On 3 January 1916, Louis Brandeis kept a long-standing commitment to address the Chicago Bar Association; not since his 1905 talk “The Opportunity in the Law” had he spoken so comprehensively about law and the legal profession. Afterward he took the train to Cincinnati for a Zionist meeting and a long visit with Alfred, who came up from Louisville to see him. Once he returned to Boston, he had little time to himself because of the demands of the Provisional Executive Committee and also because he and his colleagues had begun planning for an American Jewish Congress (see chapter 21).
Brandeis certainly knew that Associate Justice Joseph Rucker Lamar had died on 2 January and that rumors had been flying ever since about whom Woodrow Wilson would name in his stead. Charles Sumner Holt, a Chicago lawyer Brandeis had known at Harvard, wrote to tell him that Illinois’s governor, Edward Dunne, had been mentioned as a serious possibility and that he considered Dunne a person of “mediocre ability.” Brandeis assured Holt that Attorney General Thomas Gregory would carefully screen any recommendations to ensure a qualified appointment, and he promised to take it up with Gregory during a trip to Washington later in the month.
A week later, though, George W. Anderson, a Boston lawyer who had worked with the Public Franchise League, tracked Brandeis down in Bridgeport, Connecticut, where Brandeis had gone to talk about the American Jewish Congress. Anderson had been dispatched by the president and the attorney general to ask Brandeis one question: Would he accept appointment to the Supreme Court? Although Brandeis later said he had some qualms about the offer, he told Anderson he would, and Wilson sent his name up to the Senate shortly after noon on Friday, 28 January 1916. To Alfred he confided, “I am not entirely sure I am to be congratulated, but I am glad the President wanted to make the appointment & I am convinced, all things considered, that I ought to accept.”
It is doubtful Brandeis, Wilson, or any of the progressives who applauded the an nouncement had any idea of the firestorm it would unleash. The next four months would be the most difficult in Brandeis’s life, and many times it appeared that he might not be confirmed.
“Oh, what an associate for such a pure and
innocent girl. And we have tried to bring her
up so carefully, too!” Cartoon by Nelson
Greene in Puck, February 1916.
IN “THE LIVING LAW,” as he termed his Chicago talk, Brandeis provided the progressive era’s clearest and most cited critique of the failure of courts to take into account the facts of the real world.
Brandeis began by claiming that in recent years the demand of the people had shifted from the ideal of “a government of laws and not of men” to a call for “democracy and social justice.” As democracy had deepened in the United States, people wanted social justice more than legal justice, and their respect for the law had lessened. He attributed this to the swiftly changing economic and social conditions in the country and noted a similar phenomenon in other countries enduring rapid transformations, including ancient Greece, where Euripides had reviled “the trammelings of law which are not of the right.” After the French Revolution another period of change led the German writer Goethe to condemn customs and laws from the past that, like a disease, undermined the present health of society.
Brandeis asked whether Goethe’s diagnosis might be equally applicable to the United States. “Has not the recent dissatisfaction with our law as administered been due, in large measure, to the fact that it had not kept pace with the rapid development of our political, economic, and social ideals? In other words, is not the challenge of legal justice to conform to our contemporary conceptions of social justice?” The law, however, had not risen to this challenge.
Politics as well as economic and social science noted these revolutionary changes. But legal science—the unwritten or judge-made laws as distinguished from legislation—was largely deaf and blind to them. Courts continued to ignore newly arisen social needs. They applied complacently eighteenth-century conceptions of the liberty of the individual and of the sacredness of private property. Early nineteenth-century scientific half-truths like “The survival of the fittest,” which, translated into practice, meant “The devil take the hindmost,” were erected by judicial sanction into a moral law.
When state assemblies passed laws that addressed the social and economic needs of the people, such as protective legislation, the courts either declared them unconstitutional or construed them away. Little wonder, then, that people had denounced judges and courts with such anger.
Recently, Brandeis claimed, courts had become more sensitive to social needs, and he pointed as an example to the Illinois Supreme Court, which in 1895 had held an eight-hour law for women unconstitutional and then in 1910 had approved a ten-hour law. The different results had nothing to do with the number of hours involved. Rather, the first court had reasoned from abstract logic, while the second court had taken “notice of those facts of general knowledge embraced in the world’s experience.” Brandeis pointed to other state courts that had similarly reversed themselves and that now showed a greater awareness of the facts of modern life.
Brandeis rejected notions like judicial recall to correct the problems of judges who failed to heed social changes. He pointed out that legal training remained the best means to fit men not only for judicial training but also for service in the new administrative arms of government, but he noted that that education had to include social, political, and economic studies as well as law. Only when the nation had lawyers who understood the public interest and the changing needs of society would the country have judges who could provide social as well as legal justice.
He ended with the story of Bogigish, a great scholar of the law who had become a professor at the University of Odessa. When Montenegro secured its independence, its prince wanted his country to have a code of laws like all other civilized nations. The prince begged the czar of Russia to have Bogigish prepare a code for Montenegro; the czar agreed, and Bogigish undertook the task. But instead of relying on law books or his own immense knowledge of the law, he went to Monte negro and for two years lived with its people, studying their customs and their practices. He then embodied in the code he drafted all he had learned from the people, and they respected it, “because it expressed the will of the people.”
It is easy to see why progressives responded so favorably to Brandeis’s comments. They believed that the reforms they proposed, from factory legislation to protection of natural resources to model housing codes, all reflected what Holmes had called the “felt necessities of the times,” and the opposition they had met in courts could be blamed on the lack of knowledge by judges. Once judges understood the social and economic realities, law would no longer be an obstacle to progress, but instead become a source of social as well as legal justice.
Conservatives, however, could not have disagreed more. Talk about social and economic “facts” ignored the plain truth that the law existed to protect property and individual rights and stood as the only barrier between the mob and people of means. The rule of law meant fidelity to ancient precepts, and judges should never forget that they expounded the eternal verities of a law built up over centuries, not some faddish social or economic theory.
How people responded to “The Living Law” provided a good indicator of how they reacted to Wilson’s nomination of Brandeis to the high court.
THERE HAS BEEN a minor debate over who first suggested Brandeis to Wilson. William Gibbs McAdoo, Wilson’s secretary of the Treasury as well as his son-in-law, claimed that the president asked him about a week after Justice Lamar’s death whether he had anyone in mind to replace him. McAdoo immediately put forward Brandeis’s name and noted that Wilson seemed surprised but pleased by the idea.
“Do you think the Senate would confirm his appointment?” Wilson asked.
“Yes,” McAdoo replied, “he will be confirmed, but it will be a stiff fight.”
The credit is also claimed by Wilson’s attorney general, Thomas Gregory. After Lamar’s death Gregory went to the White House and asked the president whether he had given any thought to Lamar’s successor. “No,” Wilson replied, “I have been waiting to hear from you.”
“I am going to make a suggestion,” Gregory said, “and I am going to ask you not to respond for a week. I am going to recommend Louis Brandeis for the Supreme Court. My reason is that he is one of the most progressive men in the United States, and equal to the best in learning and ability.” At the end of the week Gregory returned to the White House for his answer. “You are right,” Wilson told him. “Send his name in.”
Wilson also received letters from leading progressives suggesting Brandeis, but given Wilson’s association with the man dating back to that first interview in August 1912, he probably knew Brandeis well enough not to need prodding from anyone to consider him for the Court. Aside from that, however, a number of factors played into the president’s decision. For Wilson, not only did the appointment reward a loyal ally and put a man on the Court who embodied ideals that Wilson had once believed unattainable, but it also shored up his chances to be reelected to the White House in 1916. Wilson did not want to repeat the mistake he had made two years earlier when he named the archconservative James Clark McReynolds to the bench.
Wilson had been elected by a plurality in 1912, although he had enjoyed a comfortable margin in the Electoral College. Had Roosevelt not bolted from the Republican Party, it is possible—even likely—that Wilson would have lost to Taft. After all, the country had been at peace and prosperous in 1912, two conditions that usually favored an incumbent. In the 1914 midterm elections, Republicans won back two dozen seats in the House and gained some senators and governors, winning nearly all of these seats from progressives. Theodore Roosevelt believed the reform spirit had faltered and made his peace with the GOP. For Wilson to gain reelection, he had to win over a significant percentage of the more than four million social justice progressives who had cast their ballot for the Bull Moose ticket four years earlier.
The war issue—whether the United States should join the Allies or stay neutral—split both parties, but the Democrats also seemed in disarray on the domestic front. Although the party controlled both houses of Congress, its leaders had been unable to make headway on several modest proposals Wilson had suggested to them. Faced with this scenario, the president came to two crucial conclusions in January 1916. First, in spite of the seeming confusion of views, a majority of the American people favored preparedness in case the United States should have to go to war, but preferred that the country stay neutral. Second, the only hope for victory in the November elections lay in attracting to the Democratic fold the large reform bloc that had supported Roosevelt in 1912.
To do this, Wilson had to abandon the belief that the federal government had no role to play in protecting underprivileged or disadvantaged groups, people whose welfare meant so much to the progressives. Wilson had already started down the road to greater federal involvement in the economy in the Federal Reserve and Federal Trade Commission measures. In the spring of 1916 he abandoned his indecision and helped push through Congress the Hollis-Bulkley Act to provide federal underwriting of a rural farm credits program, the Kern-McGillicuddy bill establishing a model workmen’s compensation plan for federal employees, the Keating-Owen child labor bill, a measure giving the Philippines greater autonomy, and the La Follette Seamen’s Act to protect merchant sailors. By the fall of 1916, the Democratic Congress under Wilson’s leadership had enacted every important plank in the Progressive Party platform of 1912.
More than any other measure, however, the Brandeis nomination won Wilson sustained applause from the independents. The nomination constituted “an open defiance of and a personal affront to the masters of capital as well as to conservative Republicans.” Progressives reacted as Wilson hoped they would. Amos Pinchot, a leading Roosevelt supporter in 1912, told Norman Hapgood that it “took courage & sense to make this appointment & I take off my chapeau to the President.” Pinchot predicted that the appointment “will pull a strong oar for Wilson in Wis, Minn, S & N Dakota and other Roosevelt strongholds.” Judge Learned Hand, one of Roosevelt’s strongest supporters in 1912, told Brandeis that “almost Wilson can bring me round after so good a stroke.” Robert La Follette, whom Wilson had consulted prior to announcing the appointment, said the American people owed a debt to Wilson. “In appointing Mr. Brandeis to the Supreme Bench President Wilson has rendered a great public service.” Wilson had also talked to Samuel Gompers prior to making his announcement, and organized labor spoke with one voice in praising the nomination; whatever quibbles they may have had with Brandeis’s support of union incorporation and scientific management, they knew that he had been one of their most effective advocates. The White House received hundreds of letters supporting the nomination.
On a more personal—and admittedly a more speculative—level, Wilson admired Brandeis as the type of lawyer he himself had once yearned to be. Wilson had always wanted to go into politics and early in his life had believed that law would be the road to take him there. But he and the law had been mismatched from the start, and in a letter to his fiancáe Wilson had concluded that to earn a sufficient living through the law would preclude his going into politics. “The law is more than ever before a jealous mistress,” he told her, and if a man “is to make a living at the bar he must be a lawyer and nothing else…. He cannot be both a learned lawyer and a profound and public-spirited statesman, if he must plunge into practice and make the law a means of support.” Wilson may have been drawn to Brandeis thirty years later because Brandeis had done what Wilson had deemed impossible—become a learned and successful lawyer as well as an effective political reformer. Surely he had Brandeis in mind when he spoke to the Gridiron Club about six months after his nominee had taken the oath of office. The old-style judges, those who spun their decisions out of the gossamer of legal theory without reference to worldly realities, “have now gently to be led to a back seat…. And men must be put forward whose whole comprehension is that law is subservient to life and not life to law.”
IF WILSON’S MOTIVATIONS for naming Brandeis seem straight forward enough, Brandeis’s reasons for accepting are a bit more opaque. He had not looked for any appointment and seemed well content with the advisory role he played in the Wilson administration as well as with his access to the president. He had found a new cause in Zionism, a challenge that tested him every day. He had more than enough money; and the dream he had told Alice about—being financially free to serve the public—had come true. Although almost a year shy of his sixtieth birthday, and still physically and mentally active, he knew that he could not continue the pace he had set in the last two years. He traveled constantly: to New York for the arbitration board; to Washington for the Interstate Commerce Commission; and all over the East Coast and much of the Midwest for Zionism. He spent so much time in Washington he could well have considered his rooms at the Hotel Gordon a second home. He had had some health problems, and Alice worried that he pushed himself too hard. The Court would not be as physically demanding, yet still offered a chance at service. When the opposition decried the appointment, Louis told his brother, “My feeling is rather—’Go it husband. Go it bear’ with myself as ‘interested spectator.’” This comment must surely be taken with a rather large grain of salt. Although he never lifted a finger to get the nomination, once it was made, he fought hard to ensure his confirmation.
Brandeis saw the appointment as a vindication not only of his belief in the compatibility of Zionism and Americanism, but also of his work as a reformer. A seat on the nation’s highest court would give him a forum not only to preach but to practice the message he had been articulating for more than a decade—that the law had to reflect and take into account the realities of modern life. Wilson gave him the opportunity to become the type of judge he said the country needed in his Chicago address; it was an opportunity he could not ignore.
A politically astute man, Brandeis understood that at least in part, Wilson was reaching out to the reformers, and in commenting on the growing opposition, he wrote, “The fight that has come up shows clearly that my instinct that I could not afford to decline was correct. It would have been, in effect, deserting the progressive forces.” To Roscoe Pound, he said, “I doubted much whether I ought to accept, but the opposition has removed my doubts.” During the long fight reformers from every camp rallied to him, vindicating Wilson’s strategy but also giving Brandeis great satisfaction and support.
Shortly after the nomination had been announced, Alice wrote to her brother-in-law that she had some misgivings. “Louis has been such a ‘free man’ all these years but as you suggested—his days of ‘knighterranting’ must have, in the nature of things, been over before long.” Her husband would have preferred another five years of “knighterranting,” but the Court, as they both knew, provided a great opportunity for service, “and all our friends here feel that he is the one man to bring to the Court what it greatly needs in the way of strengthening.” Some would no doubt call it a political appointment, and she admitted that some of that could not be denied, “but the President himself told Louis that he wanted him in the Court because of his high respect for and confidence in him.”
There were, indeed, all of these aspects in the appointment—politics, service, and something Alice did not mention, self-justification on both sides. In late January 1916 the personal and the political came together in a perfect confluence.
FEW EPISODES IN AMERICAN HISTORY shed so much light on their era as the Brandeis nomination, for the lineup of supporters and detractors provided a clear demarcation between progressives and those opposed to the reform movement. Both sides recognized Brandeis as the embodiment of progressive ideas, and as reformers ran into an increasingly hostile political environment, they turned to the courts seeking social progress; no one represented this idea better than Brandeis. His public advocacy, as one historian noted, threw “into high relief the clash between traditional American individualist values and the opposing tendencies of modernization in Western society.”
It is not surprising, therefore, that the appointment generated controversy. Brandeis’s partner George Nutter noted in his diary, “Brandeis will be opposed because he is supposed to be radical. But he is really not a radical…. He is very intense in his beliefs and zealous in forwarding them.” He expected there would be a fight, not because Brandeis had done anything wrong, but rather because in his zeal he had occasionally done “foolish things and could have avoided some of the misunderstandings that have arisen.” But, Nutter concluded, Brandeis had “always acted with good intentions and from good motives.”
Others took a far less charitable view. “If Mr. Wilson has a sense of humor left,” a Washington correspondent told former president William Howard Taft, “it must be working overtime today. When Brandeis’s nomination came in yesterday, the Senate simply gasped…. There wasn’t any more excitement at the Capitol when Congress passed the Spanish War Resolution.” Brandeis’s “notorious reputation” and his ardent progressivism alarmed the financial leadership in Boston and New York and their political spokesmen in Washington. Within twenty-four hours the Senate took the unprecedented step of naming a subcommittee of the Judiciary Committee to investigate the nominee. From the day of Wilson’s announcement until the Senate’s vote to confirm on 1 June, a battle raged over Brandeis’s ethics, his way of practicing law, and, in large measure even if indirectly, reform itself. Both sides saw the struggle as one for the “soul of the Supreme Court.”
William Howard Taft (who had long coveted a place on the Court and thought for some reason that Wilson would appoint him) summed up conservative thought in a set of charges that would be seen in almost every facet of the opposition to Brandeis over the next four months:
It is one of the deepest wounds that I have ever had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a man as Brandeis could be put in the Court, as I believe he is likely to be. He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous, in method in reaching them, a man of infinite cunning … of great tenacity of purpose, and, in my judgment, of much power for evil.
Taft’s experience at the hands of Brandeis during the Pinchot-Ballinger affair explains at least some of his hyperbole, but the fact remains that conservatives saw the nation’s highest court as a citadel to protect property and individual economic rights, not as a place from which radical ideas of social justice could be spouted. Wilson and Taft both rightly believed that if Brandeis went on the Court, he would bring with him the ideas he had preached about a living law and the need for judges to respond to social change, an idea that pleased one and terrified the other.
Everyone understood that Brandeis came from an entirely different cast from the other members of the Court. Holmes, a unique intellectual loner, actually stood closer to his conservative brethren than to the new men in political life. Charles Evans Hughes had a good mind, and showed promise of being a leader on the bench, but he also fit into the conventional mode. If Brandeis went onto the bench, he would bring with him a new outlook and different experience from the old-school justices, and if his ideas prevailed, they would topple the old bastion of property-oriented classical thought. Both his friends and those opposed to the appointment recognized this, and while his career gave both sides plenty of ammunition to debate the man, in fact the real fight involved the future of the Court.
Response to the nomination in newspapers and magazines reflected this split. Progressive journals like the New Republic and Harper’s Weekly applauded the appointment, while most business-oriented outlets damned it, some of them calling Brandeis “a socialist or a progressive,” clearly believing the two meant the same thing. The voice of American capitalism, the Wall Street Journal, condemned the appointment and singled out Brandeis as the leader of anti-corporation agitation. “Where others were radical he was rabid; where others were extreme he was super-extreme; where others would trim he would lay the ax to the root of the tree.” In a similar vein, the Los Angeles Times labeled him a “hypocrite” and a “dangerous demagogue” and said the effort to place him on the high court “is enough to make cold chills run down the spine of every patriot of the nation.” The Boston Evening Transcript, the voice of State Street and the Brahmins, opposed Brandeis not, according to its editor, because of a lack of ability or questions of honesty but because he had a different code of honor from that espoused by the paper. In an interesting comment, the Washington Star, while predicting a “big fight” over the nomination because of Brandeis’s reform activities, believed that it would not be “a question about race.” Of course, when someone says a matter is “not about race,” it often is, and the question is how much did Brandeis’s religion and anti-Semitic prejudice play in the fight over his nomination.
When confronted with the first Jew named to the Supreme Court, and in a time of growing nativism, clearly those who feared “foreigners” would oppose the appointment. To the Protestant elite in the country, the idea of a Jew on the Court—even one born in the United States—would have seemed proof that an alien invasion had taken over their country. William F. Fitzgerald ranted 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. While some senators may have objected to Brandeis because he was a Jew, none of them wanted to appear prejudiced, especially as the recent Leo Frank lynching had sensitized people to anti-Semitism. In fact, according to the New York Sun, if Brandeis were not a Jew and had to go before the Senate only on his merits, he would easily be defeated. “There is, however, danger that the racial issue will become involved in the struggle, and in that event it would be difficult to predict how members of the Senate would vote.” The journalist Gus Karger opined that “many Senators who might base their opposition to him on sound and logical grounds, if he were a Presbyterian, are reluctant to take a stand, lest their opposition be misconstrued.” Brandeis was well aware of these arguments, as well as of the more overt anti-Semitic attacks on him. At the time, however, he ignored them.
The nomination, of course, played well within the Jewish community, much to Taft’s disgust. The Jewish press was ecstatic, and the Jewish Daily Forward carried a huge headline announcing the appointment. Outside Seward Park on the Lower East Side an electric sign, similar to the news sign in Times Square, blazoned the news in Yiddish: “LOUIS D. BRANDEIS, THE FIRST JEW NOMINATED BY PRESIDENT WILSON TO THE SUPREME COURT OF THE UNITED STATES.” “God be blest!” one young Jew declared when he saw the news. “In Russia we dreamed of it. Here it is a fact.” An older man said, “It must be true. Why should they fool us?” That Friday evening, many rabbis all across the country devoted all or part of their sermons to the news that had been announced earlier in the day.
Unlike 1912, when leaders of the Jewish community could tell Colonel House that they did not consider Brandeis a “representative Jew,” now they had little choice but to laud the nomination. In fact, one of the first to send a congratulatory telegram had been Jacob Schiff, who also praised the appointment in a public statement. Taft almost gloated over their discomfort. “The humor of the situation over Brandeis grows as I think of it,” he told his brother. “Speyer, Schiff, Kahn, Louis Marshall all have to praise the appointment and all hate Wilson for making it.” Whether they actually hated Wilson, there is no question that the appointment made them uncomfortable. Financiers like Schiff had often felt the barbs of Brandeis’s attacks on finance capitalism. Louis Marshall and the American Jewish Committee had worked for years to get new Jewish immigrants to accept their view of what loyalty to the United States meant, only to have Brandeis in less than two years make Zionism a power within the Jewish community and a threat to the hegemony of the committee in speaking for Jews on public issues.
Karger’s estimate that if Brandeis had been a Protestant the Senate would easily have defeated the nomination is impossible to verify, for the simple reason that with one exception, Brandeis’s religion never came up in the entire hearings. On 2 March, Francis Peabody testified about Brandeis’s reputation at the Boston bar. In response to a question from Senator Duncan Fletcher (D-Fla.) about whether Peabody knew any specific cases that would show a lack of ethics on the nominee’s part, Peabody responded, “I did not know he was a Jew. I would say that had not been disclosed until a few years ago. That made no difference as far as my opinion of him goes, except so far as it was made prominent and before that had not been known.” Fletcher did not ask any follow-up questions, nor did any of the other senators. Peabody had raised an issue none of them wanted to talk about.
By 1916 anti-Semitism had pervaded a good part of Boston society, albeit not the overt Jew hatred found in Europe. In his diary George Nutter, who had been in the Brandeis firm since 1889, noted with disapproval what he considered evidence of anti-Semitism at a meeting of the Boston Bar Association and from attorneys who wondered if Brandeis “understood plain Anglo-Saxon,” that is, if he shared Christian values. Yet Nutter himself apparently held some of these same views and, in describing Brandeis, wrote, “He has the ability of his race, and some other racial habits, particularly the zeal for accumulation of wealth. He is very rich, yet he lives a notably simple life and avoids the posturing of the Jews.”
Throughout the fight, both Brandeis’s allies and his opponents steered clear of his religion, the latter to avoid the appearance of bigotry, and the former to prevent making the matter the central issue. Attorney General Thomas Gregory wanted to play down lobbying by Jews and Jewish organizations. Any public activity by Jews, he told Ned McClennen, is “not likely to help with the Bourbon Democrats. They know what this support means in coming elections without having it called to their attention.” Gregory expected—correctly—that the outcome would be determined by party loyalty. At Brandeis’s directions, his allies also worked to keep statements of Jewish support to a minimum, and he quickly scotched an offer to collect signatures of Jewish lawyers on his behalf. Felix Frankfurter, who undertook the coordination of responses to charges made against Brandeis, agreed that the nominee’s record and his religion had to be kept separate. “It is terribly important,” he told Judge Julian Mack, “that no Jews should make the slightest peep about the race issue. You know as well as I do that the Jew in Brandeis has nothing to do (I except negligible isolated individuals) with the grounds of opposition.” Many prominent Jews opposed the nomination, as did prominent Bostonians, “and for about the same reasons.”
McClennen later claimed that anti-Semitism constituted the main reason for opposition, especially from southern Democrats. Brandeis himself, at least at one point, believed that people opposed the nomination because he was a radical and a Jew, but he never really explained what he meant. Nearly all of the public opposition to him centered on his allegedly unethical practice of law, and with the exception of the comment from Peabody (which in fuller context related to what Peabody believed to be Brandeis’s duplicity in regard to a specific case), the public debate ignored his religion. In the end, while scholars will continue to disagree on how much a role, if any, prejudice played in the fight, people who by all accounts did not care about Brandeis’s religion opposed him because of his views on economics, business, and law. As Brandeis himself recognized, his Jewishness, while a complicating factor, had little to do with the extent of the opposition. A Jewish lawyer who worked for a Wall Street bank would not have faced such bitter antagonism. Perhaps the fairest way to treat this question is to note that Brandeis’s religion constituted but another marker of his “outsider” status and, as with his alleged radicalism, made him unfit to enter the temple of the law.
THE DAY WILSON ANNOUNCED the nomination found Louis and Alice in Washington to attend a dinner given by Secretary of the Treasury McAdoo for the president prior to Wilson’s western trip to drum up support for his preparedness program. Among the guests were Justices Charles Evans Hughes, Mahlon Pitney, and James Clark McReynolds, and Wilson personally took Brandeis over to introduce them to their newest colleague. Reporters had be sieged Louis and Alice as they left the Hotel Gordon to go to the White House, but Brandeis would not then, nor for the next several months, talk to the press. “I have nothing whatsoever to say,” he told them. “I have not said anything and I will not.” When a reporter for the New York Sun asked about specific charges that might be made, Brandeis replied, “I have nothing to say about anything, and that goes for all time and to all news papers, including the Sun and the moon.”
The field manager of the
confirmation, Brandeis’s law
partner, Edward McClennen
Brandeis’s reticence reflected his sense of the proprieties a Supreme Court justice, even a nominee, should follow, namely, insulation from the press. But he also knew that there would be a fight over confirmation, since approval did not necessarily follow appointment. The Senate in exercising its constitutional power to advise and consent had at times withheld its approval, going back to George Washington’s failed appointment of John Rutledge as chief justice. Since then, the Senate had rejected seven other nominees, while a dozen more had withdrawn in the face of opposition or failure of the Senate to take up the appointment. Also, at that time nominees did not appear in person before the Senate Judiciary Committee. Brandeis apparently gave no thought to breaking this tradition, but he and his supporters recognized that he would be at a disadvantage in not being able to defend himself personally. A way would have to be found to respond to charges brought against him.
The nominee met with George Anderson at the Cosmos Club on 3 February, and after consultation with Attorney General Gregory the three men agreed that Brandeis would return to Boston. Anderson, although he had opposed Brandeis in some of the Massachusetts battles, strongly believed the Boston attorney qualified for the Court and offered to serve as one of his representatives in Washington. But Brandeis and his partner Edward McClennen agreed that no one should formally represent the nominee, so Anderson served as counsel to the subcommittee and as a counterweight to Austen Fox, an opponent of the nomination who also offered his services to the senators and then spent several weeks dredging up accusations against Brandeis. Ned McClennen moved down to Washington for the duration, serving as the main conduit for information to and from the nominee. “The Justiceship ist ein bischen langweilig [a little bit boring],” Louis told Alfred, “but I am leaving the fight to others.” This was hardly true, and Alfred, who knew his brother well, recognized that the last thing Louis could do was let others fight for him.
Upon his return to Boston, Brandeis adopted a policy of public silence. He did respond to the many letters that came to him, and seemed to take great pleasure when men he had known in law school or had not seen for many years wrote to congratulate him. To Walter Douglas, his friend and roommate at Harvard, he wrote that the nomination had brought messages from a number of their classmates. “I think often of you and of our days at the School; and my interest in Avon Street has been revived through my daughter Elizabeth living at Whitman Hall (Radcliffe College), which is situated but a stone’s throw from our old rooms.” He stopped going to the Union Club for lunch, made no more public appearances for the Zionists (although he continued to travel to New York for occasional private meetings with the staff), and refused to take any new clients. In some ways, despite the stress of the confirmation fight, Louis and Alice enjoyed more of a “normal” life than they had in a long time, with Louis home for dinner every evening. As winter turned to spring, they moved to the Dedham house to enjoy the nearby woods.
From the beginning of February until the first of June, Brandeis went to the office in the morning, answered his mail, consulted when any of his associates needed an opinion on a problem, and dealt with the charges raised against him. He had an informal war council—Norman Hapgood in New York, Thomas Gregory, George Anderson, and Robert La Follette in Washington, and Felix Frankfurter and George Nutter in Boston. Ned McClennen wrote daily, sometimes several times a day, from Washington, and his letters alerted the office to what charges had been raised and what various allies reported. Brandeis, Nutter, and others, aided by Miss Grady, would then go through the office files researching the old cases, and Brandeis would then dictate long letters for McClennen setting the record straight and explaining why he had acted as he had in particular matters.
Despite his silence, Brandeis served as field marshal of the campaign to get him on the Court. Although Hapgood, the editors of the New Republic, La Follette, and Frankfurter all felt free to act on their own, they always reported to him what they had done, to whom they had spoken, and what they had heard. When Senator William E. Chilton (D-W.Va.), head of the subcommittee, suggested that letters from prominent lawyers endorsing the appointment would be helpful, Brandeis contacted George Anderson to begin soliciting Boston attorneys and sent Norman Hapgood a list of attorneys and judges (including Learned Hand and Samuel Seabury) who should be contacted. Unaware that Gregory had decided to play down the Jewish aspect, Brandeis also sent Hapgood a list of prominent Jewish lawyers. He prepared a list of cases he had argued in the U.S. Supreme Court as well as the Supreme Judicial Court of Massachusetts, addresses to bar associations, and law review articles. When friends and professional acquaintances asked him what they could do, he invariably responded that they should write directly to Senator Chilton. He dispatched another partner, George Nutter, to New York and occasionally to Washington to help McClennen when necessary, and directed how supportive letters might best be used. And, from the tone of his early letters, he believed things would go well. “What a rumpus the President has started up,” he wrote to one friend, “and all over a peace loving individual.”
THINGS, HOWEVER, did not go well, and for a while Brandeis seemed besieged on every side. Wall Street law firms deluged the Senate with hundreds of letters, all suspiciously identical: “Dear Sir: I/we protest against the nomination of Mr. Louis D. Brandeis to be a Justice of the Supreme Court, and urge you to vote against its confirmation.” In Boston, Harvard’s president, Abbott Lawrence Lowell, a man who made little effort to hide his anti-Semitism (and who in the 1920s would try to restrict the number of Jews attending the university), circulated a petition against Brandeis that carried fifty-five signatures, including some of the oldest Brahmin names in the city, such as Adams, Gardner, and Peabody. J. Butler Studley, a lawyer in the Brandeis office, drew up a chart showing the interconnectedness of all fifty-five signers and how all of their directorships and financial interests overlapped. Behind the scenes Brandeis’s longtime foe Henry Lee Higginson stirred up more opposition. Seven of the sixteen living former presidents of the American Bar Association signed a letter to the subcommittee declaring Brandeis unfit to serve on the high court.
George Nutter complained that “we cannot get a petition signed” and that it took forever to get a letter sent, but Brandeis’s supporters did take steps to counter the opposition. At Harvard Law School, a third-year student named Shelton Hale, who also served as campus correspondent for the Boston Post, asked the eleven members of the law school faculty their view. Nine of the eleven announced their support, one refused to comment, and only one, Edward H. Warren, opposed Brandeis. In praising Brandeis, Roscoe Pound quoted Edmund Burke on the great English jurist Lord Mansfield—that he made the liberality of the law “keep pace with the demands of justice and the actual concerns of the world.” In direct response to Lowell’s indictment, 713 Harvard University students signed their own petition supporting Brandeis. Newton D. Baker, the mayor of Cleveland and soon to become secretary of war, Frances Perkins, Paul Kellogg, and many others either wrote to the subcommittee or appeared as witnesses.
The Reverend A. A. Berle, a longtime friend of the nominee’s whose son had just been hired in Brandeis’s law office, suggested to Senator Chilton that the subcommittee not give too much weight to the Lowell petition. The Brahmin community had enjoyed unchallenged control of the Commonwealth for so many years that they had come to believe that anyone who disagreed with them and of whom they did not approve “is ipso facto a person who is either ‘dangerous’ or lacking in ‘judicial temperament.’” They would never give up the idea that only a long New England pedigree made a person worthy of honor.
While conservative newspapers gave play to the charges against Brandeis, his friends kept the periodical press full of rebuttals and articles praising the nominee. Norman Hapgood, as expected, carried on a weekly drumbeat in favor of his friend in Harper’s and, whenever a new charge arose, quickly answered it, often with information directly from Boston. Brandeis, Hapgood wrote, had never been in the practice of responding to his critics, and now all of the old foes had gone to Washington to resurrect charges, implying that Brandeis’s silence constituted an admission of guilt. Nothing could be farther from the truth. In the 1 April edition, Hapgood ran three editorials, one of them noting that much of the criticism had come from cronies of President Taft, whose deceptions had been uncovered by Brandeis in the Pinchot-Ballinger hearings. In response to the Lowell petition, Harper’s ran letters from Roscoe Pound and the economist William Z. Ripley, both of Harvard, praising Brandeis’s work not only in law but also in the railroad hearings.
The editors at the New Republic, who had been somewhat estranged from Brandeis because of their support for Theodore Roosevelt’s New Nationalism, now enthusiastically became his champion, and Brandeis jokingly told Learned Hand that the magazine bore at least some of the responsibility for the appointment. During the fight Herbert Croly, Walter Lippmann, and Felix Frankfurter wrote some of the strongest articles in his defense, shredding the attacks made against him. In their first editorial on 5 February, they laid out not only the nominee’s qualifications but also why they believed he would be the right man to join the Court. Almost every week afterward they noted the attacks made against Brandeis and then showed up the falsehood of the accusations.
While the support of the Survey, a magazine devoted to social justice causes, is not surprising, that of the Outlook is. The magazine to which Theodore Roosevelt regularly contributed columns might have looked askance at the man who had helped Woodrow Wilson defeat TR in 1912. The editors, however, spoke for the type of progressive that Wilson hoped to win over in 1916, and they, like many other reformers, praised Wilson for the nomination and urged the Senate to confirm Brandeis to the Court.
Both opponents and proponents of the nomination knew, however, that while all the arguments made in the papers and magazines might influence some public opinion, the only opinions that mattered were those of the men in the Senate, and especially those holding hearings on the nominee’s fitness to be a member of the Supreme Court.
THE SUBCOMMITTEE, consisting of three Democrats and two Republicans, began hearings in the ornate Judiciary Committee room on Wednesday, 9 February, to an audience that filled all of the seats and stood jammed in against the windows and wall. Of the three Democrats, William Chilton of West Virginia, Duncan Fletcher of Florida, and Thomas J. Walsh of Montana, the last would become Brandeis’s strongest defender during the hearings. The two Republicans were Clarence Clark of Wyoming, who had sat in the upper chamber since 1895, and Albert Baird Cummins of Iowa, certainly the best-known man on the subcommittee. Progressives like La Follette hoped that the insurgent Cummins would endorse Brandeis, but like most other progressive Republicans, Cummins had crawled back into the regular party after their 1912 escapade. A few weeks into the hearings Senator Clark withdrew, and John D. Works of California took his place. Like Cummins, Works had something of an insurgent reputation and had worked closely with La Follette on some proposals. In the end, however, he toed the party line against Brandeis.
Clifford Thorne started off as the first witness, and he immediately tore into Brandeis for betraying his trust in the 1913 Advanced Rate hearings before the Interstate Commerce Commission. Brandeis, Thorne told the senators, “was guilty of infidelity, breach of faith, and unprofessional conduct in connection with one of the greatest cases of this generation.” Thorne kept returning to the theme that Brandeis thought a 7.5 percent return on capital stock was inadequate, indeed, using Brandeis’s phrase, “niggardly.” Thorne’s testimony lasted until nearly 10:30 at night, and when he rose, John M. Eshleman, the lieutenant governor of California, immediately took the witness stand to contradict Thorne. Brandeis had acted honorably and had never, despite Thorne’s insinuations, suggested that the railroads should get the full 5 percent rate increase. Eshleman said that Brandeis’s role had been very clear to everybody; he would not represent either the shippers or the railroads, but would serve as counsel to the ICC in seeking a solution that would be fair to all parties, including the public. He could not fathom why Thorne had ascribed ulterior motives to Brandeis in his testimony. After Eshleman, Joseph Teal, an attorney from Oregon who knew Brandeis personally and had worked with him on the Oregon minimum-wage case, also testified that he could not find any basis for Thorne’s testimony. “I was astonished,” he told the subcommittee, “not only because I do not believe Mr. Brandeis would betray anybody on earth, much less the public, but with my knowledge of him acquired in the way I stated, I could not believe it possible.”
By the time Teal finished and the subcommittee adjourned, the clock read 11:20, much too late for the morning newspapers to carry Eshleman’s and Teal’s testimony. But they did carry detailed stories on Thorne’s testimony. It appeared very damaging to some people, but former president Taft, on reading through it, understood that “if what Thorne had to say against Brandeis is all there is, I should not regard it as a very serious matter.” The next day two more witnesses—James Carmalt, the ICC’s chief examiner, and Frank Lyon, a Washington attorney who had worked with the commission since its inception—took the stand to rebut Thorne, and the committee began to consider just how it ought to handle the testimony. By the second day it had become clear that Cummins stood opposed to Brandeis and wanted the hearings to proceed as if the nominee were a defendant in the dock, with the witnesses bolstering the prosecution’s case that he was unfit for the high court. This did not sit well with his colleagues, especially Walsh, who wanted the witnesses to stick to what they knew personally. Senator Fletcher agreed; witnesses should “not state what Tom, Dick and Harry have said to them, to make purely hearsay statements, but shall be confined to what they know.”
Yet the very next witness, Thomas C. Spelling of New York, launched into a diatribe against Brandeis, who had apparently had the audacity to mark up his brief before the ICC to highlight what Brandeis considered its weaknesses and errors. The committee finally managed to cut off the talkative Spelling, who wanted to read aloud an eight-thousand-word statement he had prepared. Just put it in the record, Senator Fletcher snapped. “We can read, you know!”
And so it went. Clarence Barron called himself a “farmer” but admitted he was “connected with” the Wall Street Journal and that he had written some critical editorials about the appointment. “It is not necessary,” Barron had written in a piece he read into the record, “to uncover the grave of Patrick Lennox or reopen the Warren settlements to show the moral fiber of Louis D. Brandeis and his unfitness for the Supreme Bench.” Barron, of course, did not mention his role as head of the Boston News Bureau in slandering Brandeis at the behest of Charles Sanger Mellen, the president of the New Haven Railroad. The committee did, in fact, hear about the Lennox case and the Warren will and United Shoe, and it also heard, from Ned McClennen, a detailed rebuttal to each and every one of the charges.
Interestingly, Charles Mellen, who people thought would be glad of the opportunity to attack Brandeis for his role in bringing down the New Haven, refused to testify. After the subcommittee issued a subpoena, he wired back that he had “no information of any character” that would be of value in the hearings and asked to be excused. Senator Walsh reported that he had then asked Mellen if he could comment on the truth or falsity of the charge, leveled by Barron, that Brandeis had been employed to “wreck” the New Haven. Walsh read aloud Mellen’s response: “I am absolutely without information as to anything that I would be justified to testify under oath. I think it would be a waste of the committee’s time and mine for me to go to Washington to testify. I am not at all unfriendly to Brandeis, and I know nothing about his career except hearsay.” If any of his colleagues still wanted Mellen, they could insist, but apparently none of them did, and that seemed to take care of the New Haven charge.
Hollis R. Bailey, a Boston lawyer who had known both Brandeis and Sam Warren from their Harvard days (Bailey, in fact, had been one of the students who read to Louis when he had eye trouble), then took the stand to explain the intricacies of the Warren will, another of Brandeis’s “sins” that Barron had raised. Bailey testified for more than two hours and conceded that the problem had arisen because Sam’s brother Edward, whom Bailey represented, had objected to the trusteeship arrangement Brandeis had drawn that supposedly protected all members of the family. Edward believed that the instrument worked solely for Sam’s benefit. Bailey, however, did not accuse Brandeis of unethical conduct, but claimed he should not have tried to represent all members of the family. He ought to have recognized that conflicting interests existed, and recommended that individual members of the family retain independent counsel. When asked about Brandeis’s reputation, Bailey called him very able and a man of keen intellect but not entirely trustworthy. Bailey also testified that his client had not complained about the arrangement until a number of years after the trust had been implemented, and that the family had resolved all outstanding issues after Sam’s death. Another one of Barron’s allegations fell by the wayside.
One person, however, proved highly indignant over Bailey’s testimony. Cornelia Warren expressed her anger that the family’s affairs had been aired before the committee. She, for one, had full faith in Brandeis and wanted the committee to understand that Edward, and only Edward, had objected. She hoped sincerely that the nomination would be confirmed and that the whole country could benefit from his ability. Brandeis must have taken a great deal of satisfaction from this letter, and said that he regretted that “the attacks on me should be made the occasion to attack” the memory of Sam Warren, a man whom Brandeis called the “soul of honor.” Interestingly, Brandeis did not seem to understand Bailey’s assertion that conflicting interests within the family should have led Brandeis to advise them to have separate lawyers. He had not been on anyone’s side, but “of holding throughout the period of trust, as I had during your father’s lifetime, the position of advisor of the family, and during most of the time, of each and every member in their relations to one another, as to outsiders.” The only good to come out of the hearings, he believed, was that further investigation would show that all members of the family, including Edward, had for many years lived happily with the original arrangements.
A MORE VIRULENT ATTACK came when Sidney Winslow, president of the United Shoe Machinery Company, took the stand on Tuesday, 15 February, and spent two days accusing Brandeis of “unprofessional conduct and of conduct not becoming an honorable man.” Brandeis had helped set up United Shoe, had sat on the board, had gained great knowledge of its business practices, and then, at the instance of a competitor, had turned against the company and unfairly aided government prosecutors in their antitrust suit against the company. Winslow testified for more than five hours and introduced dozens of documents into the record, some from the company’s files, some from hearings before congressional committees, and some from other sources. Over and over he charged that Brandeis had betrayed his old client. Buried in this mass of paper was a letter from Brandeis to Senator Moses Clapp explaining his involvement in United Shoe affairs, why he left the company, and his subsequent relations with the firm.
McClennen and Nutter had understood from the beginning that of all the charges leveled against Brandeis, these might be the most damaging. According to Winslow, Brandeis had been a key player in devising the strategy that gave the company its monopolistic power and then he had turned on it, and had used his knowledge of the firm to attack it. Anticipating Winslow’s charges, McClennen had prepared a lengthy memorandum tracing Brandeis’s involvement with United Shoe up to his letter to Senator Clapp, drawing not only on the office’s files but also, at Brandeis’s suggestion, on interviews with LaRue Brown, who had prosecuted the antitrust suit during his tenure as U.S. attorney.
All of the charges involving the rate hearings, United Shoe, the Warren will, and other matters could not, as individual episodes, sink the appointment. Together, however, they raised the questions of whether Louis Brandeis could be trusted, whether he had the integrity to take a place on the nation’s highest court, and whether his reputation at the Boston bar reflected a flawed character or merely the jealousy of those he had bested in legal combat. A good friend of Brandeis’s for many years, Charles C. Burlingham, noted that many lawyers resented Brandeis because he neither asked for nor gave favors in the usual give-and-take of the law. If one lawyer asks for an adjournment, for whatever reason, professional courtesy dictated that the opposing lawyer agree, on the understanding that at some point in the future the tables might be reversed. Brandeis, according to Burlingham, “never gave any favors to anybody. His justification was that he was representing his client.” Burlingham thought Brandeis wrong on this, and believed it contributed to the ill feeling against him by the Boston bar. Nutter noted in his diary that “the feeling against Brandeis is so strong that it is difficult to get [favorable] letters from the bar.”
Moorfield Storey, a highly respected member of the Boston bar, may have been one of the most damaging witnesses against Brandeis because time and again he returned to the theme that Brandeis had acted unethically and could not be trusted. Storey, then seventy years old, had had a distinguished career as a lawyer, secretary to Senator Charles Sumner, historian, Harvard overseer, and president of the American Bar Association. Moreover, he could not be accused of being just another archconservative; Storey had helped to found and served as first president of the National Association for the Advancement of Colored People. Initially, Storey claimed he did not know why he had been called to Washington, but when told that Clarence Barron had named him as one who could testify as to Brandeis’s fitness for the Court, Storey agreed. He then went on to tell the subcommittee that he believed Brandeis had never been honest regarding whom he acted for, and he recounted a proxy fight in 1892 when the New Haven had attempted to take over the old New England Railroad Company. Storey said one could not tell for whom Brandeis had then acted, and he had also been dishonest claiming to represent Louis Glavis in the Pinchot-Ballinger hearings when in fact the real client had been Collier’s.
When Senator Walsh wanted to know if Storey could back up Barron’s claim that Brandeis had tried to wreck the New Haven, Storey said he could not, but immediately went on to tell the subcommittee that he opposed the Brandeis nomination “because of his reputation at our bar as a lawyer.” Senator Works then asked, “What is that reputation?” and Storey said, “That of a man who is an able lawyer, very energetic, ruthless in the attainment of his objectives, not scrupulous in the methods he adopts, and not to be trusted.”
Senator Works then asked how much contact Storey had had with Brandeis, and Storey conceded that he had been engaged against Brandeis in only three or four matters, and in fact had never had any personal quarrel with him “or any difficulty at all,” and their public activities had been in different areas. The two men moved not only in different legal worlds but in different social strata as well. When Works persisted that perhaps many of the rumors against Brandeis had been fomented by agents of the New Haven, Storey denied this and said he had spoken to a number of Boston lawyers and they all had the same view of Brandeis, but he declined to mention any of their names.
Had Storey’s testimony stopped then, it could have been extremely damaging, but Senator Walsh and George Anderson kept him on the stand and asked him if he could explain who some of the fifty-five people were who had signed the Lowell petition against the nominee. Storey said he would be glad to do so and then, perhaps unconsciously, showed how they all belonged to very tightly knit social, commercial, and legal circles. Rather than seeing them as a clique, however, Storey lauded the signatories as “representative” of the best men in Boston. He also unwittingly refuted some of Hollis Bailey’s testimony regarding the Warren will case, saying, “I should have done perhaps very much as Mr. Brandeis did if I had been in his place.”
Anderson wanted to know how, as an overseer at Harvard for many years, Storey could explain the near-unanimous support given to Brandeis at the law school if, in fact, the appointee had such a low reputation at the Boston bar? Well, Storey responded, Roscoe Pound had come to Cambridge only a few years earlier, and Felix Frankfurter was just a young man from New York, so they really did not know much about Boston and its legal culture. Also, Brandeis had always been very “courteous” to the school, had helped it from time to time, so the professors naturally thought well of him.
Before Storey left the stand, Anderson led him through a series of questions which forced Storey to agree that the man who he claimed had such a low reputation at the Boston bar had for many years been a member of the oversight committee of the law school, that Harvard not only had awarded Brandeis a Master of Arts in 1891 but also had admitted him to Phi Beta Kappa the year before. In the end, Storey appeared a somewhat diminished man, the representative of a closed and parochial social group that despised Brandeis for showing up the dishonesty of its financial leaders.
AND SO IT WENT, with witnesses appearing both for and against Brandeis—a total of forty-three in all, with McClennen testifying several times. The subcommittee brought its hearings to an end in late March, although the attacks on Brandeis continued. Sometimes the allegations raised appeared so frivolous that Brandeis could hardly believe that he had to respond to them. In early April both McClennen and Gregory told Brandeis that they had heard comments in the Senate cloakroom that he did not believe in a written constitution, to which another senator had replied that he had heard that Brandeis thought that the nine judges of the Supreme Court should not be restrained from responding to the demands of the people by any constitutional restriction. Both asked Brandeis to search his memory to see if he could identify the source of such comments. McClennen said that to the best of his knowledge, he could not recall his partner’s making any reference to the Constitution outside of one or two passages in Business—a Profession.
Two months after the hearings had started, Brandeis’s self-control began to slip, and he responded to Gregory in a letter that barely contained his anger at these “deliberate lies.” No, he had never said any such thing, and as everyone knew, he shared the same views of the Constitution as did Justice Holmes. It had been “sufficiently trying” during the hearings “to have lies and misrepresentations spread in regard to me without the opportunity of being heard by the Committee and the public, but to have these lies circulated privately after the hearings are closed seems to me not in accord with American conceptions of fair play.” Gregory took the letter to Senator Thomas Walsh, a Brandeis backer on the Judiciary Committee, who made sure it reached the right people.
By April, Brandeis, despite his close involvement in the struggle, had grown very frustrated. He had never before been engaged in a fight, especially one involving him so intimately, in which he had to remain publicly silent while others bore the burden of defending him. He had wanted to carry the attack to his detractors from the start, but Nutter and others had argued that it would merely serve as an excuse for greater and more virulent assaults on him. Brandeis had years earlier declared that “the man with the hatchet is the only one who has a chance of winning in the end,” and he characterized the approach suggested by Nutter and others as “apologetic.” His lieutenants in the press, especially Hapgood and the New Republic editors, did go on the attack for him, but he wanted to rally the progressives and make it into a fight between the forces of reform and those of reaction. He gave in only because Gregory, speaking for the administration, insisted that the battle had to be won politically. The episode over his alleged disbelief in the Constitution angered him immensely, and he told McClennen that he had strong misgivings that “the course pursued by my friends, and among other things, the delays are not only unwise but perilous.” After the battle he indicated that the worst aspect for him had been the absence of strong protests against these character slurs from those who supported him.
ON MONDAY, 3 APRIL, the subcommittee announced that it had approved the nomination 3–2. All three Democrats voted for Brandeis, while the two Republicans voted against. Senators Chilton and Fletcher signed the majority report, concurred in separately by Senator Walsh, while both Works and Cummins submitted lengthy and strongly worded reports opposing confirmation. Chilton went over the charges against Brandeis and provided the reasons the majority had not found them convincing; Works and Cummins, on the other hand, viewed the charges as credible and the rebuttals inadequate. Senator Walsh, however, put his finger on the heart of the case against Brandeis: “The real crime of which this man is guilty is that he has exposed the inequities of men in high places in our financial system. He has not stood in awe of the majesty of wealth…. He has been an iconoclast. He has written about and expressed views on ‘social justice.’ … [He believes] that a man’s a man and not a machine.” In a direct gibe at the established bar, whose leaders had criticized Brandeis for serving without pay, Walsh declared, “If this is professional misconduct then the bar needs regeneration.”
After nearly two months of hearings, a person reading the reports would not know more about Louis Brandeis’s fitness to be a justice than when the testimony had begun, and partisans on either side would not have changed their minds. If anything, the nomination had become even more controversial, but the subcommittee vote provided the first sign to Brandeis’s supporters that he would be confirmed.
The drama now moved to the full Judiciary Committee, made up of ten Democrats and eight Republicans. The chair of the committee, Charles Culberson, had served in the Senate for three terms, but the once vigorous Texan now suffered from a form of Parkinson’s disease; his hands shook almost constantly, and he had trouble speaking. While his mind remained acute, Culberson realized that he would have a heavy fight on his hands, and he doubted whether he had the strength to carry the administration’s side. Much to Brandeis’s discomfort, nothing seemed to happen for the next month.
Senators on both sides had reason to delay, and on many days so many members of the Judiciary Committee were out of town that there would not have been a quorum to convene. Insurgent Republicans, who might have favored Brandeis from the perspective of their reform inclinations, had no safe haven. The Progressive Party no longer existed, and men like Works and Cummins knew that their future power in the Senate relied on the goodwill of the Republican Party leaders, especially if the GOP should regain control of the upper chamber. Regular Republicans opposed Brandeis, but now with the Seventeenth Amendment in place they could no longer rely on being returned to the Senate by friendly state legislatures. They would have to seek votes, and they understood that Brandeis enjoyed considerable public popularity.*
Rumors flew about who supported the appointment and who opposed it, and as McClennen told Brandeis, “I take the favorable ones for recreation and the unfavorable as the basis for action.”
Conservative Democrats who opposed Brandeis faced a different dilemma. Southerners in the then-one-party South did not have to worry about reelection. The party nomination ensured an easy victory in the general election, and Brandeis was far less a hero in the South than in the northern states. But they also understood Wilson’s strategy and knew that if they voted against confirmation, the White House might be in Republican hands, and they would once again be in the minority after November.
Republicans and Democrats alike dallied until Gregory advised the president that the time had come for him to act. The attorney general arranged for Senator Culberson to write to Wilson. Normally, Culberson told the president, when a nomination goes to the Senate, the Justice Department provides all papers relating to the person, thus giving the Senate some insight as to why that man had been selected. But apparently the department had no papers in its files relating to Brandeis, and so Culberson would like the president to explain his choice.
Wilson wrote back the same day, praising Louis Brandeis at length. Appointments to the high court constituted one of the most important duties of a president, and he had named Brandeis “because I knew him to be singularly qualified by learning, by gifts, and by character for the position.” As to the many accusations that had been leveled against Brandeis in the previous months, the report of the subcommittee “has already made it plain to you and to the country at large how unfounded those charges were.” Indeed, they threw more light on the character and motives of those who had maligned the nominee than on Brandeis himself. No one who knew Brandeis could believe those allegations, and Wilson knew him.
“I have tested him by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and the public benefit, were involved.” In every test, the president declared, he had received from him “counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation.” Wilson did not bother answering specific charges, but did take a swipe at Brandeis’s attackers by noting that he had consulted men whose integrity he trusted, and that all had endorsed Brandeis’s qualifications.
In sum, Wilson told Culberson, he had chosen Brandeis because he knew no one more qualified, no one more committed to the public good, and no one “more imbued to the very heart with our American ideals of justice and equality of opportunity; of his knowledge of modern economic conditions and of the way they bear on the masses of the people…. This friend of justice and of men will ornament the high court of which we are all so justly proud.”
Culberson immediately released Wilson’s letter to the press, and Gregory’s strategy, to make this a matter of party discipline, picked up steam. Brandeis’s friends inundated members of the Judiciary Committee with letters urging confirmation. And in Boston, George Anderson and William Hitz imposed on Charles W. Eliot, the venerated former president of Harvard, to write a letter, and Eliot said all one could hope for. He had known Brandeis more than forty years, since his law school days, and his professional career had exhibited all the fine qualities of his youth—”a keen intelligence, quick and generous sympathies … and a character in which gentleness, courage, and joy in combat were intimately blended.” Eliot had never had cause to question Brandeis’s honesty, and believed that the Senate’s failure to confirm “would be a grave misfortune for the whole legal profession, the court, all American business, and the country.” “Next to a letter from God,” Ned McClennen told La Follette, “we have got the best.”
One by one wavering Democrats fell into line, but it took time and pressure from the White House. In May, Brandeis finally had an opportunity to help his own cause. Two members of the Judiciary Committee, Hoke Smith of Georgia and James Reed of Missouri, both conservative and both reportedly opposed to the nomination, accepted invitations to meet Brandeis at a reception Norman Hapgood gave at his New York apartment on Sunday evening, 14 May. Smith had already told a reporter that he had been “greatly prejudiced against Mr. Brandeis when the appointment was first announced,” and if he had had to vote that first day, he would have voted against confirmation. But both Smith and Reed, having seen the alleged devil in the flesh, announced their support.
Although Republicans still tried to derail the nomination, the unified Democrats now stood firm. On 24 May the Judiciary Committee, by a straight party vote of 10–8, approved the appointment in a meeting that lasted less than ten minutes. A week later the Senate went into executive session a little before 5:00 p.m. on 1 June, and a half hour later Vice President Thomas Marshall opened the doors to announce that Louis D. Brandeis had been confirmed to be an associate justice of the Supreme Court by a vote of 47–22. Only one Democrat, Francis Newlands of Nevada, voted against the appointment, while three Republicans, all insurgents, voted for Brandeis—Robert La Follette, George Norris of Nebraska, and Miles Poindexter of Washington. Wilson immediately signed the necessary documents and a few days later told a correspondent, “I never signed any commission with such satisfaction as I signed his.”
THE VICTORY CHEERED the progressives as little else had done for several years, and reform journals and the Jewish press carried one article after another praising “Mr. Justice Brandeis.” Jacob Schiff predicted that he would become “an adornment” to the bench, and called the confirmation “an honor to our people.” The first telegram Brandeis received came from Felix Frankfurter and Harold Laski, a political science professor, “GREETINGS AND WHAT GREETINGS.” Mailmen staggered under the weight of congratulatory letters that poured into the Boston office. One letter in particular deserves mention, because while confirmation had surely been a victory, reformers would now have to do battle without one of their strongest champions.
Although he had done all he could in the fight and had earnestly wanted to see Brandeis confirmed, Amos Pinchot told Brandeis, now that the battle had been won, he did not know whether to be sorry or to be glad:
Taking it all together, I don’t think it is unfair to say that, for the last ten years, you have been the most vital and disturbing element in our public life. You have worked quietly, doing the unpopular things that reformers have talked or written about. You have made more trouble for injustice than any other man. The passing of your work, both light cavalry and heavy artillery, the knowledge that no longer, when a cause needs a great militant advocate, you will step forward as you have heretofore to fight the exploiters and debauchers of America’s men, women and children, makes me feel pretty sad. As long as you were in private life, it seemed to me that, if any monstrous injustice should be attempted upon helpless people, they would not lack protection. You furnished to me personally, and to many people who are making the rather lonely fight against privilege, a kind of confidence that we will sorely miss.
Brandeis understood Pinchot’s point because, as he told him, he had those same feelings when Wilson had offered the nomination. He had felt bound to accept, even though he knew the losses a seat on the Court entailed. But “the doubts which I originally felt have been largely removed by the efforts of those who sought to defeat confirmation; and the responses which came from those less favored by fortune. The struggle was certainly worth while. It has defined the issues.” And, he added, he hoped he could render service “of real value” while on the bench.
From all reports the calmest man in the country during this time may have been Brandeis himself. The day after the vote he left his home in Dedham at the same time he usually did and caught the 8:15 train into Boston. To fellow passengers, trainmen, and people who stopped him on the way from the station to his office to offer congratulations, he simply said, “Thank you.” At the office he found two telegrams that must have touched him greatly. One, from Attorney General Thomas Gregory, urged Brandeis to come to Washington over the weekend so he could be sworn in on Monday morning, a suggestion to which Brandeis responded with alacrity. The other came from his longtime friend and now-colleague, Oliver Wendell Holmes, and had but one word: “WELCOME.”
* According to Henry Morgenthau, who had just stepped down as American ambassador to Turkey, he and Brandeis met on 1 April 1916 to discuss the question of transferring additional sums to the Palestinian colonies. The two men’s schedules had been so tight that the only time and place that gave them some time to talk was while they both changed trains in New London, Connecticut. Morgenthau told Brandeis that he thought the Senate would confirm him, but that immediately after taking his seat, he should declare himself a candidate against Henry Cabot Lodge for the U.S. Senate from Massachusetts. Morgenthau believed that Brandeis could easily defeat Lodge and, in doing so, would help carry the state for Wilson in the fall election.
Brandeis turned Morgenthau’s suggestion down. “Brandeis was obviously afraid to act on my recommendation,” Morgenthau later wrote. “He said it would be ‘undignified’ for him to run for office while holding a seat on the Supreme Bench.” Morgenthau believed that the Senate would have been a better place for Brandeis to have exercised his great abilities than the “quasi-cloistered obscurity of the Supreme Court.”