Jewish Justices of the Supreme Court: From Brandeis to Kagan
Brandeis University Press
Who was the first president with the courage to nominate a Jew for a Supreme Court vacancy? And who was the potential nominee?
Well-educated Jewish Americans would reply that it was President Woodrow Wilson with his nomination of Louis Brandeis.
David Dalin’s wonderful little volume teaches that the first Jewish putative nominee was Judah P. Benjamin.
Benjamin was a Sephardi Jew who had a brilliant career as a senator from Louisiana before resigning to serve as the Confederacy’s attorney general, secretary of war and secretary of state. After the Confederacy’s defeat, he fled to England where he practiced law and wrote the classic hornbook, Benjamin on Sales.
Benjamin previously was offered a Supreme Court nomination by President Millard Fillmore in 1852 before taking his Senate seat. Benjamin turned down the offer because he was anticipating Senate service and a lucrative legal practice that included Supreme Court appearances.
Dalin’s review of the history of Jewish Supreme Court justices begins with other fascinating accounts of the Jewish candidates who preceded Brandeis.
Louis Marshall, the leader and spokesman for American Jewry in the early 1900s and then a Republican, actively sought a Supreme Court appointment in 1910, when William Howard Taft was president. Dalin recounts that Taft, a dedicated Republican, explicitly rejected pleas on Marshall’s behalf from Jewish Republicans because Marshall’s partner in their Jewish law firm was a well-known Democrat.
Sparkling historical nuggets abound.
Who knew that Louis Brandeis, castigated for his Jewish ancestry and well-known as an ardent Zionist, loved ham? His brother Alfred would regularly dispatch hams to Washington from Louisville, and the justice would respond with expressions of enormous gratitude. Jewish religious observance played no role in Brandeis’ life or even at his death. No Kaddish was recited at his funeral, and he was, as he instructed, cremated.
Dalin describes, by contrast, the Jewish religious commitment of Benjamin Cardozo, who served from 1932 until his death in 1938 together with Brandeis. Cardozo remained all his life a member of New York’s celebrated Spanish-Portuguese synagogue Shearith Israel. He spoke persuasively against mixed-gender seating in a June 1895 meeting of the synagogue’s electors, thereby ensuring it remained an Orthodox synagogue.
Cardozo did not serve pork or shellfish at his home and was shocked to be fed ham as a guest of Brandeis.
Meantime, Dalin’s disclosure of Justice Felix Frankfurter’s obliviousness to religious observance is not surprising. Dalin reports that Frankfurter’s mother did not attend her son’s wedding because, in her words, he “had chosen a shiksa as his bride.”
On occasion, Dalin is a little too eager to glorify the accomplishments of Jewish justices.
For example, future Justice Abe Fortas was assigned to represent Clarence Earl Gideon, the Florida prisoner whose name resounds in constitutional history because of Gideon v. Wainwright. That unanimous Supreme Court decision overruled previous precedent and declared that any indigent person charged with a felony in a state court was entitled to the assistance of a court-appointed attorney.
Dalin reports that the court appointed Fortas, then a leading bar member, to represent Gideon. While Fortas won the case, the court needed no convincing, and his argument — passionate or cerebral — was not decisive or even influential in what was a slam-dunk case.
Nathan Lewin is a Washington attorney who has argued numerous cases before the Supreme Court.