Talk About a Bruising Confirmation


By Jenna Weissman Joselit

Published February 03, 2006, issue of February 03, 2006.

If you happened to find the recent Supreme Court confirmation hearings somewhat contentious, you might be surprised to learn that they had nothing on the furor that, 90 years ago in January 1916, greeted President Wilson’s nomination of Louis Dembitz Brandeis to the highest court in the land. The president’s selection of the Boston lawyer took virtually everyone by surprise, occasioning fierce and at times unremittingly hostile criticism. So much so that the confirmation hearings, an exercise in mudslinging of the most brutish sort, went on for more than four long months. This “case has aroused more comment and caused more controversy than any other Supreme Court nomination,” The New York Times commented as the hearings drew to a close.

Though Brandeis eventually took his place on the bench and was sworn in amid great fanfare in June of that year (the press gleefully reported that a standing-room-only audience greeted the jurist on his first day on the job), it happened only after he had undergone a lengthy and often unpleasant trial of his own, or what one eyewitness euphemistically called a show of “strange inhospitality.” Much of the attendant furor was centered on Brandeis’s being an American Jew — the very first American Jew, in fact, to be appointed to the United States Supreme Court.

Publicly lauding Brandeis for his “impartial, impersonal, orderly and constructive mind, his rare analytical powers, his deep human sympathy” and the way he was “imbued, to the very heart, with our American ideals of justice and equality of opportunity,” Wilson, nothing if not steadfast in his support, insisted that his candidate was just the right man for the job.

Others, like the editors of the popular magazine Outlook, agreed. To their way of thinking, even his Jewishness was cause for celebration. “The fact that Mr. Brandeis is a Jew and very earnest in his Jewish faith is a reason for, rather than against, his confirmation. It is desirable that the Supreme Court bench should contain representatives of different social views and companionships.”

But such words of praise fell on a lot of deaf ears, at least at first. Business leaders, objecting to what they took to be Brandeis’s uncommon sympathy for the working class, labeled him “anti-trust,” or, worse still, a radical. Other opponents, including 55 of Boston’s leading lights, among them Harvard University President A. Lawrence Lowell, questioned whether the Kentucky native had the requisite “judicial temperament and capacity” to sit on the bench. Former American president and future Chief Justice William Howard Taft, adding his voice to the chorus, made it abundantly clear that, from where he sat, Brandeis was not a “fit person to be a member of the Supreme Court.”

If Taft, et al., preferred to speak obliquely, even evasively, of Brandeis’s shortcomings, some of his other detractors came out with it directly, insisting that it wasn’t just Brandeis’s reformist politics or his affinity for the underdog that got in the way as much as his Jewish origins. There is about Brandeis a “certain hard and unsympathetic quality which is largely racial,” explained Arthur Hill, a Boston lawyer who strongly opposed the nomination. Brandeis has “none of that spirit of playing the game with courtesy and good nature that is part of the standard of the Anglo-Saxon.” And then, warming to his topic, Hill added for good measure: “It is not for nothing that in the Old Testament there isn’t a word from beginning to end of admiration for a gallant enemy.”

The openness with which Brandeis’s Old Testamental Jewishness was bandied about and made a public issue proved greatly disturbing. Although the nominee wrote to his brother that the hearings seemed to be a “fit method of clearing the atmosphere,” Jewish communal leaders thought otherwise. To them, the anti-Jewish animus that dogged the confirmation proceedings only underscored the fragile base on which American Jewish life rested. If someone on the order of the eminently respectable Louis D. Brandeis — edu-

cated abroad, top of his class at Harvard Law School, celebrated lawyer — could be deemed insufficiently American, what hope was there for the rest of us? “The opposition to Mr. Brandeis has been conducted with passion and prejudice, the investigation into his character and his record as a public man has been so minute and so searching as to betray the real motives of those who are fighting his nomination,” the American Hebrew hotly observed. “No other member of the Supreme Court of the United States has ever been scrutinized so thoroughly.”

Despite the manifold hurdles placed in his way, Brandeis was eventually confirmed (the vote, 47-22, was strictly along party lines). On June 6, 1916, he was sworn in as an associate justice, a proud day not only for him and the members of his immediate family but for the members of his extended family, as well: the American Jewish community. Shuttling between relief and pride, its representatives expressed great pleasure at seeing one of their own rise so high. Rabbi Stephen S. Wise, for his part, labeled Brandeis’s confirmation a “festal moment of Jewish life.” Still other Jewish leaders were quick to hail it as a “real triumph for American Israel and for true Americanism,” as well as a “most effective blow to religious prejudice and other reactionary tendencies” in American life. The Forward agreed, characterizing Brandeis’s confirmation both as a victory over antisemitism and as a step forward in the evolution of a better, purer and more progressive form of politics.

Having “dealt the powers of darkness and religious prejudice a staggering blow,” as yet another observer put it at the time, Brandeis’s appointment to the bench, it was widely hoped, would usher in a new era of political civility. Alas, history has proved otherwise.

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