Friday, September 25, 2009

Could Brandeis be Appointed Today?

On Wednesday, September 30, Professor Melvin Urofsky joins us for a Tenement Talk about Louis D. Brandeis: A Life, his biography of the first Jewish Supreme Court Justice, who sat on the Court during an electrifying time in US history (1916-39). Professor Urofsky will be guest-blogging the next two days to give us a little bit of insight into Justice Brandeis.

Several reviewers of my book ventured the thought that not only would a president not name Brandeis today, but he might not be confirmed, and while I am not completely sure they are right, there is more than a kernel of truth in that observation. One should keep in mind that the 1916 nomination touched off a four-month confirmation battle, and in the end Brandeis received Senate approval because Wilson invoked party discipline and the Democratic majority voted aye.

By the standards of the time, in terms of the type of person normally appointed to the Court, Brandeis was a radical who believed that law should serve not the interests of property but human needs. He was considered a champion of labor.

The last person overtly supportive of labor to be named to the Court was Arthur Goldberg by John F. Kennedy in 1962. More recent Democratic nominees such as Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor are sympathetic to labor but have no record of being champions of the working person. As for party discipline, that disappeared several presidents ago. Even with sixty votes in the Senate, it is hard to believe that President Obama could get all Democrats to support a controversial nominee.

And, alas, even if the President were willing to make such an appointment and could get Senate Democrats to flex their muscles, who would he name? There is no Louis Brandeis on the American scene today.

Portrait of Louis D. Brandeis by painter Joseph Tepper. Photoengraving on paper. 1939. Harvard Law School Library.

- Posted by Melvin Urofsky. Special thanks to Pantheon Books,

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