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   2002-01-11 Presidents and Supreme Court


White House

Supreme Court 
Justice, Justice...

Rabbi David G. Dalin, presidential scholar, traces the appointments of
Jews to the U.S. Supreme Court
book file
By Donald H. Harrison

As co-author of The Presidents of the United States and the Jews, Rabbi
David G. Dalin has any number of fascinating stories at his command, including one tracing the history of Jews being appointed to the Supreme Court that begins with Millard Fillmore and ends, so far, with Bill Clinton.

Dalin, who wrote the coffee table book with Rabbi Alfred J. Kolatch, plans to focus on the Jewish connections and interests of the most recent U.S. presidents, including incumbent George W. Bush, when he delivers a featured address at the Jan. 20-31 Festival of Jewish Learning on Jan. 28.

Although his 7 p.m. speech at the San Diego Repertory Theatre space at Horton Plaza will address in particular the current administration's attitudes toward Jews, Dalin proved to have a large repertoire of presidential stories at his command during a recent telephone interview with
Heritage from his home in Connecticut.

The author (whose brother Rabbi Ralph Dalin is in charge of Judaic studies at San Diego Jewish Academy) pointed out that Fillmore is not the first president whose name would pop into most people's minds as a benefactor of the Jews. In fact, some people might think just the reverse given the fact that after Fillmore left office he became the 1856 presidential candidate of
the virulently anti-immigrant American party, known popularly as the "Know-Nothing" party.

The Know-Nothing platform called for prohibiting any immigrant to the United States from holding public office. The policy was aimed against waves of Catholic immigrants as well as against Jews.

Ironically, one of the persons who would have been excluded from holding public office under such a policy was Judah P. Benjamin, to whom Fillmore offered a Supreme Court judgeship only four years before.

A Jew who had been born in the British West Indies, Benjamin emigrated to Louisiana, where rose to the position of United States senator — becoming in 1852 only the second Jew to achieve the rank. (David Levy Yulee was elected from Florida in 1845, but had converted to Christianity.)

Only a few months after Benjamin's election to the U.S. Senate, Fillmore offered him a Supreme Court judgeship. However, the country then was locked in the political struggle between the North and the South that would lead to the Civil War. Benjamin chose to remain in the Senate to argue in behalf of the pro-slavery Southern cause.

Eventually, Benjamin resigned the Senate to become an official of the Confederate States of America, rising to become the Confederacy's secretary of State. Dalin's book includes a picture of the Confederate $2 bill, which bears Benjamin's photograph.

The first to actually appoint a Jew to the Supreme Court was President Woodrow Wilson, whose selection of Justice Louis D. Brandeis in 1916 created an uproar. For some people, Brandeis was too liberal, too pro-union, too radical and a "Jew." The Senate confirmed him by a margin of 47-22. In his book, Dalin tells how one of Wilson's friends later commented, "Isn¹t it a
shame, Mr. President, that a man as great as Mr. Justice Brandeis should be a Jew?" Wilson responded: "But he would not be Mr. Brandeis if he were not a Jew!"

The next to appoint a Jew to the Supreme Court was President Herbert Hoover, who selected Benjamin Cardozo in 1932. "It was one of his most distinguished appointments," Dalin said.

"What makes it fascinating is it was the only case of a president whose Jewish appointee was a member of the opposing party. Cardozo was a Democrat, and not only a Democrat, but he actively supported Al Smith's candidacy for the presidency against Hoover in 1928. It was more than magnanimous, it was something that even his critics said was an act of statesmanship."

Dalin said that Cardozo was "universally revered by Republicans and Democrats alike... It was one of the great judicial appointments."

Brandeis, at the time of the Cardozo appointment, still was on the court. In lobbying in Cardozo's behalf, U.S. Sen. William Borah (R-Idaho) acknowledged to Hoover that there was a great deal of opposition to having two Jews on the bench and added: "Such an opportunity may never again come to you, Mr. President, to strike a blow at anti-Semitism."

Although the opposition had been expressed in other quarters of the government— notably by Justice James McReynolds, who had urged Hoover not "to afflict the Court with another Jew" < there was no opposition to Cardozo whatsoever in the U.S. Senate. "Unique among the seven Jewish appointees to the Supreme Court, Cardozo's nomination was "confirmed by virtual
acclamation," without a debate or roll call vote, Dalin wrote.

Brandeis retired in 1939, the same year that Cardozo died. President Franklin D. Roosevelt decided to appoint Felix Frankfurter to the court, notwithstanding advice from the New York Times publisher Arthur Hays Sulzberger that appointing him might make people think that there must always be a Jew on the court, "whether qualified or not." The concept of the
so-called "Jewish seat" on the Supreme Court dated from this period.

A stroke caused Frankfurter to retire from the Supreme Court in 1962, and President John F. Kennedy filled the vacancy with the appointment of Arthur J. Goldberg, who had been serving in the Cabinet as secretary of Labor.

Goldberg's tenure, however, was of short tenure, as President Lyndon B. Johnson persuaded him in 1965 to step down from the court and replace Adlai Stevenson, who had died of a heart attack, as the U.S. ambassador to the United Nations.

"Nobody quite understands why he stepped down to go to the United Nations," Dalin said. "A Supreme Court appointment is a life-time appointment, and Goldberg lived through the 1990s, so if he had remained, he would have been on the court close to 30 years. Johnson wanted to appoint Abe Fortas, his close friend and advisor, but how was he able to persuade Goldberg to step down from the court to a job with no security?

"It was unusual in American history to step down from the court generally. Charles Evan Hughes stepped down from the court in 1915 to run for president, and then (having been unsuccessful in that quest) he was later reappointed chief justice."

The association of Jews and distinguished service on the Supreme Court seemed headed for a high point in 1968 when President Johnson decided to elevate Abe Fortas from justice to chief justice of the Supreme Court, following the retirement of incumbent Earl Warren. The elation that
accompanied the notion of a first Jewish Supreme Court chief justice soon turned to dismay when investigators found out that during his tenure on the court Fortas was being paid, contrary to law, $20,000 per year to serve as a trustee of Louis E. Wolfson's charitable foundation. Worse still, Wolfson at the time was serving a prison sentence for stock manipulation.

Johnson subsequently withdrew Fortas' nomination, and in 1969 Fortas resigned from the court. President Richard M. Nixon appointed Warren E. Burger as chief justice and Harry Blackmun as a justice, thereby bringing to a close a 53-year stretch when at least one Jew was serving on the U.S. Supreme Court.

There was considerable speculation that if Nixon's successor, Gerald R. Ford, had remained in office longer, his second appointment to the Supreme Court (after John Paul Stevens) would have been his Atty. Gen. Edward Hirsch Levi, whom Dalin counts as one of the greatest almost-appointees to the Supreme Court.

Although Oscar Strauss, who was secretary of Commerce in President Theodore
s administration, claims the distinction of being the first Jew named to a Cabinet position, Levi was the first Jew ever to be named attorney general.

It was not the first "first" in Levi¹s remarkable career, Dalin noted. "He came from a background of rabbis and grew up at the University of Chicago, and he eventually became the dean of the University of Chicago law school, and then the provost," Dalin said.

"He became president of the University of Chicago in 1968, really a first major milestone, because up to that time the only Jewish presidents of a university were at those universities under Jewish auspices, such as Brandeis, Dropsie, Yeshiva and the Jewish Theological Seminary."

Dalin recalled that Ford had to appoint an attorney general in the wake of the Watergate scandal that not only had brought down Nixon but also John Mitchell, who had been his attorney general. The appointment, therefore, "for Jerry Ford was probably the most important in a very brief presidency" and its effect was to "restore a lot of faith in the presidency and the
Justice department."

The period during which there was no Jew on the Supreme Court stretched for 24 years through the administrations of Jimmy Carter, Ronald Reagan and George Bush until 1993, when Bill Clinton appointed Ruth Bader Ginsburg, the court's first Jewish woman. A year later, Clinton appointed Steven Breyer, who along with Alan Dershowitz had once clerked for Justice Arthur Goldberg, bringing the total of sitting Jewish justices to two— invoking memories of the time when Brandeis and Cardozo were colleagues on the high bench.

Ginsburg was a child during the years of the Holocaust, and Dalin's book quotes her as telling Eleanor and Robert Slater, authors of Great Jewish Women, that "Jews fortunate enough to be in the United States during those years could hardly avoid identifying themselves with the cause of the Jewish people."

The author noted that when Breyer was asked how Judaism had affected his career, he responded: "It's a little corny, but I think of what Hillel said: 'If I am not for myself, who am I? And if I am only for myself, what am I?' I have always thought of the practical nature of Jewish religious beliefs and the way they're involved in making this world a better place, requiring
people to have a sense of justice and to think of others."

In the story of U.S. presidents and Jewish U.S. Supreme Court justices, there are two long lines, each with their spectacular standouts, each with their disappointments. One includes Fillmore, Wilson, Hoover, Roosevelt, Kennedy, Johnson, Ford and Clinton. The other includes Benjamin, Brandeis, Cardozo, Frankfurter, Goldberg, Fortas, Ginsburg and Breyer.