Is It Time for a Jewish Supreme Court Justice?
JACOBS, JEROLD L.
Is It Time for Jewish Justice? JEROLD L. JACOBS the recent nomination of Judge David H. Souter to the United States Supreme Court is a reminder that the appointment of a Jewish justice is long...
...With the integrity and prestige the Court at issue, Fortas resigned from the bench, closing out the 53-year history of the Court's Jewish seat...
...By the time he was appointed to the high court, he was a successful corporate fawyer, trust-buster, people's attorney and champion of the right of privacy...
...In the 200-year history of the Supreme Court, only these five of 104 justices have been Jewish...
...11 Baker, pp...
...Although Cardozo came from an Orthodox family, he was, like the other Jewish justices (Goldberg excepted), largely a secular Jew...
...8> Endnotes 1 See Robert A. Burt, Two Jewish Justices (Berkeley: Univ...
...JEROLD L. JACOBS the recent nomination of Judge David H. Souter to the United States Supreme Court is a reminder that the appointment of a Jewish justice is long overdue...
...The nature of much of the opposition to Brandeis is reflected in a letter former President William H. Taft wrote to a close friend and confidant, GusJ...
...is also Catholic...
...Johnson first broached the subject with Fortas the very day that Goldberg resigned...
...Two Catholics now sit on the Court—Antonin Scalia and Anthony Kennedy...
...His family proudly traced its ancestry back to Abraham de Lucena, one of the first Jews to set foot on American soil in 1655...
...Today these memorable dissents are often noted for their prophetic nature—both in language and in the future direction of the law...
...Initially opposition was based on charges of LBJ's cronyism, accumulated hostility to the Warren Court and Fortas's posture on the more controversial issues...
...This was also true for two weeks in 1939, when both Cardozo and Frankfurter sat on the Court...
...Then came charges of judicial impropriety by Fortas's continuing active counseling of LBJ while on the Court...
...According to Frankfurter's reminiscences, he was not, in his adult years, an observant Jew: There was a time as a boy when I was religiously observant....At home we were an observant, not an Orthodox, but observant Jewish family as a kind of a family institution, a kind of emotional habit...
...the vote in the full Senate was 47 to 22...
...In the ensuing 19 years, Fortas and his firm developed an extraordinary reputation not only for success in representing clients before federal" agencies but also in civil rights and civil liberties litigation...
...Perhaps it is more pertinent to ask if it is now time to appoint another Jew to the Court...
...Brandeis and Frankfurter, liberal and conservative, both represent the American Jewish judicial tradition...
...I left the service in the middle of it, never to return to this day...
...12 "West Virginia Board of Education v. Barnette," U.S...
...Moreover, a case can be made, as Judge Stephen Reinhardt has noted, that Jews were discriminately excluded from consideration for Supreme Court appointments at least during the Nixon years, when four of the last eight appointments were made.15 Thus, affirmative action to redress this discriminatory history may be appropriate...
...He was born in Vienna and came to the United States at the age of 12, speaking no English...
...In 19.61 President Kennedy tapped him for Secretary of Labor and from there he went to the Court...
...6 A. L. Todd, Justice On Trial (New York: McGraw-Hill, 1964), pp...
...According to Nejtsweek (November 9, 1987, p.46): Though his religion was a factor in his nomination...Ginsburg is not very devout...
...He has been called the "quintessential insider" on the American scene—a "convert...more zealous than one born to the faith...
...Although he never became a leader on the Court—he wrote more dissents than majority opinions—he would nevertheless be on anyone's list of great justices...
...But Johnson persisted, and Fortas eventually relented...
...Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime...
...However, that was not the end...
...There are a number of Jewish members of the bench and bar who are fully qualified to sit on the high court...
...Goldberg was the son of Russianjewish immigrants...
...For example, until 1979, no Jew had ever been appointed to the federal bench in the Ninth Circuit, the largest circuit in the nation, which includes California...
...Court of Appeals Judge Douglas H. Ginsburg...
...Although none of the five Jewish justices was especially knowledgeable about Jewish law and ethics, their moral sympathies were unconsciously—and sometimes consciously—shaped from the basics of Jewish law and ethics: equal justice for all and compassion for the oppressed...
...With Goldberg, the liberal wing of the Court, led by Chief Justice Earl Warren, had five solid votes for the first time...
...I hope he weighs the reasons why choosing a Jewish justice would be in the country's best interests...
...When UN Ambassador Adlai Stevenson died, Johnson used his vaunted persuasive abilities to convince Justice Goldberg to resign from the Supreme Court so that Johnson could appoint Fortas in his place...
...When President Woodrow Wilson nominated Louis D. Brandeis to the Court in 1916, a storm of protest arose...
...Paul Freund has described Cardozo as a "shy, ruminating, self-mocking, morally sensitive, preternaturally acute, large-visioned" man.9 He was not only a brilliant practitioner but also a legal philosopher...
...Next came the revelation that Fortas had accepted a $15,000 lecture fee to conduct a university seminar...
...Perhaps this was on President George Bush's mind when he put District of Columbia appeals court judge Laurence H. Silberman on his short list...
...356-368...
...319, 1943, p. 624 ff...
...Hal Scott [a Harvard Law School professor and long-time friend] describes him as a 'cultural Jew* and 'that in moderation.'" In the wake of a furor over his marijuana smoking, Ginsburg withdrew his name from consideration less than two weeks later—before confirmation hearings ever began...
...For 18 years Cardozo served on New York's highest court before President Herbert Hoover appointed him to the Supreme Court in 1932...
...He was, however, a dedicated, if restrained, Zionist...
...Goldberg served less than three years.-He resigned when Lyndon Johnson urged him—strong-armed him—to become U.S...
...Only three days after Justice Frankfurter retired in 1962, John Kennedy nominated Secretary of Labor Arthur Goldberg to fill what had clearly become the Supreme Court's Jewish seat...
...Since 1969—when Justice Abe Fortas resigned—eight vacancies have been filled on the Court—but none by a Jew.2 The first Catholic appointed to the high court was Roger B. Taney—in 1836...
...Cardozo was the only Jewish justice of Sephardic origin...
...7 Leonard Baker, Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984), p. 366...
...8 Harlan B. Phillips, Felix Frankfurter Reminisces (New York: Reynal, 1960), pp...
...Important as these opinions were, Brandeis is best remembered for his support of civil liberties, where he often joined his close friend, Oliver Wendell Holmes, in dissent...
...Although Brandeis was an ardent Zionist—in 1914 he became national chairman of the Provisional Committee for General Zionist Affairs, the forerunner of the Zionist Organization of America—he was completely secular...
...It has now been more than 20 years since a Jew sat on the Supreme Court...
...His The Nature of the Judicial Process (Yale Univ., 1921) and The Growth of the Law (Yale Univ., 1924) are still studied in law schools...
...3, pp...
...Before his appointment all members of the Court had been Protestant...
...He did not attend religious services or observe Jewish religious practices, nor was he knowledgeable in Hebrew or the Talmud.4 Nevertheless, Brandeis increasingly identified himself with Jewish history, culture and causes beginning in 1910.5 After a four-month struggle over his Supreme Court nomination, much of which focused on the fact that Brandeis was Jewish, he was finally confirmed...
...9 Paul Freund, "Homage to Mr...
...But in the end, Bush struck him in favor of Souter...
...For example, in 1969 he served as the founding president of the International Association of Jewish Lawyers and Jurists...
...Bush is likely to have other such chances...
...I didn't go to the synagogue even as a young man except on holy days and particularly on Yom Kippur....Certainly it was not later than my junior year in college...while I was in the midst of a Yom Kippur service that I looked around as pious Jews were beating their breasts with intensity of feeling and anguishing sincerity and I remember...thinking that it was unfair of me, a kind of desecration for me to be in the room with these people to whom these things had the meaning they had for them when for me they had no other meaning than adhering to a creed that meant something to my parents but had...ceased to have inner meaning [for me...
...All sat during the 53 years between 1916 and 1969...
...Fortas initially declined with a "heart full of gratitude," reiterating his desire to remain in private practice and his belief that he would be of more help to the President if he were unencumbered by official duties...
...Justices Cardozo, Goldberg and Fortas (the first time) were confirmed without any fuss, antisemitic or otherwise...
...5 Lewis J. Paper, Brandeis (Englewood Cliffs, N.J.: Prentice-Hall, 1983), pp...
...3 Benjamin declined the nomination...
...The eloquence and craftsmanship of his opinions give them enduring value, even as dissenting views...
...Would reestablishing a Jewish Wseat on the Supreme Court run counter to the historic opposition of American ._I Jews to all quota systems...
...He resigned in 1968 and returned to the private practice of law...
...The nomination came so close to the 1968 presidential elections (which the Republican Party expected to win) that it had major political implications at the outset...
...Unlike the other Jewish justices, Goldberg was active in Jewish organizations throughout his life...
...1, 1979, p. 3. 10 Burt, p. 42...
...He died six years later...
...2345, 2353...
...Goldberg established a national reputation in the labor field as a bright, industrious and fair-minded union lawyer...
...ambassador to the United Nations...
...Fortas soon came under fire for entering a paid advisory relationship in 1966 with the family foundation of Louis E. Wolfson, the multimillionaire industrialist who would later be imprisoned for stock manipulation...
...Karger: Your description of the outburst against [Brandeis] when nominated...is an indication of the satanic skill in his selection...
...After working for more than 10 years in the upper echelons of Roosevelt's New Deal, he became a founding partner in what would become one of the country's best known law firms, Arnold, Fortas and Porter...
...199-204...
...Finally, after weighing a number of factors, including Frankfurter's Jewishness, his role as a long-time personal advisor and confidant of FDR, his sterling reputation as a Harvard professor, author and legal mind, the fact that Brandeis was still on the Court, and the emerging Nazi menace in Europe, President Roosevelt nominated Frankfurter to the Court on January 5, 1939...
...Frankfurter, another brilliant student, taught for 25 years at the Harvard Law School before being appointed to the court in 1939...
...As a liberal and a judicial activist, Goldberg's voting record on the Court differed markedly from his predecessor, Frankfurter...
...That percentage has undoubtedly increased in the ensuing 20 years...
...According to a recent biography of Benjamin, "Fillmore was turning to the leading lawyer in the Senate in the probability that he would be confirmed, since the Senate could not reject one of its own members from the deep South, albeit newly elected...
...Within days after Goldberg's resignation, Johnson nominated Abe Fortas to fill the Jewish seat on the Court...
...This attitude can perhaps best be illustrated in his dissent in the second flag salute case, the only opinion in which he mentioned his Jewish heritage.12 Voting to uphold a state's right to require schoolchildren who were Jehovah's Witnesses to salute the flag—against their claim that this violated their rights of free speech—Frankfurter wrote: One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution...
...The answer is "yes...
...From 1932 to 1938, there were two Jewish justices sitting at the same time—Brandeis and Cardozo...
...Frankfurter was a conservative not so much in substance as in procedure: He preached the virtues of judicial restraint...
...While the first Jew—Louis D. Brandeis— was not nominated for a seat until 1916, in February 1853, President Millard Fillmore approached Judah P. Benjamin, then a senator from Louisiana, about accepting a nomination for a seat on the Court promised to a Southerner...
...During his relatively short service on the Court, he generally joined Brandeis in liberal opinions defending free speech, press and assembly and supporting economic regulation by Congress...
...His confirmation hearing lasted three days, during two of which speakers from various crackpot organizations made undisguised antisemitic statements.7 However, the Senate ignored the bigotry and he was unanimously confirmed by voice vote...
...Although Frankfurter was expected to be a liberal justice, he became a leader of the Court's conservative wing, often outvoted in a five-four split...
...Frankfurter was the only foreign-born Jew to have served on the Supreme Court...
...There he was unsuccessful in extricating the country from the Vietnam War, as he had hoped to do...
...Taney was confirmed as Chief Justice with no noticeable focus on, or concern about, his religion...
...In the view of many scholars, Goldberg's arrival on the Court marked the beginning of the "Warren Court...
...The vote in the Senate Judiciary Committee was ten to eight...
...Fortas's promising career on the Court was cut short beginning on June 13, 1968, when Chief Justice Warren informed President Johnson that he intended to retire...
...5 Eli N. Evans, Judah P. Benjamin: The Jewish Confederate (New York: Free Press, 1988), p. 83...
...More than 10 percent of the American bar is Jewish1—among the more distinguished members of the bar, the Jewish percentage is far higher...
...Johnson saw this as his opportunity to elevate Fortas to Chief Justice...
...Brandeis, a brilliant and precocious student, entered Harvard Law School when he was only 18 years old, without having attended college...
...In 1983 he received the National Federation of Jewish Men's Clubs' Citation and Award for Distinguished Service to Jewry and Judaic Ideals...
...By leaving the synagogue I did not, of course, cease to be a Jew or cease to be concerned with whatever affects the fate of Jews....I'm a reverent agnostic.8 ^ach of the five Jewish justices has been a major judicial force on the Court, and each is generally regarded as having made a significant contribution to American jurisprudence—even Goldberg and Fortas, whose judicial services were short...
...It could be argued that there is a distinctively Jewish contribution to be made to American legal and ethical deliberations, apart from the fruits of the so-called Judeo-Christian tradition...
...When Justice Cardozo died in July 1938, Franklin Roosevelt delayed for several months filling what had become the "scholar's seat" on the Supreme Court (previously held by Joseph Story, Holmes and Cardozo for almost half the Court's existence...
...Thus, this nomination was so short-lived that it cannot be regarded as more than a false start and prelude to the subsequent nomination and confirmation of Judge Anthony Kennedy...
...Although Fortas came from an Orthodox family, he was a secular Jew...
...But religion-blind judicial appointments have tended, historically, to be blind to the merits of Jewish candidates...
...Fortas's nomination as Chief Justice ran into a filibuster on the Senate floor, where a cloture motion failed by a wide margin...
...They generally succeeded each other to what became known as the 'Jewish seat...
...Once on the Court, his opinions sup porting federal economic regulation became an important factor in reversing the Court's later tendency to strike down New Deal economic and social legislation as unconstitutional intrusions into industry and private lives...
...Did Fortas's resignation in disgrace result in the loss of the Jewish seat...
...2 In November 1987, after the Senate rejected President Reagan's nomination of Judge Robert Bork to the Court, the President immediately nominated U.S...
...The intelligent Jews of this country are as much opposed to Brandeis's nomination as I am, but there are politics in the Jewish community, which with their clannishness embarrass leading and liberal and clear-sighted Jews....If it were necessary, I am sure [Brandeis] would have grown a beard to convince them that he was a Jew of Jews.6 Since Brandeis's appointment, four other Jewish justices have sat on the Court—Benjamin N. Cardozo, Felix Frankfurter, Arthur J. Goldberg and Abe Fortas...
...4 Alpheus Thomas Mason, "Louis D. Brandeis," in The Justices of the United States Supreme Court (New York: Chelsea House, 1980), vol...
...of California, 1988), p. 64, note 14: "[In 1970] Jews comprised about 10 percent of the legal profession generally, according to an estimate provided by the American Section of the International Association of Jewish Lawyers and Jurists...
...2045-2046...
...Fortas asked LBJ to withdraw his nomination, which he did...
...78-79...
...His father, who sold produce from a wagon pulled by a blind horse, died when Goldberg was eight years old...
...Former Justice William J. Brennan,Jr...
...Justice Cardozo," Cardozo Law Review, vol...
...But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic....As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard...
...Concepts of American pluralism, fair play, self-pride and an awareness of the unique substantive contributions that Jewish justices have made and can make to American constitutional law should impel us to speak out forcefully for the appointment of a Jewish lawyer to the Supreme Court...
...10 Although Frankfurter never denied that he was a Jew, his Jewishness lacked any spiritual fervor or "inner meaning...
...289-291...
...Fortas also served as an intimate counselor to his good friend, Lyndon Johnson...
...13 Stephen Reinhardt, "Jewishness and Judging: A Judge's Thoughts on Two Jewish Justices," Cardozo Law Review, vol...
...he graduated at 20 with the highest scholastic average in the law school's history...
...Reports, vol...
...This was not so with Frankfurter...
...Jewish candidates reflect a variety of philosophical viewpoints despite a common heritage...
...This consideration does not necessarily translate into a liberal judicial position...
...10, 1989, pp...
...One positive effect of reestablishing a Jewish seat on the Court would be to continue to make available to constitutional jurisprudence and decision-making the uniquely Jewish insights and backgrounds that Jewish justices have historically provided...
Vol. 15 • October 1990 • No. 5
