Prof. Felix Frankfurter Declines Appointment to Massachusetts Supreme Court

On the eve of the meeting of the Governor’s Council to act upon his appointment of Professor Felix Frankfurter of Harvard University to the Massachusetts Supreme Court Bench, Governor Joseph B. Ely last night made public the announcement that Professor Frankfurter had declined to accept the post.

Professor Frankfurter, said Governor Ely, had declined the post from a sense of duty to his obligations at Harvard University.

The action of Professor Frankfurter brings to an unexpected close the controversy which has been aroused by his appointment. While leading judicial authorities such as former Supreme Court Justice Oliver Wendell Holmes and Supreme Court Justice Louis D. Brandeis, headed the list of those who urged the appointment of Professor Frankfurter, an opposition had been formed on the ground that Professor Frankfurter had radical leanings.

It was expected that at today’s meeting of the Governor’s Council, the appointment would be confirmed despite a measure of opposition, by a vote of 6 to 2.

Governor Ely in making public Professor Frankfurter’s declination made public in part a letter which he had received from him. The letter declared:

FRANKFURTER LETTER

“Your Excellency’s nomination of me for the supreme judicial court has presented the most difficult decision of my professional life. The choice could not be easy. You offered me an opportunity which comes to very few lawyers. to join the bench which can draw upon the spirit of Shaw and Holmes for the creative tasks of judicial administration in our day is a call of high honor and profound importance to the well-being of the Common-wealth….

“But I have other responsibilities to the law which, after much anguish of mind, I feel I ought not to sever now. As against the opportunities for immediate achievement on the bench, the long term effects of legal education make their claim. The grave problems already upon us and those looming on the horizon require as never before a courageous and learned bar. The future direction of bar and bench will be determined by the quality of our law schools. This work must go forward and I cannot bring myself to believe that I should prematurely abandon my share in it, however great and honorable the opportunity you offer me. I should have less confidence in the rightness of this position had not the admonition of colelagues made me feel that to leave this school now would be a kind of desertion.”

Governor Ely was informed of Professor Frankfurter’s declining the appointment last week but had sought during the past week to persuade him to change his mind.

In his statement announcing the declination, Governor Ely said:

“I am very sorry to announce that Professor Felix Frankfurter cannot accept appointment to the Supreme Judicial Court. While I respect his reasons, I do not agree with them. It may be said that I should not have sent in the name without positive assurance of acceptance, but from the fact that so many able men solicited his appointment, his chances of acceptance appeared very good and in any event, I recognized that there was no chance of his acceptance unless the name was presented and further the benefit to the bench from his confirmation was worth the chance.”

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