Louis Brandeis Supreme Court nomination

On January 28, 1916, President Woodrow Wilson nominated Louis Brandeis to fill the associate justice seat on the Supreme Court of the United States left vacant by the death in office of Joseph Rucker Lamar.

[4][5] In fact, the only U.S. senator that Wilson, a Democrat, had his administration consult before announcing the selection of Brandeis was Robert La Follette, a progressive member of the Republican Party.

A likely motivation for Wilson's selection Brandeis to be his nominee for the Supreme Court may have been a desire to shore up his credentials as a political progressive before the upcoming 1916 presidential election.

The Sun newspaper of New York City expressed outrage that Brandeis, who they regarded as a radical, had been nominated for appointment to, "the stronghold of sane conservatism, the safeguard of our institutions, the ultimate interpreter of our fundamental law".

One theory that was presented for why he did not was to not imperil his reelection in the upcoming 1916 United States Senate election in Massachusetts, fearing repercussions from Jewish and Catholic voters if he more actively opposed the nomination.

Edward M. House reportedly expressed suspicion that some southern senators were concerned that Brandeis might attempt to undo the separate but equal doctrine.

[3][10] As president of Harvard, Lowell would later attempt to impose a Jewish quota capping the number of Jews that would be granted admission to the university.

[5] Antisemitism is seen as a key factor in the decision for the unprecedented public Senate Judiciary Committee hearings held on Brandeis' confirmation.

[3] George Woodward Wickersham, the president of the New York City Bar Association and the former U.S. attorney general under Taft, attacked supporters of Brandeis' nomination as, "A bunch of Hebrew uplifters."

William F. Fitzgerald, a notable conservative Boston Democrat and a longtime political opponent of Brandeis, wrote that, "the fact that a slimy fellow of this kind by his smoothness and intrigue, together with his Jewish instinct can be appointed to the Court should teach an object lesson" to true Americans.

[5] Former president William Howard Taft sent a four-page letter to journalist Gus Karger, who was Jewish himself, that accused Brandeis of having only recently embraced his Judaism and adopted zionism as an unsuccessful ploy to get appointed as attorney general of the United States.

[5] The nomination had many prominent and influential supporters, including a number of noted attorneys, social workers, and reformers with whom Brandeis had previously worked.

At the urging of Frankfurter, Harvard Law School Dean Pound wrote a letter to Senator Chilton in praise of Brandeis' appointment.

[5] Similarly, such a letter was also written to Chilton and the subcommittee by former Harvard University President Charles W. Eliot, a highly regarded figure.

[5][33] Harvard Law School Dean Roscoe Pound testified during he Judiciary Committee hearings that, "Brandeis was one of the great lawyers," and predicted that he would one day rank "with the best who have sat upon the bench of the Supreme Court.

[34] Additionally, notable individuals that wrote letters to the Senate Judiciary Committee in support of Brandeis' nomination included Newton Baker (the reform-minded mayor of Cleveland), writer Norman Hapgood, Walter Lippmann, Henry Morgenthau Sr. (former ambassador of the United States to the Ottoman Empire), labor activist Frances Perkins, and Rabbi Stephen Samuel Wise.

"[35] Upon the nomination being made, The New York Times speculated that, "the appointment might appeal to advocates of religious tolerance because Mr. Brandeis is of Jewish blood and a leader in the Zionist movement.

Jewish businessman Nathan Straus convinced journalist Arthur Brisbane to author an editorial in the New York Evening Journal supporting the nomination.

[36] The purported reasons given for why there were to be hearings held on Brandeis' nomination were concerns about assertions that he was a controversial liberal, a supposedly dangerous radical, and that he might lack "judicial temperament".

The International News Service believed that the unprecedented move to hold open hearings on a Supreme Court nomination was due to, "the precedent-destroying fact that Mr. Brandeis is a Jew".

[6] Unlike preceding Supreme Court confirmation reviews by the Judiciary Committee, the hearings held into Brandeis took on characteristics of a trial.

The members of the subcommittee and later the full Judiciary Committee stood to deliver what amounted to a verdict on the allegations against Brandeis as it related to his suitability for the court.

[10][42] In March, at the close of the hearings by the subcommittee, seven former American Bar Association presidents (Joseph H. Choate Jr., Peter Meldrim, Elihu Root, Francis Rawle, Moorfield Storey, and William Howard Taft) sent a written statement to the committee that harshly opposed Brandeis' nomination.

[3][5][33] The letter declared, The undersigned feel under the painful duty to say to you that in their opinion, taking into view the reputation, character and professional career of Mr. Louis D. Brandeis, he is not a fit person to be a member of the Supreme Court of the United States.

[3] During this time, enemies of the nomination also circulated a document with false accusations of involvement by Brandeis in legal efforts to retrieve love letters sent by Wilson to a woman in Bermuda.

[50] Committee Chairman Charles Allen Culberson was encouraged by Attorney General Gregory to request that Wilson provide a summary of reasons why he had nominated Brandeis to begin with.

To place upon the Supreme Bench judges who hold a different view of the function of the court, to supplant conservatism by radicalism, would be to undo the work of John Marshall and strip the Constitution of its defenses.

[13] The three Republican senators that cast votes in support of confirming Brandeis (Robert M. La Follette, George W. Norris, and Miles Poindexter) were all staunch political progressives.

[5] A number of times since Brandeis, confirmation battles have taken a trial-like character in which nominees are made to answer past actions and justify their fitness for the court.

[60] Similarly to Brandeis, antisemitism likely played a role in the contentious nature of Abe Fortas' failed 1968 chief justice nomination.