Wednesday, June 1, 2016

This Day in Supreme Court History (Brandeis Confirmed After Epic Nomination Fight)

June 1, 1916— Louis D. Brandeis, the first Jewish nominee to the U.S. Supreme Court, was confirmed by the Senate a record 125 days—including 19 public hearings—after being chosen by a liberal Democratic President. His nomination as Associate Justice led to unseemly opposition by mainstream conservatives who only embarrassed themselves in the process.

In other words, it sounds an awful lot like what Merrick Garland faces now after being chosen by Barack Obama to fill the vacancy left by Antonin Scalia.

Brandeis broke with tradition in another sense, too. Custom called for Supreme Court nominees to remain above the fray in confirmation battles.  However, while observing the letter of this “law” by refraining from public comment (he also could not, as he was not invited to counter scurrilous accusations against him before the Senate Judiciary Committee), the nominee worked tirelessly behind the scenes to combat the wild things being said  against him.

Like Thurgood Marshall, another trail-blazer for a minority group a generation later, Brandeis would have been considered a major influence on the court even if he had never served on it. Just as Marshall conceived the incremental but relentless legal strategy that overturned school segregation in Brown v. the Board of Topeka, Kansas, Brandeis pioneered succinct reports that summarized scientific and sociological data in his so-called “Brandeis Brief.”

At the same time, the lawyer was one of the key voices at the turn of the century pointing out the dangers of inequality, opposing the vested interests of the time—insurance companies, powerful public utilities, and banks—and writing a book whose title resonates even more than ever before: Other People’s Money and How the Bankers Use It.

Brandeis became a key adviser to President Woodrow Wilson on the proper relations between capital and labor. His pronounced preference for the latter made him a number of enemies, including businessmen and lawyers who loathed and feared his highly effective, full-throated advocacy. 

Henry Lee Higginson, head of the most powerful banking house in Boston, helped bankroll the opposition, as he had done in derailing Brandeis’ appointment to Wilson’s Cabinet. Several former American Bar Association Presidents, including Elihu Root, recently Secretary of War and Secretary of State, stated, preposterously and hysterically, in a letter of protest to the Senate Judiciary Committee, that Brandeis would not be ”a fit person to be a member of the Supreme Court of the United States.” A. Lawrence Lowell, Harvard University’s anti-Semitic President, also opposed the nomination, gathering a petition with over 50 signatures with some of the legendary blueblood surnames of the Massachusetts establishment: Adams, Sargent, Gardner, Peabody, Shattuck, and Coolidge.

Perhaps the most fascinating player among the opponents was the Republican Senator from Massachusetts, Henry Cabot Lodge. He was every bit as appalled at the nomination—and maybe even more determined to strike a blow at Wilson—as the other critics of the appointment. But he found it unsafe to lead the opposition openly, the way he would only a few years later when he battled the President over the Treaty of Versailles and American entry into the League of Nations.

Lodge saw 1916 as an uncertain, even perilous election year—the first time he would undergo direct election by voters rather than by the state legislature since passage of the Seventeenth Amendment a few years before. He already—correctly—feared that he would lose the vote of Irish-Catholics in the state. He could not afford to arouse the ire of Jewish voters as well. 

Thus, Lodge decided not to invoke the custom of senatorial courtesy—the unofficial rule of refusing to confirm a presidential appointment of an official in or from a state when the appointment is opposed by a Senator from that state--and derail the confirmation process before it had fairly begun, choosing instead to work more behind the scenes.

Once on the court, Brandeis was not done dealing with anti-Semitism. Another Wilson appointee, James McReynolds, slighted him not only by refusing to shake his hand but also by shirking court photo sessions where he knew Brandeis would appear. 

But Brandeis did convert one prominent detractor while on the high court: former President William Howard Taft, who had helped other Republicans in the battle against a nominee he viewed as “a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealously, a hypocrite . . . who is utterly unscrupulous . . . a man of infinite cunning . . . of great tenacity of purpose, and, in my judgment, of much power for evil.”

But Taft’s innate amiability surfaced when the two men finally got to work together on the court when the ex-President achieved his lifelong ambition by being appointed Chief Justice by Warren Harding. Taft wrote his daughter Helen about his old rival: “I have come to like Brandeis very much indeed . . . he is a very hard worker . . . He thinks much of the Court and is anxious to have it consistent and strong, and he pulls his weight in the boat.”

For those who, unlike Taft, actually agreed with his ideology, feelings toward Brandeis went well beyond respect to something close to veneration. From Franklin Roosevelt, so often in despair over the hidebound prejudices of the majority on the court in his first term, Brandeis won the nickname “Isaiah”—a tribute to his wisdom, and his prophetic role in ameliorating the worst excesses of an industrial economy.

But, for all the justice's subsequent acclaim, the confirmation fight exposed some of the ugliest nativist strains in American life--instincts that persisted in the past two Presidential contests, in which the winner was suspected of being a Muslim and a non-citizen, and even into the current contest, in which the presumptive nominee of the Republicans broadcast claims that two primary opponents also were not citizens.

Brandeis was nominated only months after a Jewish factory owner, Leo Frank, was lynched for a murder he did not commit. Animated by anti-Semitism, many of his critics accused him, without a scrap of evidence, of not supporting the "written Constitution," a claim that bigots could use as a fig leaf for their own ill-concealed hatred.

Garland runs a fair chance of having his path to the court obstructed even more mulishly than Brandeis. Unlike 1916, the Democrats do not control the Senate and cannot bring the nomination to a vote by themselves. They cannot place faith in the majority's good will, only in its realism--if the Republicans sense their Presidential nominee is doomed to defeat, and that they'd better confirm Garland lest Obama's successor choose a far more liberal nominee.

(To gauge how, the current Senate Republicans’ protests notwithstanding, the current refusal not to accord Garland a hearing is so unprecedented in its obstruction, please see this piece from the Huffington Post by Paul Finkelman.)
(The accompanying photograph of Justice Brandeis, ca. 1916, by Harris and Ewing, comes from the Library of Congress Prints and Photographs Division.)

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