economy.
One day in 1929, McCloy was in Arizona on business. When he boarded the train for the return home, he unexpectedly ran into his old friend and classmate Lew Douglas, by then an Arizona congressman, and his wife, Peggy. They rode together all the way to New York, where Peggy’s sister, Ellen, the one who used to accompany Peggy on visits to Amherst, met them at Pennsylvania Station. The daughters of Frederick Zinsser and Emma Scharman Zinsser, Peggy and Ellen had been raised in a household where German was the first language. The Zinssers were a large family, both in the U.S. and in Germany (one cousin married Konrad Adenauer), and had been involved in various chemical businesses in the U.S. since before the Civil War. In 1897, Frederick Zinsser founded his own company in Hastings-on-Hudson, where he eventually moved his family.
Ellen had what was known in her family as Fingerspitzengefühl, a sensitive touch for dealing with people and situations. She knew how to handle the stolid yet driven young lawyer; for McCloy’s part, he decided she was exactly what he wanted in a wife. He called her within a week, and courted her for more than a year. Yet he approached marriage in a typically judicious manner, discussing its pros and cons, and the effect it would have on his career, until it became something of a joke among his friends. Finally his hand was forced by his firm: he was chosen to head Cravath’s Paris office and was ordered to set sail on April 25, 1930. That morning he married Ellen and they sailed together.
Soon after he arrived in Paris, McCloy got a call from his New York office that would change the course of his career. He was told to travel to The Hague, where one of the firm’s clients, Bethlehem Steel, was party to a complex case before the Mixed Claims Commission. It involved a mysterious explosion in July of 1916 at a munitions depot on a small spit of land near Jersey City known as “Black Tom.” Bethlehem Steel, which had manufactured the munitions (scheduled for shipment to Russia), and the other plaintiffs sought to prove that the Germans had arranged the sabotage and to collect damages from German funds held in the U.S. McCloy sat in on the hearings and reported back to the firm that the suit would be lost because of lack of evidence. When his prediction proved true, he asked to be assigned to the case to begin work on getting a rehearing.
It turned out to be a ten-year assignment, replete with spooky midnight meetings and evidence worthy of a pulp thriller. One clue came in the form of a message written in invisible ink (actually lemon juice) on the pages of a 1917 issue of Blue Book magazine. The message was in the form of numbers that referred to pages in the magazine where pinpricks in the text spelled out words. They seemed to show that Fred Herrmann, a known German saboteur, had arranged the explosion with Paul Hilken, an American acting as a German agent. McCloy tracked down Hilken to a rooming house in Baltimore. He had disappeared, but an old suitcase in the attic contained check stubs showing his connection to German agents.
The Claims Commission again rejected the case in 1932, but McCloy refused to give up. He helped push through a law in Congress giving the U.S. attorneys power to subpoena witnesses. Along with Ellen, he crisscrossed Europe searching for more evidence. In Ireland they met with the fiery labor leader James Larkin, who had worked with German agents during the war. In Germany McCloy tracked down a furtive Russian agent named Alexander Nelidoff, who claimed to have incriminating documents. At one point McCloy reached for Nelidoff’s pen, only to have the Russian grab it back and explain it was actually a canister of poison gas. McCloy followed Nelidoff to Berlin, where he got the documents, but research by British intelligence showed them to be frauds, probably planted by German agents seeking to discredit the American case. McCloy also met with Hermann Goering, Rudolf Hess, and other top Nazi leaders (who invited him to their box at the 1936 Olympic Games) to see if a settlement could be negotiated. But the potential agreement fell through when neither the claimants nor the Germans showed a willingness to honor it.
By 1935, McCloy had moved to Washington as the de facto commander of the large battery of lawyers and officials handling the case for the various plaintiffs. He showed an enormous ability for getting people to put aside their own rivalries, brusquely assigning tasks and coordinating the assemblage of mountains of evidence. An important break came when one of the lawyers discovered a handwritten postscript on a letter from an official of a German shipping company that linked German agents to the explosion.
After three more years on the case, McCloy retreated to the Ausable Club, a private community in the Adirondacks where he was a member, to dictate new briefs. When they were presented in 1939, the German representative on the Claims Commission walked out. Nevertheless, the commission rendered a judgment: it awarded approximately $21 million plus interest to the American claimants. After two more years of legal wrangling, Bethlehem Steel and the other companies received their checks.
Such perseverance was typical of McCloy, who was by then becoming a legend on Wall Street. In addition, the case established him as a deft coordinator, one who could get people to accomplish a task with a minimum of problems. Prominent lawyers at the time, unlike some of their counterparts today, made it a top priority to keep their cases and clients out of court, to settle issues rather than resort to confrontation and litigation. McCloy was a master at seeking accommodation and negotiating agreements; rarely did he or his clients appear in court.
All of this was done in a manner that avoided making McCloy any enemies; indeed, the history of the Cravath firm notes that “no Cravath partner has had greater personal popularity in the firm than McCloy.” He showed an ability to delegate (knowing that oral arguments were not his forte, he hired former Attorney General William Mitchell for the job) and also to shoulder great burdens when necessary (he worked virtually around the clock in the summer of 1938 drafting the major briefs).
Particularly impressed was a man who had been peripherally involved in the case and who had a cabin near McCloy’s at the Ausable Club: Henry Lewis Stimson. The once and future Secretary of War knew that the day was fast approaching when men with a knowledge of German espionage, and men who could be trusted to get things done, would be in great demand.
Like McCloy, Dean Acheson spent the two decades after leaving Harvard Law School making a national and international reputation as a worldly lawyer. But though Acheson forged many Wall Street connections, he decided from the start that Washington was the place to be.
On a golden March day in 1921, he and a small group of friends stood in front of a house on S Street in Northwest Washington and watched as a crippled, depleted man was helped through the door. Most of the town had flocked to see the inaugural parade of Warren Harding, featuring the world’s largest broom topped by an American flag. But Acheson was more interested in paying his respects to a bowed and weary Woodrow Wilson, visionary of new freedom and international order.
Acheson, through his father’s sermons and Frankfurter’s teachings, had become a conscientious liberal, albeit one who would have felt slightly more at home in nineteenth-century England (with Lord Shaftesbury and the Factory Acts) than in twentieth-century America. There was still within him that tension between elitism and democratic romanticism exhibited in his Groton essay on American snobbery; even as he defended the struggles of the workingman, he chafed at the vulgarity of the masses. In addition, although he supported the League of Nations and labor unions, he disdained the Utopian panaceas and socialist visions promulgated by the more woolly-minded reformers within the liberal movement.
In short, Acheson was a suitable protégé of the consummate liberal whom Felix Frankfurter sent him to serve: Supreme Court Justice Louis Brandeis, that imposing admixture of proper Bostonian, courtly Kentuckian, and Anglicized Jew. “I don’t think the Justice puts the slightest faith in mass salvation through universal Plumb Plans,” Acheson wrote in 1920, responding to Frankfurter’s request for his opinion of Brandeis’s philosophy. “People haven’t the intelligence for that sort of thing. They have only the intelligence to operate in small personal groups which deal with the things with which they are intimately acquainted.” Brandeis’s creed combined liberalism with individualism, Acheson later wrote, and was concerned not with “the Holy Grail” of a Utopian society but with removing the obstacles placed by cumbersome institutions “in the way of the individual search for fulfillment.” In future years, Acheson would denigrate grandiose schemes such as the United Nations by using Brandeis’s derogatory phrase, “Plumb Plans.”
Acheson’s duties included helping host the Brandeis “at homes” attended by the great thinkers and socialites of Washington, such as the aging progressive Senator Robert La Follette and the crusading social critic Norman Hapgood, and serving as confidant during late-night talks at the justice’s office while Mrs. Brandeis was recuperating from a nervous breakdown. “What is the latest dirt?” Brandeis would ask conspiratorially as the Harding Administration scandals unfolded. Acheson recorded Brandeis’s pronouncements in his journal. “Isn’t there any way out?” a worried Acheson asked during the bitter coal strike in 1919. “Yes,” replied the patient Brandeis, “and the men will find it, if only their money holds out and the west freezes for a couple of weeks.”
More importantly, Acheson helped write Brandeis’s opinions, the two of them swapping notes back and forth as Acheson worked at his typewriter and the justice wrote in longhand. Brandeis was a stern taskmaster. “Please remember that your function is to correct my errors, not to introduce errors of your own,” he thundered after discovering two faulty citations in the draft of an opinion rejecting an argument by Elihu Root, who was challenging the nation’s Prohibition laws. As Acheson noted in Morning and Noon: “Justice Brandeis’s standard for our work was perfection as a norm, to be better on special occasions.”
Acheson became a meticulous craftsman, approaching both the law and logic with the same precision as his master. Brandeis taught him to be both a pragmatist and an empiricist, to be guided above all by the facts of a situation. Yet he also learned that the law could not be divorced from the ideals of social justice. In a draft for what turned out to be an unpublished opinion supporting the United Mine Workers in a case against the Coronado Coal Company, Acheson began: “The facts present a picture of a primitive struggle clothed in the forms of industry.” Brandeis approved of the sentiments, but revised the draft to make the point just as powerfully with what Acheson later called “unadorned, uncolored statement of fact.”
At the core of Brandeis’s rigorous analytical approach was the avoidance of a mushy moral relativism. Like Acheson, the justice believed that laws necessarily had to reflect the shifting attitudes of society. Yet both men believed, with a firmness that sometimes produced a conflict with their pragmatic instincts, that certain transcendent moral principles remained immutable. Acheson once took Professor Manley Hudson of Harvard to see Brandeis. Hudson asserted that moral principles were simply generalizations to be made from the prevailing mores of a time. “The eruption was even more spectacular than I anticipated,” Acheson later wrote. “The Justice wrapped the mantle of Isaiah around himself, dropped his voice a full octave, jutted his eyebrows forward in a most menacing way, and began to prophesy. Morality was truth; and truth had been revealed to man in an unbroken, continuous, and consistent flow by the great prophets and poets of all time.”
Neither Brandeis nor his own mentor on the court, Oliver Wendell Holmes, wore the nobility of their principles lightly; theirs was a weighty code borne with stoic grandeur. Acheson, likewise, came to believe that a personal code of conduct and the courage of one’s convictions provided a person’s life with its ultimate purpose. It was a worthy ideal, although it took men of great bearing to pull it off without appearing haughty. In addition, Holmes and Brandeis reinforced Acheson’s undue pride in not suffering fools lightly. As Frankfurter later noted: “Holmes possessed a caustic intellectual stringency which when passed on to younger people was not always admirable.”
Yet there were worthy lessons to be learned from Holmes’s and Brandeis’s fealty to their convictions, ones that would serve Acheson well when his own code was assailed in later years. When the Red-hunting fury fomented in 1920 by Attorney General A. Mitchell Palmer was in full force, Holmes and Brandeis stood in lonely dissent to the majority opinions being handed down by a conservative court. One case involved the harsh prison sentence meted out to a Brooklyn man who had distributed Marxist leaflets from his tenement. The other justices pressured Brandeis and Holmes to join in a unanimous opinion upholding the verdict. Acheson’s classmate Stanley Morrison, who was clerking for Holmes, described to him how the other justices even enlisted Mrs. Holmes when they came to make their case. Yet neither Holmes nor Brandeis would budge. “The best test of truth,” Holmes wrote in his ringing dissent, “is the power of the thought to get itself accepted in the competition of the market.”
Acheson’s ambition and pragmatism did make him somewhat cautious in the face of Palmerism, despite his deep revulsion toward it. One evening during the 1919 coal strike, he was invited to the Georgetown house of a friend, the liberal journalist William Hard. There he met three union officials from West Virginia who spoke of the miners’ plight. The West Virginia government, they said, was rigged against them, and they wished to secede from the state. Acheson’s liberal sympathies did not extend this far, nor did he want to risk being snared in one of Palmer’s crusades. Clearly the meeting was no place for a Supreme Court clerk, he decided. He pointed out that the plan was doomed to failure, and perhaps a bloody showdown. “While they digested this somber prediction, I said that I must be off, and left feeling far from a hero, but less like a conspirator,” he recalled.
“Nevertheless,” he added, “the essential role of labor unions in the scheme of our times was to me no longer a purely intellectual conclusion. I had passed the first test of a liberal; it was a conviction.” Like both his father and Brandeis, Acheson had a sympathy for the working class that was bestowed from a consciously upper-class vantage, an outlook that edged him toward allegiance to the Democratic Party. Years later, after the International Ladies Garment Workers Union had become one of his clients, its flamboyant president, David Dubinsky, introduced Acheson to his union convention as “not only brilliant as a lawyer, well known as a progressive, but one who could understand the heart of our labor movement.”
His pro-union sentiments, however, never took precedence over his concern for social stability. A breakdown of order, he felt, was an irrational abandonment of common interests, and there was nothing Acheson valued more than rationality. In a letter to Frankfurter in 1921, Acheson discussed the question of whether unions should be “free to organize and strike and picket and throw bricks and generally bust up the other fellow’s business.” His conclusion: “It may be that the best way is just to bust the other fellow; but when your method would apply to busting any order which possibly could be conceived you must expect to run afoul of the legal tradition.”
Brandeis took the unusual step of asking Acheson to stay on as his clerk for a second year, noting sardonically that it would be improper to unloose him on the legal world with his shocking state of ignorance. When it finally came time to foray into less exalted realms, Acheson became one of nine lawyers in the fledgling Washington firm of Covington & Burling, soon to become Covington, Burling & Rublee.
J. Harry Covington was a prominent Wilsonian Democrat who served as a Maryland congressman and as Chief Justice of the District of Columbia Supreme Court. Edward “Ned” Burling, a poor boy from Iowa who had gone on to Harvard College and then the law school, had been the general counsel of the Shipping Board, handling contracts with young Averell Harriman among others. George Rublee, who was to become one of Acheson’s closest friends, was in the first class to graduate from Groton, and his athletic and academic prowess, chiseled on the walls of the school, was still legendary when Acheson and Harriman were there. After Harvard College and law school, Rublee alternated between being a professional success and an international social dilettante. He joined Brandeis in the crusade to establish the Federal Trade Commission; with Jean Monnet, he worked on the Allied Maritime Transport Council during World War I.
The firm they formed in Washington was designed to take advantage of the international commerce that boomed at the end of World War I. Just as Wall Street was then discovering the new world of opportunity, the concurrent expansion of American trade and federal regulation in the 1920s transformed the sleepy swamp of Washington into a center of international legal work. By far the firm’s biggest case was the one that Acheson was hired to work on: representing the Norwegian government in its $16 million claim against the U.S. for Norwegian property (mainly ships on order) seized during the war. The case was to be heard by the Permanent Court of Arbitration sitting at the Peace Palace in The Hague.
Acheson was fascinated both by the grand stage on which he found himself and by the notion that international order could be based on abstract principles of law. Yet his training with Brandeis taught him that the facts, and not the theory, should sway the case. Returning to the stacks of the Library of Congress, where he had researched his drafts for Brandeis, Acheson compiled an impressive array of precedents showing the U.S. to be liable for the full value of the contracts it had expropriated.
Faced with the impressive brief of the case for Norway, lawyers representing the U.S. countered by challenging the legitimacy of the contracts, arguing that they had been “tainted” because most were “purely speculative” agreements negotiated by a shady Norwegian, Christoffer Hannevig. Acheson and Burling sailed to The Hague in the summer of 1922 to argue the case. Although it seemed to be going well, the “taint of Hannevig” argument was muddying the issue. The challenge faced by Acheson, Burling, and the other lawyers for Norway was to force the U.S. hand, to get the U.S. to admit that the claims were valid and that only their value was in dispute. Acheson was delegated to make the argument.
As he climbed the elevated pulpit in the Peace Palace, the young lawyer decided to gamble by attacking head on the American suggestion that the claims were made in bad faith. “Some very severe things were said about these claims,” he noted, “things which look to us as though they related to the validity of the claims and the good faith of the purchasers, and, perhaps, in some cases they tended to reflect somewhat on the Kingdom of Norway in presenting these claims.” He challenged the U.S. agents to clear up this implication: “We felt that some statement was due us. We felt that some statement was due the Kingdom of Norway.”
In effect, he was demanding that his own government apologize, a demand that the presiding judge noted with surprise and which Acheson confirmed. If the U.S. side decided to respond by vigorously pursuing its contention that the contracts were invalid, the whole case might be lost. Burling scribbled a note and handed it up to Acheson at the lectern. “SHUT UP,” it said in a large, emphatic scrawl. But the gamble had been made, and it paid off. The U.S. side was unwilling to hinge its case on the make-or-break argument that the claims were not legitimate. The contracts were valid, conceded the U.S. lawyer, only their value was in question. With that, the Hannevig issue was put into perspective. The court ended up awarding the claimants $12 million.
Upon his return, Acheson settled down to the life of a prosperous corporate lawyer. Years later, Jean Monnet talked of the role played by lawyers in foreign policy. Expressing his surprise at how the law was such an important training ground for statesmanship in the U.S., he speculated that it was because attorneys were trained to deal with complex situations by finding both precedents and innovative pragmatic approaches for dealing with them. Indeed, two of Monnet’s closest friends, Acheson and McCloy, came from such a tradition.
Kennan was of a contrary view; he often complained that legalistic captains of foreign policy were continually drafting complex treaties that were never invoked and bore little resemblance to the realities of power. Lovett was also of the school that legal training produced a cadre of bickering wordsmiths who were inept at getting things done. As for Acheson, he occasionally cast a jaundiced eye on lawyers in government, admitting that they were better suited to taking directions from clients than making policy decisions of their own (he attributed Cordell Hull’s maddening fecklessness to his years as a judicious attorney); yet Acheson also felt that the best statesmen were those who had the attributes of great lawyers, in particular an ability to remain emotionally detached from a case and appreciate the facts on both sides.
One case that brought Acheson into contact with Harriman and Lovett involved Richard Whitney, a Groton-Porcellian man who became president of the New York Stock Exchange and was later convicted of securities fraud. Harriman was among those who innocently lent Whitney money (fifty thousand dollars in Harriman’s case) when he was secretly trying to cover the funds he had embezzled and lost. Acheson represented the interests of the Stock Exchange in the case. He also took on a case at the behest of his friend Lew Douglas, the Arizona congressman and in-law of McCloy, in which he opposed the building of the Boulder Dam. His argument that the Colorado River was not navigable, and thus could not be altered with federal funds, was dismissed by the Supreme Court on the grounds that a handful of adventurers had in fact navigated its course. Brandeis sent down from the bench a consolation note to his protégé: “Felicitations on an excellent argument.”
Acheson, in fact, lost every one of the first fifteen cases that he argued before the Supreme Court. Yet much to the envy of the other young members of his firm, who resented his talent for self-aggrandizement and impressing his powerful elders, Acheson’s reputation as a brilliant legal conceptualizer tended to rise with each loss. Even senior partner George Rublee took to describing the younger Grotonian, in words William James applied to George Santayana, as “the shiniest fish that ever came out of the sea.”
“He always maintained a cool detachment,” one associate later remembered. “Some lawyers get so steamed up they think their client is the Lord God Almighty fifteen minutes after he has stepped into the office. Acheson always saw the client as representing a soluble problem, and nothing more.” He once wrote a complex brief that prompted an impressed client to accost him at the Oak Bar of the Plaza in New York. “Your brief is a work of art, a masterpiece of legal thinking,” said the client, pumping Acheson’s hand. With the bemused tolerance he bestowed upon the overly enthusiastic, Acheson replied: “Not a bad brief. It almost convinced me.” As another colleague put it: “Dean always had a haughty attitude about clients, as he did about most everything, which was evident whenever he would arch his eyebrows or twitch his mustache.”
The mustache. Throughout his life, when friends endeavored to describe him, the subject of Acheson’s reddish-gray bushy mustache would come up, as if it were a reflection of what lay behind it. While he was a young lawyer, it was somewhat untamed and overgrown, seeming to mask a remnant of schoolboy insecurity, a touch of defiance. It was tailored not by wax but by Acheson’s rough tugging while he thought, making it bristle upward. As he matured, so did the mustache. It came to symbolize his urbane elegance. “Though it once seemed about to climb his cheeks, like a vine seeking sunlight, it now is comparatively self-controlled and at peace with itself, quietly aware of its responsibilities,” wrote The New Yorker magazine in a 1949 profile. “While still giving off gay hints of the unpredictable, it is the adornment of a man who has conquered not only himself but his mustache.”
Acheson took justifiable pride in his ability to cut through a morass of complexities and facts to reach the kernel of a problem. Yet he had neither Harriman’s probing curiosity nor Kennan’s philosophical depth. “Dean took pleasure in finding the answer to riddles,” said a former law partner. “The nature of the riddles did not concern him. He was not a man to wander into the penumbra of thought.”
Acheson’s success at Covington & Burling (of which he was made a partner in 1926) allowed him to live in the manner he fancied. He and Alice bought, for thirteen thousand dollars, a red brick house on P Street in Georgetown, built in 1843, to which they steadily added rooms over the years. Also during the 1920s, he bought a rambling 1795-vintage farmhouse called Harewood, seventeen miles away in Sandy Spring, Maryland. There he and Alice tended to the horses (including Brandeis’s aging horse, named Sir Gareth), gardening, and the raising of their three children.
Perhaps it was his abundance of charm, his polished manner and wit, his agile mind and charming conversational abilities that caused Acheson to shine in the somewhat provincial backwater of Washington. Whatever the reason, he was one of those men who seem larger than life, who exude a compelling aura. Even as a young lawyer, he became the focal point for a wide variety of friends and admirers. Despite all of the social pretenses and latent anti-Semitism that pervaded his social class, Acheson’s two greatest personal influences, Frankfurter and Brandeis, were both Jewish, and his friends ranged from Norman Hapgood to Sinclair Lewis, James Warburg to Archibald MacLeish. He was at the center of a wide variety of clubs: the Penguin, a self-serious liberal discussion group; the Royal Bengal Bicycle, a vivacious social organization; the Alfalfa, named after the grass whose roots go deepest in search of drink. The small dinner parties that he and Alice hosted were known for their sparkle. When his Yale class celebrated its tenth reunion, the increasingly famous young lawyer was the one chosen as speaker.
Acheson, like most of his friends, was very much a Europhile as well as an Anglophile. He considered it madness to accompany loans to Europe with chauvinistic trade policies and harsh tariffs that made the debts difficult to repay. This belief in the orderly international flow of capital and of liberal reciprocal trade agreements was the most important factor in Acheson’s disdain for the Republican Party.
Shortly before the 1928 election, he registered as a Democrat, persuaded not only by his anti-tariff and pro-union sentiments but also by the vibrancy offered by Al Smith. “For almost eight years the country, in a trance, seemed to have been following a hearse,” he wrote. “Now at the touch of this prince in a brown derby, with his East Side accent, gay humanity and common sense, came an awakening.” Yet his party affiliation was hardly firm: at the urging of Rublee, Acheson went up to New Jersey for a few weeks in 1930 to work in the Senate campaign of Republican Dwight Morrow. One great contribution made by Acheson, a confirmed drinker of martinis and Scotch, was convincing the candidate to make the repeal of Prohibition a key pledge of his campaign.
With Frank Page and Heywood Broun, Acheson journeyed to Chicago for the 1932 Democratic Convention that nominated Franklin Roosevelt. He found the conclave a “mad and not a little degrading spectacle,” but he enjoyed being invited into the inner sanctum, flowing with strong drink, that the sergeant at arms ran for his cronies in the party. Upon his return to Maryland, Acheson helped run the local Democratic campaign, where his distaste for glad-handing and electoral politicking was confirmed. Most of his time was spent writing pamphlets and position papers. To his great delight, he was asked to the White House shortly after FDR’s inauguration to help draft a proposed legislative program, drawing him closer to the flypaper of government service.
The post Acheson wanted from his fellow Grotonian was that of Solicitor General, which Frankfurter had declined in order to teach for a year at Oxford. But when FDR suggested Acheson to the new Attorney General, Homer Cummings of Connecticut, the reaction was violently negative. Acheson later surmised it was because his father, Bishop Acheson, had refused to bless a marriage sought by the divorced Cummings. Friends of Cummings said the rejection was due more to Acheson’s hauteur.
A dejected Acheson subsequently embarked on a motor trip to Canada with Alice. When he returned, two old friends who had been top Treasury officials under Hoover and were helping with the transition asked him to lunch with the new Secretary, William Woodin. “I was hardly back in my office before the operator announced Secretary Woodin calling,” Acheson later wrote. “Would I become Under Secretary?”
The Baltimore Sun, a fan of Acheson’s, listed among his qualifications, “aloofness from contaminating contact with the subject matter of his new post.” Some of the critics, however, thought him too contaminated by virtue of his Establishment connections. “Mr. Acheson and Mr. Woodin are going to be just as much the agents of the Morgan house as anybody we could possibly put in the Treasury,” railed Michigan Senator James Couzens, an anti-Wall Street Republican, in the course of the hearings.
Acheson did not last long. Roosevelt’s more liberal economists, led by Henry Morgenthau, Jr., then head of the Farm Credit Administration, persuaded the President that the Depression could be alleviated by raising prices. That meant devaluing the dollar, which in turn meant allowing the price of gold to rise above the price ($20.67 an ounce) that Congress had set by law. A more conservative faction, some of whom saw the unpegging of the dollar from gold as “the end of Western civilization,” was led by Acheson’s close friends Budget Director Lew Douglas and Wall Street financier James Warburg. For Acheson, who was Acting Secretary because of Woodin’s illness, the question was less an ideological one than a legal one. He drafted an opinion telling Roosevelt what the law forbade him to do; Roosevelt responded, to Acheson’s annoyance, that a lawyer’s job was to find ways to circumvent such laws.
When Roosevelt decided to order a legal opinion from Attorney General Cummings saying that the Reconstruction Finance Corporation could buy gold at higher than the fixed price, Acheson paid a call on Brandeis to solicit his advice. “If I wanted a legal opinion, I would prefer to get it from you than Homer Cummings” was the justice’s Delphic pronouncement. To Acheson, that meant he should stand his ground. He did. When Roosevelt summoned him to the Oval Office, Acheson said that he was being asked to do something “contrary to the law.” Asked FDR: “Don’t you take my word for it that it will be all right?” Acheson lost his temper, replying that he was being asked to sign illegal documents. “That will do!” thundered Roosevelt.
Acheson wrote a short and graceful letter of resignation, thanking the President for his “many marks of kindness.” Roosevelt did not respond, and Acheson learned from journalists that the President had accepted his resignation and chosen Morgenthau as his replacement. Nor was Acheson invited to Morgenthau’s induction ceremony in the Oval Office, but he went anyway. Roosevelt, barely acknowledging Acheson’s presence, gave a speech to the small gathering in praise of loyalty. There was a silence when he finished. Seeking to dispel the tension, Acheson walked up to the President, offered his hand, and thanked him for the opportunity to be of service. Roosevelt pulled him closer. “I’ve been awfully angry with you,” he whispered, “but you are a real sportsman.” Years later, when another official submitted a bristling letter of resignation, Roosevelt gave it to an assistant and said: “Return it to him and tell him to ask Dean Acheson how a gentleman resigns.”
Acheson’s friend Harriman would never have gone to the mat over a matter of principle with a President; he would likely have merely sidled away from the conflict to work on problems that he would be left to solve on his own. Lovett would probably have worked out some compromise, making any mountainous dispute seem suddenly like a small bump. So too would have John McCloy, the loyal workhorse; like Bohlen, he would have been willing to go along. Kennan would no doubt have agonized about resignation only to become lost in philosophical broodings. But Dean Acheson had a code, a fledgling one perhaps, but one he was stubbornly proud of.
In a peculiar way, Acheson seemed to have relished the fight. It was a chance to affirm his honor. Yet the stance he took was hardly typical: he was, at heart, a man of action, one who believed in the use of presidential power to accomplish social goals. Like most liberals, he objected to the legal obstacles that the Supreme Court was putting in front of the New Deal. In a 1936 speech to the Maryland Bar Association, he criticized the obstructionism of the court and defended the Administration’s right to take forceful action to remedy the Depression. A few years later, in a similar situation, Acheson worked with Harriman and McCloy to devise a legal maneuver to circumvent Congress’s Neutrality Act and arrange for Britain to use mothballed American ships. When he served Harry Truman, he came to understand better the need for loyalty and deference. “I did not have enough consideration for the problems of the President,” he later conceded of the gold-standard crisis.
Part of Acheson’s problem was with Roosevelt personally. “I respected his ability to rule, but I did not like him,” he later told a seminar at Princeton. The patronizing informality with which FDR treated other officials, using nicknames and summoning them to early-morning bedside meetings, rankled the proper Acheson. “He condescended,” Acheson wrote of FDR in Morning and Noon. “To accord the President the greatest deference and respect should be a gratification to any citizen. It is not gratifying to receive the easy greeting which milord might give a promising stable boy and pull one’s forelock in return.”
An avid reader of English biography and history, particularly of the Victorian era, Acheson glorified that period as one when the Royal Navy and London merchant banks had enforced a Pax Britannica by ruling the high seas and extending capital for development around the world. The Great War had started, he believed, because a breakdown in that order led to the rise of dictators who responded to economic limitations with expansionist policies; it could happen again if America did not step into the vacuum left by Britain’s decline. In the midst of the battle over the value of gold, Acheson led another unsuccessful effort to persuade FDR to loosen the terms for the repayment of the British war debt.
The League of Nations, he came to feel, was one of those “universal Plumb Plans” of which Brandeis had been so leery. The foundation for world order, Acheson was convinced, depended upon a free flow of American capital and a pragmatic military outlook. As he wrote in a letter to his son, David, at Groton: “The important thing in thinking about international affairs is not to make moral judgments or apportion blame but to understand the nature of the forces at work as the foundation for thinking about what, if anything, can be done.”
Regarding the Soviet Union, Acheson was similarly pragmatic. Although they had no love for the Bolshevik system, Acheson and Frankfurter were strong proponents of recognition, often engaging in long arguments with others on the subject. “Refusing to recognize a situation makes it a difficult one to work with,” Acheson noted to a friend.
Upon returning to Covington & Burling after his short stint in government, Acheson appeared to some as a potential leader of the Democratic conservative opposition to the New Deal. Among his major clients was a utility company seeking to enjoin the Public Works Administration from proceeding with rural electrification. He was considered a “sound” man, and was selected as a trustee of the Brookings Institution (then quite conservative) and of the Yale Corporation (edging out Senator Robert Taft for the honor). Yet, as he noted later, “not all my efforts were devoted to representing the forces of reaction in opposition to the children of light.” He served as a forceful advocate for the International Ladies Garment Workers Union in its battles to organize factories and defend minimum wage laws. “I understand your difficulty in classifying me as a pro- or anti-New Dealer,” he wrote a friend. “I couldn’t classify myself. It is much more satisfying to me to consider specific proposals from the point of view of whether they are practicable methods of dealing with immediate problems.”
When Lew Douglas and James Warburg, his allies in the gold fight, approached him about joining a Democrats for Landon movement in 1936, Acheson replied that nothing could be so foolish. In fact, he decided to go public with his support for Roosevelt’s re-election in a letter to the Baltimore Sun (whose editors were so surprised to receive it that they called him for verification). What bothered him the most about the Republican campaign were the Red-scare tactics being used. “It seems to me utterly fantastic to suggest that Communism is in any manner involved in this campaign,” he wrote. “It serves only to arouse a spirit of bigotry which we have experienced before and which always results in violation of constitutional guarantees of liberty and makes impossible sane consideration of public questions.”
Years later Acheson would find himself the subject of Red-scare rhetoric. In 1939, it was his friend Frankfurter who was on the hot seat. The professor had been appointed by FDR to the Supreme Court and retained Acheson as a counselor for the confirmation hearings featuring Senator Patrick McCarran. Frankfurter refused to be intimidated by the Nevada senator or to be drawn into a discussion of Marxism. “Senator,” Frankfurter replied at one point, “I do not believe you are more attached to the theories and practices of Americanism than I am. I rest my answer on that statement.”
The room began to stir. Senator Matthew Neely of West Virginia motioned Acheson for a private word. Frankfurter, the senator warned, was falling into a trap. He would have to make some accommodation; he would have to answer a question on Communism directly. Acheson the pragmatist agreed. He returned to the witness table to beseech Frankfurter to be sensible.
When Neely asked his friendly question—“Are you a Communist, or have you ever been one?”—Frankfurter played the game.
“I have never been and I am not now,” replied Frankfurter.
“By that do you mean that you have never been enrolled as a member of the Communist Party?” the senator added.
“I mean much more than that,” said Frankfurter. “I mean that I have never been enrolled, and have never been qualified to be enrolled, because that does not represent my view of life nor my view of government.”
As the crowd erupted in cheers, Acheson breathed a sigh of relief. The Red-baiters in Congress had been staved off. Principles and pragmatism had come to a suitable balance. In order to make sure that the newsreel cameras recorded the scene properly, Acheson had Neely and Frankfurter repeat it a few more times for their benefit.
“Let’s see the President before going home,” a jubilant Frankfurter suggested afterward. Acheson demurred, but Frankfurter persisted. They were waved past the White House gates and ushered through a back door of the President’s office, where Roosevelt greeted Acheson as he would an old friend. Several weeks later, the President called Acheson at home on a Sunday afternoon. “Hello, Judge!” the President proclaimed.
“I’m afraid there’s some mistake,” he replied. “This is Dean Acheson.”
“Not at all,” FDR said. “Judge Acheson of the Court of Appeals for the District of Columbia. Your nomination goes to the Senate in the morning.”
“But I don’t want to be a judge,” protested Acheson. “Would you?”
“No,” said Roosevelt, “but I’m not going to be one and you are. That’s the great difference.”
Acheson eventually convinced FDR that he was too young to be sentenced to sedentary confinement on a court bench. “I would rather talk to damn fools than listen to them,” Acheson argued. He also dissuaded the President from making him an Assistant Attorney General for civil rights, despite the obvious appeal of that farsighted new notion.
Yet Acheson was growing bored with his legal work; he yearned for a return to the great stage of power. “The heady experience of being in on big political decisions was like getting used to French cuisine,” Frankfurter noted. “Once Dean had dined on such rare meat, it was painful to return to the hardtack of the law.” As Europe edged closer to war, and his beloved England and his dreams of a world order seemed threatened, that yearning to be back in the thick of the struggle began to grow ever greater.