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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. Do you know why?
J. Aughenbaugh: Are you feeling learned this morning?
N. Rodgers: I love his name so much. I didn't ask you. How are you doing, Aughie?
J. Aughenbaugh: I'm fine.
N. Rodgers: I know you get to talk about a judge, so you love, I'm sure, today's episode. This is one of
our stories behind the name. We don't know what we call this series, but it's people you should know
from, basically, things you've heard from in the government. Today's person is Learned Hand, L-E-A-R-N
E-D H-A-N-D, Learned Hand, which I just think is maybe the best name ever.
J. Aughenbaugh: Learned was not even his first name. His first name was Billings. Billings Learned Hand.
N. Rodgers: People think it's Leonard, and it's not. It's Learned.
J. Aughenbaugh: Yes. Learned Hand.
N. Rodgers: What a great name.
J. Aughenbaugh: Listeners, Learned Hand, Judge Hand, is a person that, a few seasons ago, Nia and I did
a mini series about lower federal court judges who never made it to the Supreme Court. During one of
those episodes, I went ahead and said that according to a lot of scholars, if there was ever a lower
federal court judge who should have been promoted to the Supreme Court but never was, it's Learned
Hand. It resonated with both Nia and I. When Nia came up with the idea based on, as we mentioned
previously, an email exchange that I had with a current student, we both immediately were like, we
need to do a deeper dive into Learned Hand.
N. Rodgers: He deserves an episode.
J. Aughenbaugh: Again, he was a judge in the federal court system, a lawyer, and one of the reasons
why scholars like him so much was they view him as a judicial philosopher, which, again, you don't get
to say a lot about lower federal court judges. You can say that about a Supreme Court justice and their
jurisprudence.
N. Rodgers: Over the course of their career.
J. Aughenbaugh: You're right.
N. Rodgers: They're at the top of the game and blah, blah, blah. I'm not trying to be ugly, but most of
the guys in the lower court are just trying to get the business done.
J. Aughenbaugh: Yes.
N. Rodgers: They see thousands of cases a year. They want things to be fair, and they want things to be
just, but they're also in the business of getting the court's work done.
J. Aughenbaugh: They are the proverbial cog in the machine.
N. Rodgers: They're the hamster running that wheel, baby.
J. Aughenbaugh: That's right, generating all that energy. He served as a federal trial court judge in the
Southern District of New York for 15 years.
N. Rodgers: When was he born?
J. Aughenbaugh: He was born in 1872, and he died in 1961.
N. Rodgers: He lived almost 100 years. Wow.
J. Aughenbaugh: Ninety-one years. He was still serving as a Federal Appeals Court Judge for the US
Circuit Court of Appeals for the Second Circuit when he died. He had taken senior status, and he was still
occasionally hearing cases.
N. Rodgers: He was like an emeritus guy.
J. Aughenbaugh: Yes.
N. Rodgers: When we need an old guy with gravitas, we will call. Which one is the Second Circuit?
J. Aughenbaugh: That basically covers the New York area. New York, New Jersey.
N. Rodgers: He's a New England guy.
J. Aughenbaugh: Specifically, New York. He was born and raised in Albany. He majored in philosophy at
Harvard College, and then he graduated with honors from Harvard Law School
N. Rodgers: He didn't go into political science and then law school. He went to philosophy and law
school.
J. Aughenbaugh: He was a philosopher.
N. Rodgers: That explains why he becomes a judicial philosopher. He has these combined interests.
J. Aughenbaugh: Now, after he graduated from Harvard Law School, by all accounts, and I've read a
number of biographies about Learned Hand. When he got out of law school, and this adjective was used
a number of times.
N. Rodgers: Aughie's got his air quotes out.
J. Aughenbaugh: Undistinguished career as a lawyer in Albany, which is the state capital of New York
and New York City.
N. Rodgers: Undistinguished. He didn't do anything great, but he didn't do anything terrible?
J. Aughenbaugh: No.
N. Rodgers: He was met.
J. Aughenbaugh: Yes, he was met. But he was somewhat connected because of some of the folks he
went to school with at Harvard Law. At the age of 37, he was appointed as a federal district court judge
in the Southern District of New York, and that courthouse is in Manhattan.
N. Rodgers: Is that young?
J. Aughenbaugh: That's extremely young.
N. Rodgers: It sounded young, but then I thought maybe back in the day, that was not young. But no, in
1909, that's still pretty young.
J. Aughenbaugh: Even by today's standards where presidents like to appoint them young so they can go
ahead and eventually appoint them to the Supreme Court and have them serve on the Supreme Court
for 35 years, it's young. Back then, that was really young because typically, getting a federal judge
nomination was seen as a reward for a distinguished legal career.
N. Rodgers: He had neither a distinguished legal career, nor was he old.
J. Aughenbaugh: I'm going to think about it.
N. Rodgers: He didn't meet any of the criteria for a gold watch.
J. Aughenbaugh: He was only out of law school for about 12 or 13 years.
N. Rodgers: That's not very long relatively speaking.
J. Aughenbaugh: Think about, for instance, Nia and our careers. That would have been me after
teaching at Virginia Tech for 10 years, somebody going ahead and saying, "Hey, Aughie, we're going to
go ahead and promote you to be a full professor." I would've been like, What?".
N. Rodgers: Or, "Nia, we're going to appoint you as the state librarian after 10 or 15 years." I'll go, "Wait,
what? No." That's usually 25-30 years into your career. Because you're building a reputation. He's a
federal district judge in Manhattan.
J. Aughenbaugh: Almost immediately, people started taking notice, because one, he had the perfect
judicial temperament. He was even killed, open minded, and his writing. District court judges, as you just
pointed out a few moments ago, Nia, their task is to run trials.
N. Rodgers: They're grinding to that, maybe.
J. Aughenbaugh: When they do have opportunities to write opinions in response to motions filed by
lawyers, usually, their opinions are short into the point, because they got a half a dozen other active
trials going on. They don't have a lot of time to work on the craft of writing. Learned Hand, however,
quickly got a reputation as being an excellent writer.
N. Rodgers: Because keep in mind, listeners, that the supremes don't wrestle with court, one case at a
time, but they actually don't wrestle with a huge number at one time, either.
J. Aughenbaugh: That's right.
N. Rodgers: But a district court judge not only is he hearing your case this week. Your case is taking all
day. But in the evening, he's adjudicating motions for court cases that are coming up in his court next
week, the week after, the week after that, because the business of the court does not stop while a case
is going on. Everybody else still gets to file motions. They still get to do all kinds of stuff, discovery, all
that other stuff is still going on. Being a judge is a balancing act. A lot of it's paperwork and how do you
manage your time. But it sounds like he took time to write good, solid work.
J. Aughenbaugh: He did this for 15 years when President Calvin Coolidge elevated Learned Hand to the
Court of Appeals for the Second Circuit. Eventually, he became the senior circuit judge. That position, it
was later retitled as the chief judge. He did that. He was the chief judge of the Second Circuit for 12
years from 39 until 51. In 51, he took senior status, meaning that he could still hear cases, but it's a part
time basis. It's like Nia, what you described college professors, when they retire, can still come back and
teach, and they're referred to as Emeritus professor.
N. Rodgers: But they teach one class, not four. I mean, they're teaching [inaudible] very much lowered.
J. Aughenbaugh: At the time, he served on the Second Circuit Court of Appeals. A lot of people thought
it was the finest appeals court in the United States. They had a lot of really smart people on that court.
Learned Hand as senior circuit judge got a lot of positive attention in part because of how he ran the
court, but also, again, because of his writing. He had a lot of friends who wanted him to be nominated to
the Supreme Court, but circumstances and eventually his age worked against him.
N. Rodgers: He's 81 by the time he goes into semi-retirement, which is back then when you would have
put somebody on the Supreme Court, except 81 was too old.
J. Aughenbaugh: It was too old. In addition to his writings, he did a couple other things that really drew
attention to him as an Appeals Court judge. One, in 1944, during World War II, he gave a short address
in Central Park that appealed for tolerance, which was extremely unusual at that time, because many
Americans were vehement in their opposition to Japan. All Japanese Americans, Italian Americans, and
German Americans.
N. Rodgers: He's like, "Those people are not the people we're fighting."
J. Aughenbaugh: That's right. Then in 1952, a collection of his papers and addresses were collected and
published as the Spirit of Liberty. Yes.
N. Rodgers: That's the McCarthy era.
J. Aughenbaugh: Very good.
N. Rodgers: He's out there saying, "Oh, no. We need to treat people with respect, and we need to
defend civil rights and civil liberties. This guy McCarthy's a nut job." He probably didn't say that, but that
would keep you off the court.
J. Aughenbaugh: Yes.
N. Rodgers: Because that would be politically drawing a line that so what do you love commies? Are you
a pinko? Is that what you are, Learned Hand? I can hear that being said by some of the senators who
would have had to approve him and not wanting to cross McCarthy because nobody wanted to cross
McCarthy because he was a nut job. We're going to get to him in a later episode.
J. Aughenbaugh: Here's the other fascinating thing about Learned Hand, and this is probably one of the
main reasons why he never got nominated to serve on the Supreme Court. On one hand, Nia, as you just
described, he was politically a progressive. He believed in civil liberties. He believed in free speech. He
believed that people should receive the due process of law. On the other hand, he was very much a
restraintist as a judge. He thought that federal courts should defer to the people's elected
representatives.
N. Rodgers: He's not a fan of judicial activism then?
J. Aughenbaugh: No, he's not.
N. Rodgers: Earl Warren must have driven him crazy.
J. Aughenbaugh: When Earl Warren takes control of the Supreme Court in 1953. Learned Hand was
already in senior status. Learned Hand made it very clear with some of the cases that he did hear on
senior status, but also in communication with a whole bunch of his well-connected friends in the legal
community that he was not a fan of the Warren Court's civil rights rulings because he thought that
Learned Hand was much like Felix Frankfurter and Robert Jackson. He was very circumspect about the
unelected branch of the federal government issuing broad rulings that would overturn the will of the
people. He thought democracy worked best when the elected representatives of the people were
responsive to the people.
N. Rodgers: I don't disagree with that.
J. Aughenbaugh: Think about it. On one hand, the rabid Cold War hawks, this government is populated
by commies, hated him. Those who thought that United States should have a broad-based response in
World War II, they were very skeptical of Learned Hand. On the other hand, liberals who increasingly
were turning to the federal courts to get policy relief were like, "What's up with this restraint stuff?
We're coming to you guys for relief, and you're independent, so why aren't you giving us some love?"
Learned Hand was just like, "Because in a democracy, the people's government officials should be
accountable to them, and we're not accountable."
N. Rodgers: I see his argument. Everybody hated him?
J. Aughenbaugh: Not everybody hated him, but think about what it requires to get nominated. You need
to find a president who's willing.
N. Rodgers: Then you need to have enough of the Senate that's willing. Was he broadly popular like with
regular humans?
J. Aughenbaugh: Not so much. Many of them didn't know. But he, according to one study, as recently as
2004, was the most quoted federal court judge by legal scholars in the United States Supreme Court.
Even after he died in 61 for a 40-year period, he was the most quoted Federal Court judge by both legal
scholars and Supreme Court justices.
N. Rodgers: It says that just speaks to the craft of his writing.
J. Aughenbaugh: Oh, my goodness yeah. If you're into reading legal opinions, and I know some of our
listeners right now are really colonized.
N. Rodgers: Who in the world is into leading? Well, that'd Aughie.
J. Aughenbaugh: Yes. I know some of you all are rolling your eyes right now, but if you develop a taste
for reading legal opinions, Learned Hand's are a joy to read. Short punchy sentences. References to
philosophers. They're of the quality of Robert Jackson. Scalia in his dissents on the current court, Elena
Kagan. I really enjoy reading Elena Kagan's opinions. Even if I disagree with the substance, they're just a
joy to read.
N. Rodgers: You have a quote here. Can I read it?
J. Aughenbaugh: Go ahead.
N. Rodgers: This is a quote, "Combination of toleration and imagination that to me is the epitome of all
good government." That's a sentence I can get behind.
J. Aughenbaugh: In the toleration part, I really always appreciate it by Learned Hand. Things were not
always in his mind, one way or the other. That part of the job of any government official was to see
where the middle ground was so that society could move forward, while at the same time, allowing the
public to figure out what they wanted their government to do next. That always resonates with me.
N. Rodgers: I like that at least from the way that you've described him, that he really did believe that
Congress needed to be doing its job.
J. Aughenbaugh: Yes.
N. Rodgers: That going to the courts because Congress wasn't doing its job is not the way that should
work. That what should happen is that you should use elections to make Congress do its job, not, "Oh,
well, if you're not going to do it, then I'll go find a different branch that will." That's not what we mean
when we talk about democracy in its purest. When we talk about democracy, we talk about these
people should be representing what you and I want. If they aren't, then we should boot them and get
somebody who will represent what you and I want.
J. Aughenbaugh: Ordinary politics. Working through your elected officials, persuading your opponents is
hard work. According to Learned Hand, that's the work of democracy.
N. Rodgers: The result will be more long lasting, I would think, because everybody's got skin in the game
as it were.
J. Aughenbaugh: Yes. That's right. It's really difficult for your elected official who has struck a bargain
with the opposition party to go ahead and turn around and say, "I don't like that legislation when they
were involved with the making of that legislation."
N. Rodgers: They made promises. All of those things, that's all part of the work of democracy. I like that.
The work of democracy that you said. It's interesting because given how deft he was, he could have had
more power, probably.
J. Aughenbaugh: At least two of the biographies I read indicated that two different presidential
administrations, Roosevelt and Truman, reached out to him to see if he would be willing to step down as
a federal judge and come to work for their presidential administrations. Learned Hand was just like, "No,
I found my niche."
N. Rodgers: How do you like to be AG? He's like, "No. I'm good."
J. Aughenbaugh: Roosevelt actively recruited him for a number of wartime positions, and Learned Hand
was like, "No, I found my colleague. I'm a judge." Again, that takes a certain amount of self-awareness
and humility. It's like when students sometimes say to me, Nia, wouldn't you love to be a Supreme Court
justice? I'm like, "No." Do you know why? In part because I think I found my calling as a teacher, but
also, I'm not entirely sure I would be good as a judge and sometimes that self-awareness is very, very
important, particularly as you mature and get older.
N. Rodgers: I wouldn't want to be on the Supreme Court. Although, I would love to be in the room with
the Supreme Court sometime.
J. Aughenbaugh: During their conferences?
N. Rodgers: When they're talking about certain stuff, I would love to be a little fly on the wall. I just
don't think that I would ever have the intellectual chops to run with most of the people who get to the
Supreme Court. I can do hold my own with a couple of those people, but I couldn't hold my own with
most of those people. Depending on who you're unfortunate enough to serve with, if you serve with
somebody like Scalia, they're going to walk your dog every time or this guy.
J. Aughenbaugh: Imagine being in the conferences on the Rehnquist Court, where you had Rehnquist,
you had Scalia, you had Ruth Bader Ginsburg, Sandra Day O'Connor. Come on now.
N. Rodgers: Is there good Marshall still in that mix?
J. Aughenbaugh: In the early part.
N. Rodgers: Do you want to tangle with any of those people? No, thanks.
J. Aughenbaugh: No.
N. Rodgers: I'm good. I'll just sit over here quietly and open the door. I'll be the guy that opens the door.
That's my job.
J. Aughenbaugh: I'm going to be like, "Can I go to the restroom now and not come back?"
N. Rodgers: Exactly. I got to go make a phone call. It's going to take three or four years. See you.
J. Aughenbaugh: I'm pretty sure you all aren't going to miss me, so carry on. As the British would say,
"Carry on."
N. Rodgers: Exactly.
J. Aughenbaugh: Anyways, thank you very much.
N. Rodgers: Oh, my goodness. Thank you, Aughie. Learned Hand, he's a great character. Would you
recommend people picking up like a book of his writings? The one that you mentioned is The Spirit of
Liberty.
J. Aughenbaugh: The Spirit of Liberty. Again, for those of you, we're recording this in 2026, which is the
250th anniversary of the Declaration of Independence. If you're into that mood of trying to understand
the values and the ideals of the American experiment, of course, read the Declaration of Independence.
Read Dr. King's I Have a Dream speech, which is rooted in part on the Declaration of Independence. But
I would also encourage you if you want to take even a deeper dive, pull up, get a copy of Learned Hand's
The Spirit of Liberty. It's a collection of his speeches and essays, where quite obviously this is a person
who thought deeply about this stuff. I think it will be very rewarding for you.
N. Rodgers: Cool. Thank you, Aughie.
J. Aughenbaugh: Thank you, Nia.