With three Jews currently seated on the Supreme Court of the United States and a fourth recently nominated by President Barack Obama, it appears that anti-Semitism is a nonissue when it comes to the American judicial confirmation process.
Such was not always the case, according to Paul Finkelman, a specialist in American legal history, constitutional law and race and Ariel F. Sallows Visiting Professor of Human Rights Law at the College of Law,University of Saskatchewan. He will be a visiting professor at the University of Pittsburgh School of Law in the spring of 2017.
Finkelman was in town earlier this month for a three-day program at Adat Shalom in the North Hills in celebration of the centennial anniversary of Louis D. Brandeis rising to the U.S. Supreme Court.
The program, which was sponsored in part by the Pittsburgh Area Jewish Committee and the Jewish Federation of Greater Pittsburgh, was a project of the adult education committee of Adat Shalom, chaired by Marshall Dayan. David Wecht, justice of the Supreme Court of Pennsylvania, was an honorary chair of the event.
“When I heard it had been 100 years since the first Jewish member of the Supreme Court had been appointed, I realized it was a pretty big deal,” said Dayan, an assistant federal public defender and an adjunct professor at the University of Pittsburgh School of Law.
The timing of the program was fortuitous, he said.
“When we started planning this, I had no idea that Justice [Antonin] Scalia was going to drop dead,” Dayan said. “We lost a great justice, but the fact that now there is a vacancy on the U.S. Supreme Court and that the president has nominated a replacement who just happens to be Jewish brings more attention to it.”
Brandeis was nominated to the Supreme Court in January 1916 and was confirmed four months later. The fact that he was Jewish contributed to the delay in his confirmation, Finkelman said in an interview.
“There was some measure of anti-Semitism swirling around his appointment,” Finkelman said. “And to some extent, his nomination was problematic to some in the Jewish community as well.”
The majority of influential Jews in the early part of the 20th century were conservative businessmen who tended to vote Republican, Finkelman explained.
“They didn’t particularly like [President Woodrow] Wilson [who nominated Brandeis],” he said. Wilson was a Democrat and was running for re-election that year.
To compound the problem, Brandeis was the president of the Zionist Organization of America at a time when Zionism was not popular among many in the Jewish establishment, Finkelman added. And in 1912, Brandeis authored a book, “Other People’s Money and How Bankers Use It,” which did not garner him favor among the Wall Street crowd.
“He was the people’s lawyer and a social activist,” Finkelman said.
In 1908, Brandeis had successfully argued the case of Muller v. Oregon before the Supreme Court, persuading the justices to uphold the regulation of hours that women could work in the Oregon laundry industry.
“He made a compelling argument that protecting the health of especially women workers is vital to the welfare of the nation,” Finkelman said. “The Conservatives didn’t like this.
“And, on top of that,” Finkelman continued, “he’s Jewish.”
And yet, by the end of the 125 days between Brandeis’ nomination and his confirmation — the longest Supreme Court justice confirmation process in history — the fact that he was Jewish was raised just one time, said Finkelman. A senator remarked that he had known Brandeis for a year before he knew he was Jewish, implying that Brandeis was deceitful for not mentioning the fact sooner.
“In the end, he’s confirmed, and many people who were expected to vote against him, vote for him or don’t vote at all,” Finkelman said. “Some people said that Wilson nominated him because he was Jewish and Wilson was courting the Jewish vote.”
In the 100 years since Brandeis’ confirmation, Jews have sailed through the Supreme Court confirmation process smoothly, with two notable exceptions, neither related to Jewish identity.
When Douglas Ginsburg was nominated by Ronald Reagan in 1987, he was forced to withdraw from consideration after it came to light that he had smoked marijuana with his law students while at Harvard.
The other incident occurred when Lyndon Johnson sought to nominate sitting justice Abe Fortas to be chief justice after Earl Warren resigned from the Court. Fortas was forced to resign after it was revealed that he had taken an honorarium from a foundation that had been established by someone who had a case pending before the Supreme Court.
“Neither of these had to do with being Jewish but with personal behavior that was not acceptable,” Finkelman said.
Since Brandeis’ confirmation, the Court has been open to other minorities, including people of color, and to women. Whether Brandeis is responsible for breaking down barriers for others is a matter of perspective, Finkelman said.
“The first black justice, Thurgood Marshall, was confirmed 50 years later,” he noted. “I can’t say that Brandeis had anything to do with race other than to say that whenever an excluded minority breaks down a barrier, it makes it easier for another excluded minority to break down a barrier. It proves that ethnic discrimination is unacceptable.”
Despite objections from Republicans and threats to stall confirmation of current nominee Merrick Garland, Finkelman thinks there is a chance he nonetheless will be confirmed, making him the fourth Jew on the current Supreme Court.
“There have been tons of justices who were put on the court in an election year, including Brandeis in 1916, when there was no guarantee that Wilson would be re-elected,” Finkelman said.
“If Hillary Clinton gets elected, I think it is entirely possible that the Republicans in the Senate will confirm Garland the next day. He’s a very moderate Democrat. There’s nothing radical about him in any way. And to the extent Jews are white, he’s a white man. There is the fear that Hillary Clinton would nominate a woman of color.”
Garland’s age also could play in his favor, as he is in his 60s, meaning he would be serving less time than a younger nominee.
“If I were a Republican strategist, I would say, ‘Let’s immediately put this guy on the Court,’” said Finkelman. “He’s older than who Hillary Clinton would nominate, and he’s moderate; on some issues, he’s conservative. There is nothing in Garland’s record that the Republicans can object to.”
If Garland is confirmed, the Court will be composed of four Jews and five Catholics, Finkelman noted.
“I think that indicates on one level that no one cares about religion and ethnicity of the justices, within certain parameters,” he said. “Now, if there were four Muslims on the court, people would be freaking out. But Jews now can run for office and hold office, and nobody thinks too much about it anymore.
“No one has noticed or cares that Bernie Sanders is Jewish,” he added. “It’s a complete nonissue in the election. I think that is an incredibly important part of the United States, although it doesn’t mean there aren’t anti-Semites out there. But it does show that the mainstream American culture accepts Jews.”
Toby Tabachnick can be reached at email@example.com.