February 2, 2017
The confirmation hearings for Neil Gorsuch, Donald Trump’s nominee to become a justice on the Supreme Court of the United States, will undoubtedly prove bitter and contentious. After all, many Democratic Senators consider the seat stolen, because Senate Majority Leader Mitch McConnell would not meet with President Obama’s pick, Merrick Garland, let alone allow the respected jurist to receive a hearing.
Given that fresh wound, Judge Gorsuch will likely face a great deal of scrutiny, as Senators weigh his decisions and writings on issues such as same sex marriage and religious liberty. But Gorsuch’s religion — he’s an Episcopalian, and if confirmed he will join five Catholics and three Jews — is unlikely to generate a peep from otherwise hostile interlocutors.
The fight over the Garland pick also lacked any religious overtones, as he would have been, if confirmed, the fourth of nine Jewish Justices on the Court.
My, how confirmation nomination battles have changed.
The absence of a discussion of a nominee’s religion marks a significant shift compared to the grilling Louis D. Brandeis endured in 1916, when he became the first Jew to be nominated to a seat on the Supreme Court. Brandeis faced a bruising four-month confirmation battle, one of the most contentious in American history, in which his Jewishness was often bitterly noted in words that commonly crossed the line into anti-Semitism.
Former Republican President William Howard Taft, who later served with Brandeis on the Court, was livid when he heard about Wilson’s groundbreaking pick. “It is,” he wrote, “one of the deepest wounds that I have had as an American … that a man such as Brandeis could be put on the Court … he is a muckraker, an emotionalist … a socialist prompted by jealously, a hypocrite … who is utterly unscrupulous … and, in my judgment, of much power for evil.”
While some opposition to Brandeis was fueled by his reputation as a radical social and economic reformer and vocal opponent of big business, there is little question that much of the campaign against his nomination was anti-Semitic in origin. Anti-Semitism was certainly a major factor in the opposition of A. Lawrence Lowell, Harvard University’s anti-Semitic president. Lowell, a founder and national vice-president of the Immigration Restriction League, would later become notorious for trying to place an anti-Semitic quota limiting Jewish admissions to Harvard, Brandeis’ alma mater.
Lowell urged his good friend Massachusetts Republican Senator Henry Cabot Lodge to mobilize Senate opposition to Brandeis’s nomination. Lowell subsequently gathered a petition against Brandeis signed by 55 of the most eminent members of Boston’s legal and business establishment, several of whom, including most notably the patrician lawyer (and descendant of two U.S. Presidents) Charles Francis Adams, Jr., were well-known for their anti-Semitic bias. So, too, much of the testimony in opposition to Brandeis’s confirmation by Southern Democrats in the Senate was based on their anti-Semitism. Still, he was confirmed by a 47-22 margin.
The first four of the seven Jewish Supreme Court Justices who followed Brandeis – Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, and Abe Fortas – also faced significant obstacles and discrimination in their legal careers because of their religion. Jews commonly graduated law school only to find that Gentile-only law firms would not hire them, and even in the public sector they faced significant discrimination. Such was the progress made in the advancement of American Jews and the decline in anti-Semitism in the legal profession, that by the time the last three were appointed – Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan – being Jewish had ceased to be a disability at all, although for Ginsburg in particular there were many battles to be waged for being a woman in a virtually all-male field.
White Anglo Saxon Protestants had once been the ruling class in American life and in all its corridors of power. At the time of Louis D. Brandeis historic appointment as the first Jewish Supreme Court Justice in 1916, it would have seemed inconceivable that there would one day be a Court with three Jewish and no Protestant Justices. Again however, absolutely no mention of Gorsuch’s Protestantism has been made in the media; no Trump supporter has been heard to proclaim that having a Protestant on the Court would somehow do anything to “Make America Great Again.”
The focus, as it should be, is entirely on his positions on key constitutional issues, on whether or not he conforms to Trump’s criteria of a conservative “originalist,” in the mold of Scalia, and on the impact his judicial decisions will have on the lives of American citizens; his religious background will be irrelevant, unlike in the days of Justice Louis D. Brandeis. As the struggle commences over Gorsuch’s Senate hearings that may perhaps be of small comfort to Jewish liberal observers who will be closely following this process, but it is a sign of progress.
David G. Dalin, a historian and rabbi, is the author, co-author or editor of eleven books. His forthcoming book, “Jewish Justices of the Supreme Court, from Brandeis to Kagan – Their Lives and Legacies,” will be published on April 4, 2017 by Brandeis University Press.