Reading Charles Beard’s intro to Alfred Lief’s book, The Social and Economic Views of Mr. Justice Brandeis (1930) today, I was somewhat surprised by how punishing his nomination process was. Not being a legal historian, I had thought that partisan rancor over judicial nominations to SCOTUS was a more recent phenomenon. For an international lawyer it is fascinating to see Elihu Root trying to shoot down the nomination.
INTRODUCTION: A BACKGROUND.
ONE evening in 1916, at a dinner party given by a certain rich man in New York City, a former cabinet officer, then a successful practising attorney, made a long discourse on what he called the “outrage” committed by President Wilson in nominating Louis D. Brandeis to a place on the Supreme Bench. With the outward calm of a gentleman determined to control his feeling, he expounded the reasons for his vigorous opposition to this stroke of state. He was a Republican and Mr. Brandeis was a Democrat, but of course he was sure that this fact had “nothing to do with the matter.” The truth was that Mr. Brandeis had been active in politics; he had served as counsellor and advisor for labor unions, reform leagues, and other “radical” organizations pressing for judicial rulings this way or legislation that way; he had expressed decided opinions on most of the great issues likely to come before the Supreme Court for adjudication, especially rate regulation; in arriving at decisions as a judge he would not follow the law and the precedents but would be swayed by his already matured convictions; and finally Mr. Brandeis had been guilty of violating the ethics of the bar. Fortunately, concluded the orator, “all the best people in business and the legal profession” were standing solidly together against the nomination, and the machinations of the wicked might be defeated. With an air of triumph he looked around at his dining colleagues and quite naturally received a salvo of approval.
For strange reasons, not necessary to recount here, there happened to be among the company a professor grown weary of teaching freshmen, listening to baccalaureate sermons, and observing commencement ceremonials. Possessed by a disputative temper, derived probably from much study of Socrates, the professor applied the elenchus to the statesman’s oracular propositions. “You would admit,” he ventured, “that quite a number of Supreme Court judges were active in politics previous to their elevation. John Marshall was an ardent Federalist; he was appointed an envoy to France by a Federalist President; he ran for Congress on the Federalist ticket and after a campaign of extreme virulence was elected; later he served as Secretary of State; and then was made Chief Justice by a Federalist President. He had certainly expressed forceful opinions on many of the great issues likely to come before him as judge and it was well known that he entertained positive views as to the nature of the Union and the rights of property, which would control his judicial decisions. In fact, it was principally for this reason that he was selected for the Court at the very moment when the Federalists were being driven out of the elective branches. And as for following the law and precedents, Marshall’s greatness lay in his superb ability to make both, for the law was vague and there were but few precedents to serve as guides. Taney likewise was active in politics before Jackson nominated him—Democratic politics; he entertained decided views—in the main contrary to Marshall’s; it was for this reason that he was selected. Other examples are not necessary. And then, by the way, what are the ethics of the bar?” At that point the host, who had inherited his fortune and looked with genial amusement on both lawyers and professors, saw that the temperature was rising and suggested that the company adjourn to the library for coffee.
It is difficult at this distance to imagine the bitterness of the battle that raged over the nomination of Mr. Brandeis to the Supreme Court. A vast array of respectable citizens attacked it from every angle. Seven former presidents of the American Bar Association, including William H. Taft, Joseph H. Choate, and Elihu Root, vigorously opposed it. A delegation representing Boston eminence appeared before the Senate committee to assail his public and private life and demand his exclusion from the bench. With a keen eye for tactics, his critics concentrated on his alleged infractions of professional ethics, accused him of making “false and misleading statements,” representing “interests opposed to public welfare,” and resorting to “duplicity in the performance of his professional duties.” From January until Spring the battle raged. Even the Democrats were disconcerted by the heavy and continuous fusillade. For a time it looked as if O’Gorman of New York, Reed of Missouri, Shields of Tennessee, and Smith of Georgia would vote against reporting the nomination favorably to the Senate.
So high did the waves of passion toss that President Wilson was moved to write a special letter to the chairman of the judiciary committee urging immediate and favorable action. The investigation, he insisted, had demonstrated that the charges against Mr. Brandeis were “unfounded,” that they “threw a great deal more light on the character and motives of those with whom they originated than upon the qualifications of Mr. Brandeis.” They had come largely from men who hated him because he refused to promote “their own selfish interests” and from people prejudiced and misled by propaganda. Such, the President said, were the conclusions to which he had come after making personal inquiries into the allegations that had been so freely bruited abroad. “The propaganda in this matter,” he continued, “has been very extraordinary and very distressing to those who love fairness and value the dignity of the great professions.”
Having disposed of the business of professional ethics, President Wilson proceeded to give his grounds for selecting Mr. Brandeis in the beginning. “I nominated Mr. Brandeis for the Supreme Court,” he said, “because it was and is my deliberate judgment that, of all the men now at the bar whom it has been my privilege to observe, test, and know, he is exceptionally qualified. 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 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. This friend of justice and of men will ornament the high Court of which we are all so justly proud. I am glad to have had the opportunity to pay him this just tribute of admiration and of confidence; and I beg that your committee will accept this nomination as coming from me, quick with a sense of public obligation and responsibility.” In the end the nomination was confirmed by a vote that was almost strictly partisan in character and the outcome may be principally attributed to the resolute stand of President Wilson.