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The Brandeis confirmation a century later

June 2016 marks the 100th anniversary of the confirmation of Louis D. Brandeis to the U.S. Supreme Court. The first Jew to serve on the court and one of the most respected and revered justices in our history, his opinions on free speech, due process, and fundamental liberty are still widely quoted and cited. Before going on the Court his representation of poor people, exploited workers, women’s rights organizations, and the public interest, helped make America a more humane and just nation, while forcing banks, railroads, public utilities and other large business to be more fair to the public. In 1916, he was known throughout the nation as “The People’s Lawyer.” He was the forerunner of other social activist lawyers who were later appointed to the Court, such as Thurgood Marshall and Ruth Bader Ginsburg.

His confirmation took four months, the longest in history. Brandeis’s ethnicity was an issue for politicians and anti-Semitism swirled around the process. But in the end the Brandeis nomination was a historical turning point, definitively undermining anti-Semitism in American political culture, even though that toxic animus still lingers in some quarters of American society.

The Brandeis nomination came in an election year, and at a time when it seemed likely that President Woodrow Wilson might not be reelected. Since the reelection of Grant in 1872, only one other sitting president, William McKinley, had been reelected for a second term. Moreover, other than Wilson, the only Democrat elected since the Civil War had been Grover Cleveland. In 1912 Wilson won only 6.3 million votes against a divided Republican Party, with Teddy Roosevelt and William Howard Taft winning more than 7.6 million votes. Meanwhile, the Socialist Party candidate Eugene V. Debs won 900,000 votes. Facing a united Republican Party, it seemed likely that Wilson might lose the election. Significantly, despite the upcoming election, no Republicans argued that the Supreme Court seat should have been left vacant until the next president took office, even though it was an election year.

Republicans did oppose Brandeis on policy grounds. He was a reformer, an activist lawyer, and a supporter of the rights of workers, immigrants, and women. He opposed monopolies and unregulated economic activity by large industries, public utilities, banks, and other financial institutions including brokerage houses. These were reasons enough for many Republicans to oppose him. While no one in the Senate explicitly raised the issue of Brandeis’s religious and ethnic background, anti-Semitism nevertheless swirled around the opposition to his nomination.

The nomination came at a high point of anti-Semitism in the United States. A year before Brandeis’s nomination the Supreme Court refused, by a 7-2 vote, to overturn the murder conviction of Leo Frank, a Jewish businessman, whose trial had taken place in a circus-like atmosphere of Ku Klux Klan inspired anti-Semitic hysteria. The unfairness of the trial, as well as Frank’s innocence, was obvious to everyone but the authorities in Georgia and a majority of the U.S. Supreme Court. Shortly after the Court rejected his appeal, a mob dragged Frank from a jail and lynched him. Georgia authorities never charged anyone with this murder.

During this period the popular media often portrayed Jews with ugly language and racist cartoons. Private clubs regularly refused to admit Jews, elite colleges and universities placed quotas on Jewish enrollment, and cultural anti-Semitism was acceptable among American elites.  This elite bigotry dovetailed with the Populist Party’s anti-Semitic rhetoric. William Jennings Bryan’s Bible-thumping fundamentalist presidential campaigns in 1896, 1900, and 1908 were tinged with loathing of Jews and Catholics. At the same time a resurgent Ku Klux Klan focused much of its hated Jews and Catholics as well as blacks. In this atmosphere, President Wilson nominated Brandeis.

Brandeis’s victory in Muller v. Oregon (1908) was immediately seen as a milestone for workers’ rights and women’s rights. Indeed the feminist leaders of the National Consumers League, Florence Kelley and Josephine Goldmark, had recruited Brandeis for the case and were thrilled with the outcome. They considered it a great victory for women and workers alike. As with his other reform cases, Brandeis insisted that he receive no fee for taking the case.

His brief in Muller, which stressed social, health, and economic issues involving poor working conditions, set the stage for future progressive litigation, and was a model for briefs in subsequent labor, civil rights, and progressive cases. That style brief is still known as a “Brandeis Brief.” Significantly, in his opinion of the Court Justice David J. Brewer did something the Court almost never did: he singled out a lawyer’s brief for special praise: “It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation, as well as expressions of opinion from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis for the defendant in error is a very copious collection of all these matters, an epitome of which is found in the margin.” He then quoted and cited extensively from the Brief in a footnote.

As a public interest lawyer, Brandies had exposed dishonesty, corruption, and scandal in the Taft administration that helped lead to Taft’s defeat for reelection in 1912. Needless to say, the ex-president loathed the crusading lawyer from Boston. The title of one of Brandeis’s books, Other Peoples Money and How the Bankers Use It (1914) illustrates why Wall Street despised Brandeis. While the opposition to Brandeis was ideological, economically self-serving, and political, anti-Semitism was a major tool of those trying to derail his confirmation.

One Boston stockbroker urged the Senate to defeat the nomination because Brandeis was a “slimy fellow” tainted by “his smoothness and intrigue, together with his Jewish instinct.” Such blatant racism and anti-Semitism was considered respectable by his wealthy, elite opponents. Some lawyers (many of whom had lost to Brandeis in court) asserted, without evidence, that he was unethical. At the same time, those who had faced him in Court also complained that he always aggressively represented his clients, and did not go along to get along. In other words, for some Brandeis was “unethical” precisely because he followed his ethical obligation to, in the words of the modern code of professional conduct, to be a “zealous advocate on behalf of a client.”

Abbott Lawrence Lowell, the president of Harvard, was more refined in his opposition to Brandeis, but his arguments still smacked of bigotry and anti-Semitism. Using coded language, he claimed Brandeis was “unscrupulous,” and lacked “judicial temperament and capacity,” but when asked for evidence of this, Lowell admitted he had none. Brandeis was a graduate of Lowell’s law school, and he been a popular teacher there. But this did not stop Harvard’s president from defaming him. Significantly, all but one of the faculty at Harvard Law School publicly endorsed his nomination.

Opponents argued Brandeis was money grubbing (wink, wink, Jewish) while also questioning his extensive pro bono practice. The opponents never explained how Brandeis could be motivated by money but also take so many cases for free. Typical of anti-Semitic thought, Brandeis’s critics claimed he was simultaneously both greedy and a socialist. The Massachusetts Republican, Senator Henry Cabot Lodge complained that Wilson, hoping to carry the Jewish vote in New York, Massachusetts, and elsewhere, had only nominated Brandeis because he was Jewish, implying he was not qualified. Certainly, the growing power of Jewish voters may explain why some Republican senators, including one each from New York, Illinois, Pennsylvania, and Massachusetts, did not show up for the confirmation vote. As conservative Republicans they did not want to vote for “The People’s Lawyer,” but they dared not vote against the Jewish nominee.

While his opponents claimed Brandeis’s “Jewish” traits and characteristics made him unfit for the office, in the end their arguments fell short. The Senate ignored the massive racist and anti-Semitic attacks on Brandeis, ultimately confirming him by a vote of more than two to one, mostly along party lines. Forty-four Democrats and three progressive Republicans voted for confirmation, and twenty-one Republicans and one Democrat voted no. Even in the face of Ku Klux Klan inspired anti-Semitism, not a single southern Democrat voted against Brandeis, although a handful did show up for the vote.

This vote reflected the power of Wilson. In 1910 there were 60 Republicans in the Senate. In 1912 Democrats took the Senate and the White House. This was in part due to the scandals of the Taft administration that Brandeis had helped expose. In the off year election, with Wilson in office, Democrats picked up five more Senate seats. Democrats were not about to betray their president – the first of their party in two decades – who had helped them take the Senate. However, seven southern Democrats, including “Pitchfork” Ben Tillman of South Carolina, ducked the confirmation vote. They may have mistrusted Brandeis’s liberalism and were perhaps uncomfortable supporting a Jewish nominee. But all the other southerners voted for Brandeis. This vote suggests the complexity of Southern politics. The first two Jewish U.S. senators had been from the South, 3,000 Jewish soldiers served in the Confederate army, Jefferson Davis had a Jew (Judah P. Benjamin) in his Confederate cabinet nearly a half century before Teddy Roosevelt put a Jew (Oscar Strauss) in a U.S. cabinet. Brandeis, who was born and raised in Kentucky, passed muster as had many other southern Jews.

The Brandeis confirmation did not end anti-Semitism in the US, especially in corporate board rooms, private clubs, elite universities, and among right wing groups. The 1924 immigration restrictions, passed by a Republican Congress and signed by a Republican president, kept hundreds of thousands of Jews out of the country, but these restrictions also affected Italians, Poles, Greeks, Turks, and other eastern and southern Europeans, Middle Easterners, and Asians. A decade later, these quotas would of course have a profound effect on Jews trying to escape Nazism on the eve of World War II.

Despite lingering private prejudice, the Brandeis confirmation signaled the beginning of the end to the use of anti-Semitism by political leaders to block the appointment of Jews to positions of great importance in American political life. In the 1930s both a Republican (Hoover) and a Democrat (FDR) sent Jews to the Supreme Court and Jews played an increasingly active role at the highest levels of American politics. Even ex-President Taft, who had ranted that Brandeis was “a socialist,” “unscrupulous,” “cunning,” and “evil,” came to value Brandeis as a colleague when Taft became Chief Justice in 1921.

In the face of public bigotry, the Senate rejected the legitimacy of anti-Semitism when considering a Supreme Court nominee in 1916. Once on the Court, no one seemed to be concerned that he remained a leading figure in the Zionist Organization of America and the World Zionist Congress. Indeed, the new Justice’s powerful opinions and obvious wisdom made the earlier arguments about his temperament and ethnic traits seem absurd. He was often allied with Justice Oliver Wendell Holmes, Jr., the embodiment of America’s traditional Protestant aristocracy. Brandeis himself became one of our greatest and most influential justices. Many of his opinions – on liberty, free speech, and fundamental fairness – are now accepted and honored.

Most importantly, since the Brandeis fight, no nominees to the Court have been so vigorously (or openly) attacked on the basis of ethnicity or religion, and at the national level anti-Semitism is generally no longer part of America’s political vocabulary. Thus, for all Americans the 100th anniversary of Justice Brandeis’ confirmation to the Supreme Court is a milestone worth remembering. The confirmation is also worth celebrating as an example of Congress fairly and honestly considering a Supreme Court nominee, even in an election year.

Featured Image Credit: “The Supreme Court of the United States. Washington, D.C.” by Kjetil Ree. CC BY-SA 3.0 via Wikimedia Commons.

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