100 years ago, Brandeis faced longest confirmation

March 12, 2016 GMT

WASHINGTON (AP) — No one endured a longer time between nomination and confirmation as a Supreme Court justice than Louis Brandeis, the famed lawyer, political reformer and first Jewish justice.

That could change soon if Republicans maintain their resolve not to confirm or even consider anyone President Barack Obama nominates to the Supreme Court to take the place of Justice Antonin Scalia, who died in February.

But the 100th anniversary of Brandeis’ nomination offers a propitious moment to look back on his choice by President Woodrow Wilson and the vociferous opposition of political conservatives and business leaders that followed, some of it laced with anti-Semitism.


One hundred twenty-five days elapsed between Brandeis’ nomination and confirmation, including 19 days of hearings by a special Senate subcommittee in which Brandeis opponents “kept trying to find something against him and they couldn’t,” said Brandeis biographer Melvin Urofsky.

Wilson, a Democrat, was facing re-election in 1916, but he had a Senate controlled by his own party. The high court opening then also resulted from the untimely death of a Republican appointee, Justice Joseph Lamar, in January. (Lamar himself was a Democrat from Georgia and a childhood friend of Wilson, though he had been nominated by President William Howard Taft.)

The choice of Brandeis was both an effort to shore up Wilson’s re-election chances and a reward to a loyal ally, Urofsky said. But the opposition to the nomination was loud and enduring.

“He was seen as a radical. He had taken on J.P. Morgan, favored labor unions and opposed big business. He was disliked by a lot of people,” said Urofsky, author of the 2009 book “Louis Brandeis: A Life.”

As a lawyer, Brandeis was not an especially gracious winner, Urofsky said. “He fought to win and he did it without kid gloves on,” he said.

Urofsky acknowledges that anti-Jewish sentiment played a role in the opposition to Brandeis, but concludes that it was relatively limited.

Among the critics of Brandeis’ nomination was Taft, the former president and future chief justice. “He is a muckraker, an emotionalist for his own purposes, a socialist, prompted by jealousy, a hypocrite, a man who has certain high ideals in his imagination, but who is utterly unscrupulous, in method in reaching them, a man of infinite cunning ... of great tenacity of purpose, and, in my judgment, of much power for evil,” Taft wrote at the time.


Their relationship was better when Taft joined the court in the early 1920s.

The hearings didn’t undermine the case for Brandeis, allowing Democrats to stick together in the face of united Republican opposition. He was approved on party-line votes by the subcommittee and the Senate Judiciary Committee. Brandeis was confirmed 47-22, with three Republicans voting for him and one Democrat in opposition.

Wilson went on to win re-election and Brandeis stayed on the court until Feb. 13, 1939 — 77 years to the day before Scalia died.


The court’s official mourning period for Scalia is coming to an end, a month after his death, but his “presence will always be felt in this courtroom,” Chief Justice John Roberts told a crowd that filled the marble courtroom for an evening lecture last week.

The flag outside the court, at half-staff since Scalia’s death, will be raised to the top of the flagpole on Monday. Black bunting that has draped his chair, his place on the bench and the courtroom itself will be removed.

“At that time we will also rearrange the bench chairs,” Roberts said in introducing a lecture on one of his predecessors, John Marshall.

Scalia’s place to the right of Roberts will be taken by Justice Anthony Kennedy, now the longest-serving member of the court, Roberts said. On Roberts’ left will be Justice Clarence Thomas. All the other justices also will change seats and move to the other side of the bench from where they had been sitting in a choreography shaped by seniority.

Perhaps most significantly, Scalia’s chair will be removed from the bench, leaving only eight.

“There will not be a chair on the far left, which is where the new member will sit,” Roberts said. Left unsaid, of course, was how long it might take for a new justice to be confirmed.


One thing that hasn’t changed yet is the number of cases the court has agreed to hear in its new term. There are just five cases set for the court’s return in October and none has been added since Scalia’s death.

The court may be putting off taking on new cases that could divide the justices on ideological grounds until there are nine of them and the likelihood of tie votes recedes.

But it’s not clear the court has passed up any obvious cases because of Scalia’s death. Also, the court has a bit of breathing room because of the odd hearing schedule in October.

The Columbus Day holiday almost always reduces argument days from six to five in October. But this year, there will be only three days on which the justices hear cases because the Jewish holidays of Rosh Hashanah and Yom Kippur occur during the first two weeks of the month. Instead of the usual load of 10 cases, only six will be argued.