On January 28, 1916, Woodrow Wilson nominated Louis D. Brandeis to the Supreme Court, thus sparking an exceedingly nasty confirmation fight. Wilson had to know it was coming -- the year before he had supported Brandeis for membership in the Cosmos Club, over opposition complaining of Brandeis “that he is a reformer for revenue only; that he is a Jew; and that he would be a disturbing element in any club of gentlemen.”
Brandeis qualified as a reformer, no doubt: he had come to national attention by putting social-scientific data -- largely assembled by his sister-in-law and employer in the case, Josephine Goldmark -- before the court in Muller v. Oregon. The tactic gave the Court a way to get around the constipated reading of the Fourteenth Amendment it had been using since it started gutting Reconstruction -- if the facts now known differed from the assumptions underlying previous rulings, one could overturn them. It is the tactic that underlies Brown v. Board, among other cases.
Moreover Brandeis had written Other People’s Money, which cast doubt on the social utility of very rich people, among other sins, and advised Wilson during the 1912 campaign.
That he was a Jew went without saying,1 and Brandeis himself thought that rather lay behind opposition to him. Certainly some of the complaints against him -- that, as the New York Times said, he was “a contender” and “a striver"; that in the words of the Boston Globe he was “given to extravagance in utterance” and was “a ‘self-advertiser’” -- sound an awful lot like the kind of complaints that supposedly nice people often make about Jews. Take those two together -- reformer plus Jew -- and you get “disturbing element in any club of gentlemen.”
As a friend warned Brandeis, “By your zeal for the common good you have made many enemies.... You will be accused of everything, from grand larceny to a non-judicial temperament. Fake telegrams will be sent to Washington in the name of persons who never sent them or signed them. Forged signatures will be entered on petitions of protest. I hope you have a friend on the sub-committee...”
Spurious charges were indeed brought; they amounted to nothing. Fifty-five Bostonians, including the president of Harvard, A. Lawrence Lowell, signed a petition accusing Brandeis of lacking the “judicial temperament.” It was the kind of campaign that could get people muttering that if those guys didn’t like Brandeis, maybe he was no good.
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One of Brandeis’s allies drew up a chart pointing out that the fifty-five anti-Brandeisians all belonged to the same clubs, worked in the same State Street banks, and lived in the same neighborhoods. As Walter Lippmann wrote, “All the smoke of ill-repute which had been gathered around Mr. Brandeis originated in the group psychology of these gentlemen and because they are men of influence it seemed ominous. But it is smoke without any fire except that of personal or group antagonism.”
To Harvard’s credit, Charles Eliot, its great former president, wrote that to reject Brandeis would be “a grave misfortune for the whole legal profession, the Court, all American business, and the country.” And another Bostonian, the lawyer -- and Republican, and Brandeis-supporter -- Arthur Hill, wrote that Brandeis was indeed unpopular among Boston lawyers: but that “It would be difficult, if not impossible, for a radical to be generally popular with Boston lawyers, or escape severe adverse criticisms of his motives and conduct.”
Brandeis was approved on a party-line vote and went on to a distinguished career on the bench, helping to establish rights to privacy and free speech.
Today’s discussion of VRWC’s really needs more charts and graphs.
1But not the first ever nominated, or at least offered nomination; that was apparently Judah Benjamin, whom Millard Fillmore wanted to put on the Court. He refused, taking a seat in the Senate instead, and went on to join Jefferson Davis’s cabinet. Ruth Bader Ginsburg seems to think it’s anti-Semitic that people called him “Judas” Benjamin, although maybe it just means he was a traitor to his country.
UPDATED to note: pretty much all factual information contained herein comes from
Mason, Alpheus Thomas. Brandeis: A Free Man’s Life. New York: Viking, 1946.
