Part Two of Confirmation Stories, a continuing Law Weekly series
William Fassuliotis ‘19
If you can remember back to the confirmation hearings for Judge Kavanaugh, before the accusations were made against him, you likely had one of two sets of thoughts. If you were sympathetic to those opposing Judge Kavanaugh, you may have seen Senate Democrats as engaging in principled opposition, seeking as much information as possible about his time with the Starr investigation, the Bush Administration, and as a judge in order to make the case to the American people, like Ted Kennedy and other Democrats did in 1987. If you were sympathetic to those in support of Judge Kavanaugh, you might have been appalled at the histrionics and tantrums by a bunch of Senators trying to enhance their presidential prospects. Both sides weep for the future of the republic. One can be forgiven for thinking that confirmation hearings have a principled history, dating back to the founding, and only recently become debased political spectacles. This thought, however, is mistaken.
The expectations surrounding Supreme Court nominees would change forever on January 2, 1916, when Justice Joseph Rucker Lamar passed away.1 On January 28, President Woodrow Wilson, after much deliberation and lobbying (including by The New York Times and others to appoint former President and 1912 electoral opponent William Howard Taft), nominated a close advisor, Louis Dembitz Brandeis.
By that time, Brandeis had acquired the epithet of “The People’s Lawyer.” The controversy surrounding his nomination can easily be understood by what others wrote about him. To his opponents he was, as Taft wrote to a friend, “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….” His supporters would agree with Justice William Douglas (who would replace Justice Brandeis when he retired), that “the image of Brandeis … was one that frightened the Establishment. Brandeis was a militant crusader for social justice whoever his opponent might be. … He was dangerous because he was incorruptible.”2
Brandeis invented what would become known as the “Brandeis Brief,” or as he would call it, “What every fool knows.” Instead of relying solely on arguments based on legal precedence and logic, a Brandeis Brief would be filled with facts, statistics, and data explaining why a particular regulation should be upheld as constitutional. This was, for its time, simply radical. He was also successful, even at the height of the Lochner era.3
At a time when the legal profession in general, and the judiciary in particular, was small-c conservative—valuing tradition, ordered liberty, and the rights of property—the above would have been enough to create a firestorm of opposition. There was another “complicating” factor: Brandeis would be the first Jewish member of the Court. Though raised in a secular household, he would embrace his Jewish faith as he became older, and would be one of the pioneers of Zionism. Few, if any, publicly opposed him on openly anti-Semitic grounds, although in private a number definitely did. Some accused Wilson of nominating Brandeis to bolster Jewish support for the upcoming election and to appease political constituencies. Sometimes subtext, sometimes text, the controversy over his nomination cannot be understood without his religion.
And so, this set the stage for the first public confirmation hearing. I should note the emphasis is on first public confirmation hearing—the Senate had at least one hearing on a nominee before 1916,4 and nominees were regularly referred to a committee since 1868.5 These were, however, private and closed to the public, short in duration, and, with one exception, without witness testimony. The modern confirmation hearing—public, extensive, and with testimony by proponent and opponents—was pioneered in response to Brandeis’ nomination.6 Both proponents and opponents were unsure whether the nomination would succeed, and both hoped to use the hearing to persuade undecided Senators.
The first hearing was called to order on February 9, 1916, the first of 19 days of hearings, by far the most of any justice. A subcommittee consisting of five members of the Senate Judiciary Committee heard testimony from 43 witnesses. Opponents testified that his conduct was unprofessional and unethical, his character unfit, and an advocate who would not—nay, could not—be impartial as a Justice. His supporters rebutted those allegations as unfounded attacks by the “privileged interests.” The hearing discussed years of Brandeis’ cases, litigation, activities, and other matters important at the time but footnotes to contemporary historians. Conspicuously absent was Brandeis himself—a nominee would not testify at his own hearing until Harlan Stone in 1925.7 On April 1, the Subcommittee voted in favor 3–2. On May 24, the Judiciary Committee would report favorably on the nomination, 10–8, on a party line. Finally, on June 1, 1916, the Senate voted to confirm Brandeis 47–22.8 Those 125 days remain the longest amount of time between a nominee’s nomination and confirmation or rejection by the Senate. Justice Brandeis would stay on the court until 1939.
As a judge, Brandeis would be exactly what his supporters hoped for and critics dreaded. He would continue to be an “advocate for the people,” forcefully writing for or joining opinions or dissents in favor of freedom of speech,9 a right of privacy,10 and other decisions that helped, in his view, put the “small man” on a level playing field. He was not, however, a doctrinaire liberal. He decried “the curse of bigness,” and the twin evils of both big business and big government. He was perhaps the biggest proponent of Jeffersonianism since Jefferson himself. He popularized the description of states as “laboratories of democracy,”11 and joined decisions striking down parts of the New Deal he thought centralized too much power in the hands of the federal government. He believed that business and government needed to be small enough that the common man and his neighbors could join together and have control over their own destinies.
If you have any questions, comments, ideas for future articles, please do email me. I am always interested in them. Sources used, in addition to those in the footnotes, include Jeffrey Rosen’s Louis D. Brandeis: American Prophet, and A.L. Todd’s Justice on Trial: The Case of Louis Brandeis.
Next time: Eisenhower, Nixon, and the Warren Court.
1 Justice Lamar, a Taft appointee and a deservedly obscure Justice who served only five years, should only be remembered as one of three pairs of relatives to sit on the Court. He was the cousin of undoubtedly the best-named Justice to ever don the robe: Lucius Quintus Cincinnatus Lamar II, a Grover Cleveland appointee who also served only five years.
3 In Muller v. Oregon, the Court unanimously upheld an Oregon law limiting the work day for women in factories to 10 hours.
4 http://www.scotusblog.com/2016/03/legal-scholarship-highlight-the-evolution-of-supreme-court-confirmation-hearings/ (“Legal scholarship highlight: The evolution of Supreme Court confirmation hearings”)
5 https://fas.org/sgp/crs/misc/RL33225.pdf (“Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President“)
6 To be clear, not every nominee had a hearing after Brandeis. The next six nominees did not. But when there were hearings, this was the first and the precedent. Sources disagree on when hearings became standard procedure. Felix Frankfurter in 1939 or John Harlan II in 1955 are commonly listed.
7 Harlan F. Stone would be the first to do so, primarily to answer questions about his actions as attorney general. The practice would not become regular until the mid-20th century. As well, there were six nominees between Brandeis and Stone who either did not have a hearing, or had one in private.
8 One of those who voted against confirmation was Senator George Sutherland of Utah, who would in 1922 join Justice Brandeis on the bench.
9 Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).
10 Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting).
11 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).