Louis Brandeis - Nominated To The Supreme Court

Nominated To The Supreme Court

On January 29, 1916, Wilson "surprised the nation" by nominating Brandeis to become a member of the U.S. Supreme Court. However, his nomination was bitterly contested and denounced by conservative Republicans, including former president (and future Chief Justice) William Howard Taft, whose credibility was damaged by Brandeis in court battles and at one point calling him a "muckraker." Further opposition came from the legal profession, including former Attorney General George W. Wickersham and former presidents of the American Bar Association, such as ex-Senator and Secretary of State Elihu Root of New York, claiming he was "unfit" to serve on the Supreme Court.

The controversy surrounding Brandeis's nomination was so great that the Senate Judiciary Committee, for the first time in its history, held a public hearing on the nomination, allowing witnesses to appear before the committee and offer testimony both in support of and in opposition to Brandeis's confirmation. While previous nominees to the Supreme Court had been confirmed or rejected by a simple up-or-down vote on the Senate floor—often on the same day on which the President had sent the nomination to the Senate—a then-unprecedented four months lapsed between Wilson's nomination of Brandeis and the Senate's final confirmation vote.

"What Brandeis's opponents most objected to," write Klebanow and Jonas, "was his 'radicalism'." The Wall Street Journal wrote, "In all the anti-corporation agitation of the past, one name stands out . . . where others were radical, he was rabid." And the New York Times also felt that having been a noted "reformer" for so many years, he would lack the "dispassionate temperament that is required of a judge." Justice William O. Douglas, many years later, wrote that the nomination of Brandeis "frightened the Establishment" because he was "a militant crusader for social justice."

According to legal historian Scot Powe, much of the opposition to Brandeis' appointment also stemmed from "blatant anti-semitism.". Taft would accuse Brandeis of using his Judaism to curry political favor, and Wickersham would refer to Brandeis' supporters (and Taft's critics) as "a bunch of Hebrew uplifters." Senator Henry Cabot Lodge privately complained that "If it were not that Brandeis is a Jew, and a German Jew, he would never have been appointed"

However, those in favor of seeing him join the court were just as numerous and influential. Supporters included attorneys, social workers, and reformers with whom he had worked on cases, and "they testified eagerly in his behalf." Harvard law professor Roscoe Pound told the committee that "Brandeis was one of the great lawyers," and predicted, writes Todd, that he would one day rank "with the best who have sat upon the bench of the Supreme Court." Other lawyers who supported him pointed out to the committee that he "had angered some of his clients by his conscientious striving to be fair to both sides in a case."

In May, when the Senate Judiciary Committee asked the Attorney General to provide the letters of endorsement that traditionally accompanied a Supreme Court nomination, Attorney General Gregory found there were none. President Wilson had made the nomination on the basis of personal knowledge. In reply to the Committee, President Wilson wrote a letter to the Chairman, Senator Culberson, testifying to his own personal estimation of the nominee's character and abilities. He called his nominee's advice "singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation." He added:

I cannot speak too highly of his impartial, impersonal, orderly, and constructive mind, his rare analytical powers, his deep human sympathy, his profound acquaintance with the historical roots of our institutions and insight into their spirit, or of the many evidences he has given of being 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 upon the masses of the people, or of his genius in getting persons to unite in common and harmonious action and look with frank and kindly eyes into each other's minds, who had before been heated antagonists.

A month later, on June 1, 1916, the Senate officially confirmed his nomination by a vote of 47 to 22. Forty four Democratic Senators and three Republicans (La Follette, Norris, and Poindexter) voted in favor of confirming Brandeis. Twenty one Republican Senators and one Democrat (Francis G. Newlands) voted against his confirmation.