Tuesday, 25 May 2010

Elena Kagan And Jewish Justices

“She will be the member of the Supreme Court who is most Jewishly knowledgeable.”— Nathan Lewin, on U.S. Supreme Court nominee Elena Kagan

In January of 1916, when Woodrow Wilson nominated Louis Brandeis to the U.S. Supreme Court as the first Jewish justice, anti-Semitic passions in America were running high. The choice of Brandeis was as bitterly contested as that of Elena Kagan, President Obama’s recent nominee, is likely to be.

Wilson and Brandeis both knew what they were in for. A year earlier, the High Court had briefly considered a petition for habeas corpus brought by Leo Frank, an American Jew who’d been convicted in 1913 of murdering 13-year-old Mary Phagan, one of the employees at a pencil factory Frank supervised in Atlanta. The case had become a sensational saga of Southern prejudice — pitting North against South, black against white, industrial culture against agrarian and Christian against Jew.

Although Georgia’s Jewish community had flourished since its origins in the mid-1700s, by the turn of the 20th century hundreds of thousands of immigrants were making their way to the U.S. and injecting themselves into the American way of life. They were resented by many of the so-called natives.

Among the seven justices who rejected Frank’s challenge to the fairness of his trial was Joseph Rucker Lamar of Georgia. (The two dissenting justices were Oliver Wendell Holmes and Charles Evans Hughes, who agreed that the trial was a gross
miscarriage of justice.)

When new evidence emerged suggesting Frank’s innocence and the governor of Georgia (John Slaton) commuted his death sentence to life in prison, a group calling itself the Knights of Mary Phagan kidnapped Frank from prison and lynched him.

(Slaton also was threatened with lynching and left the state. B’nai B’rith founded the Anti-Defamation League as a result of the lynching. In 1986, “without attempting to address the question of guilt or innocence,” Georgia granted Frank a pardon.)

With this backdrop it was hardly surprising that Wilson’s nomination engendered controversy. As Justice William O. Douglas later wrote, “Brandeis was a militant crusader for social justice whoever his opponent might be. He was dangerous not only because of his brilliance [and] his courage.

He was dangerous because he was incorruptible … [and] the fears of the Establishment were greater because Brandeis was the first Jew to be named to the Court.”

The nomination was denounced by conservative Republicans, including former President William Howard Taft (who had appointed Lamar) and Elihu Root, who had been both a U.S. senator and president of the American Bar Association and who claimed Brandeis was “unfit” to serve on the court. Even The New York Times wrote that having been a “reformer” for so many years, he would lack the “dispassionate temperament that is required of a judge.”

Brandeis had his supporters as well. Harvard law professor Roscoe Pound called him “one of the great lawyers.” Others said that he “had angered some of his clients by his conscientious striving to be fair to both sides in a case.”

After nearly 3 1/2 months of contentious Senate hearings, Brandeis was finally confirmed, by a vote of 47 to 22. He went on to become one of the most respected and influential justices ever to serve on the Supreme Court. His opinions articulating the freedom of speech remain among the most eloquent, his defense of the right to privacy the most ennobling.

Brandeis’ brethren on the bench were not always appreciative. From the beginning, he was shunned by Justice James Clark McReynolds — an arch anti-Semite who had been appointed two years earlier and who insisted that his law clerks could not be “Jews, drinkers, blacks, women, smokers, married or engaged individuals.” After Brandeis was confirmed, McReynolds stringently refused to talk to him; he habitually left the conference room when Brandeis spoke, and he refused to sign opinions written by his Jewish colleague. When Brandeis retired in 1939, McReynolds declined to sign the customary farewell letter.

Although Brandeis had always been a decidedly secular Jew, he evolved into an ardent Zionist.

Unlike the majority of American Jews at the time, he felt that the re-creation of a Jewish national homeland was one of the key solutions to anti-Semitism and the so-called “Jewish Problem” in Europe and Russia, while at the same time a way to “revive the Jewish spirit.”

In a speech to Reform rabbis in 1915, Brandeis justified the effort to establish a homeland in Palestine as “a manifestation in the struggle for existence by an ancient people which has established its right to live, a people whose 3,000 years of civilization has produced a faith, culture and individuality which enabled it to contribute largely in the future, as it has in the past, to the advance of civilization; and that it is not a right merely but a duty of the Jewish nationality to survive and develop. They believe that only in Palestine can Jewish life be fully protected from the forces of disintegration; that there alone can the Jewish spirit reach its full and natural development; and that by securing for those Jews who wish to settle there the opportunity to do so, not only those Jews, but all other Jews will be benefited, and that the long perplexing Jewish Problem will, at last, find solution.”

He also said, “Let no American imagine that Zionism is inconsistent with patriotism. Multiple loyalties are objectionable only if they are inconsistent. A man is a better citizen of the United States for being also a loyal citizen of his state, and of his city; or for being loyal to his college. … Every American Jew who aids in advancing the Jewish settlement in Palestine, though he feels that neither he nor his descendants will ever live there, will likewise be a better man and a better American for doing so. There is no inconsistency between loyalty to America and loyalty to Jewry.”

Brandeis brought his influence to bear on the Wilson administration in the negotiations leading up to the Balfour Declaration, a British government statement supporting the establishment of a Jewish homeland in Palestine. In the late 1930s, he endorsed illegal immigration to Palestine in an effort to help European Jews escape genocide when Britain denied entry to more Jews.

Brandeis’ immediate successor to the “Jewish seat” on the Supreme Court was Benjamin Cardozo. When he was nominated in 1932 by President Herbert Hoover, McReynolds joined with Justices Louis Butler and Willis Van Devanter in urging the White House not to “afflict the court with another Jew.” (McReynolds reportedly declared, “It seems that the only way you can get on the Supreme Court these days is to be either the son of a criminal or a Jew, or both.”) During Cardozo’s swearing-in ceremony, McReynolds ostentatiously read a newspaper and would often hold a brief in front of his face when Cardozo delivered an opinion from the bench. As with Brandeis, McReynolds never spoke to Cardozo, nor did he attend the memorial ceremonies held at the Supreme Court after Cardozo’s death in 1938.

Cardozo must have been bothered by such bald-faced bigotry, but what might be grounds for impeachment by today’s politically correct standards was notoriously tolerated on the High Court during the first half of the 20th century. Besides, Cardozo was well known and much admired for his modesty and philosophical outlook.

“In truth,” said Cardozo of himself, “I am nothing but a plodding mediocrity — please observe, a plodding mediocrity — for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.”

‘Another Jew’

Felix Frankfurter, an old friend and protégé of Brandeis, became the next Jewish justice, appointed by President Franklin D. Roosevelt in 1938.

His confirmation hearing is notable for two reasons: it was the first time that a nominee for the Supreme Court appeared in person before the Senate’s Judiciary Committee, and he was confirmed without a single dissent. (At Frankfurter’s swearing-in, McReynolds, who didn’t retire until 1941, is said to have exclaimed, “My God, another Jew on the court.”)

Frankfurter was born in Vienna, Austria. His forebears had been rabbis for generations. In 1894, when he was 12, his family immigrated to the United States, where he learned English growing up on New York City’s Lower East Side. After graduating from City College of New York, he worked for the city’s Tenement House Department in order to raise money for law school. He was accepted at Harvard, where he became an editor of the Harvard Law Review and graduated with one of the best academic records since Brandeis.

As World War I drew to a close, Frankfurter was among nearly a hundred intellectuals who signed a statement of principles for the formation of the League of Nations. With Brandeis, he lobbied President Wilson to support the Balfour Declaration. In 1918, he participated in the founding conference of the American Jewish Congress in Philadelphia, and served as a Zionist delegate to the Paris Peace Conference in 1919.

In 1921, Frankfurter was given a chair at Harvard Law School, and continued progressive work on behalf of socialists and oppressed and religious minorities. When the president of Harvard University, Lawrence Lowell, proposed to limit the enrollment of Jewish students, Frankfurter worked with others to defeat the plan.

In the late 1920s, he came to public attention when he supported calls for a new trial for two Italian immigrant anarchists, Sacco and Vanzetti, who had been sentenced to death on robbery and murder charges. He served as an associate justice for 23 years (from 1939 to 1962), during which time he became the Supreme Court’s most outspoken advocate of judicial restraint — the view that courts should not interpret the U.S. Constitution in such a way as to impose sharp limits upon the authority of the legislative and executive branches. In time, Frankfurter became the leader of the court’s conservative faction.

The next two Jewish justices served much shorter terms. Arthur Goldberg was U.S. secretary of labor before President John F. Kennedy appointed him to the court in 1962; he resigned in 1965 to become U.S. ambassador to the United Nations.

Despite his short time on the bench, Goldberg played a significant role in shifting the court’s balance toward a more liberal construction of constitutional rights. In 1963, he became the first justice to argue that imposition of the death penalty should be regarded as cruel and unusual punishment in contravention of the Eighth Amendment.

In 1962, Abe Fortas represented Clarence Gideon in a landmark case (Gideon v. Wainwright) that held the Sixth Amendment required all criminal defendants, even those who were indigent, to be offered the assistance of counsel. In 1965, President Lyndon Johnson, who had persuaded Goldberg to become U.N. ambassador, appointed Fortas to the Supreme Court.

When Chief Justice Earl Warren announced his retirement in June 1968, Johnson nominated Fortas to replace him. The Warren Court’s liberal agenda had disenchanted many conservative members of the Senate, and Fortas — the first nominee for chief justice ever to appear before the Judiciary Committee — faced hostile questioning, mostly about his relationship with the president. Eventually, he was accused of seeking a pardon on behalf of his friend and former client, Wall Street financier Louis Wolfson.

Though Fortas denied any wrongdoing, he chose to resign from the court instead of risking an impeachment trial.

Prior to the 20th century, Supreme Court justices were always white, male and overwhelmingly Protestant. Concerns about diversity were mainly geographic. The first Catholic on the court (there have been 12) was Roger Taney, appointed in 1836.

The first African-American was Thurgood Marshall (1967); the first woman, Sandra Day O’Connor (1981). The first Hispanic may have been Cardozo, who was a member of the Sephardic Portuguese community in New York, although most historians grant that distinction to Justice Sonia Sotomayor, appointed by President Obama in 2009.

Star Pupil

If Elena Kagan’s nomination gains Senate approval, as appears likely, she will join Justices Ruth Bader Ginsburg and Stephen Breyer — both of them appointed (in 1993 and 1994) by President Bill Clinton — as the third Jewish member of the current Supreme Court. The other sitting justices are all Catholic, and conservative.

Born 50 years ago in New York City, Ms. Kagan was the middle of three children whose parents, Robert Kagan and Gloria Gittelman Kagan, strove to educate their children well.

Her schooling was indeed formidable: She earned successive degrees from Princeton, Oxford and Harvard Law. After clerking for Justice Thurgood Marshall at the Supreme Court, she entered private practice at Williams and Connolly in Washington, D.C.

She became a professor of law at the University of Chicago, associate White House counsel under President Clinton, and professor of law and then dean at Harvard.

In January of 2009, Mr. Obama appointed her the first woman solicitor general of the U.S., and then on May 10, he nominated her to fill the vacancy created by the impending retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term.

Not much is publicly known about Ms. Kagan’s Judaism, but a glimpse at her Upper West Side upbringing offers some interesting possibilities. The local Westside Independent noted the neighborhood reputation as “a haven for cheese-eating Socialists.” Her late father was a trustee of the West End Synagogue. In 1968, he was president of the United Parents Association, a citywide parents’ advocacy group. He was also a trustee of the West End Synagogue. When her mother, a teacher at Hunter College, died in 2008, the synagogue paid for a death notice honoring “this small but mighty, highly principled, intelligent, idealistic lady.”

The New York Times also described Ms. Kagan as “a creature of Manhattan’s liberal, intellectual Upper West Side, cocky (or perhaps prescient) enough at 17 to pose for her high school yearbook in a judge’s robe with a gavel and a quotation from Felix Frankfurter underneath.”

According to the Times, Ms. Kagan was a star pupil in her Hebrew school on the Upper West Side. When she turned 12, she wanted a formal bat mitzvah ceremony, but there had never been one at the Orthodox shul her family attended, the Lincoln Square Synagogue. So instead, she read from the Book of Ruth, which she also analyzed in a speech.

Ms. Kagan now considers herself a Conservative Jew. (Mr. Obama also revealed that she is a diehard New York Mets fan.) Like Supreme Court nominees before her, she has not granted interviews with the news media.

Nathan Lewin, a Baltimore-born attorney who is perhaps the pre-eminent Jewish expert on Constitutional law, has argued many key religious issues before the Supreme Court and is familiar with Ms. Kagan’s background.

“She will be the member of the Supreme Court who is most Jewishly knowledgeable,” he told the Baltimore Jewish Times.

“Breyer and Ginsburg had virtually no Jewish education whatsoever, although they have become more religious since they came on the court. I am told that notwithstanding her West Side upbringing and the bat mitzvah at Lincoln Square Synagogue, she is less actively Jewish than Martha Minow, her successor as dean.”

On religion-and-state issues, Ms. Kagan is still largely an unknown quantity, although she just won one of the first cases she argued as solicitor general — Salazar v. Buono — in which she presented a position that supported religious displays on public property.

In any event, says Mr. Lewin, the Orthodox community should be happy to trade Justice Stevens for Ms. Kagan. Mr. Stevens voted against the right of a U.S. Air Force officer to wear a kippah while on duty, against the Chabad menorah in front of Pittsburgh’s City Hall and against the town of Kiryas Joel in an aid-to-education case — all of which Mr. Lewin argued before the Supreme Court.

“He was the hardest vote for me to get in the cases in which I represented the Orthodox community,” Mr. Lewin said. “Kagan cannot be worse.”

Mr. Lewin said that Ms. Kagan was a resounding success as dean at Harvard because of her ability to make peace between the right and left. “I heard rave reviews from friends on the faculty long before she became nationally famous by being appointed solicitor general,” he said.

Perhaps the most intriguing aspect of Ms. Kagan’s place on the court will be her interaction with the arch-conservative Justice Antonin Scalia. “I know from what both Scalia and she have said to me,” said Mr. Lewin, “that there is a great mutual respect and friendship between them. I doubt that she’ll be able to persuade Kennedy to move to the left, so the Roberts-Scalia-Thomas-Alito group will still win if they can get Kennedy to join.”

Religion, however, does not dictate ideology.

For example, the late William Brennan, perhaps the most liberal justice in Supreme Court history, was Catholic and his jurisprudence could not have been more different than that of Justice Scalia (with whom he was a personal friend).

Predictably, Ms. Kagan’s nomination has been condemned by conservative Republicans and praised by liberal Democrats. The litmus test for all contemporary nominees is quite different from the issues raised by her Jewish predecessors: What is her stand on abortion? She has virtually no written record on the subject.

In a 1992 law review article, she praised Thurgood Marshall’s “special solicitude for the despised and the disadvantaged.”

Republicans are already attacking her admiration for Marshall, who once claimed that the original Constitution was defective because it specifically sanctioned slavery.

Although it’s virtually inevitable that conservative pundits will soon refer to the “Jewpreme Court,” and question Ms. Kagan’s status as an unmarried woman, the criticism so far has centered on her stance against military recruiting at Harvard. (She has long opposed the “Don’t ask, don’t tell” policy on homosexuality as discriminatory.)

Several law professors also have raised concern of a Supreme Court with no Protestants.

“When you have such a large part of the country that has a particular sort of religious worldview,” said Mark Scarberry, an evangelical professor at Pepperdine Law School, “if there is no one on the court who is able to understand that worldview in
a sympathetic way, then that creates difficulties.

“Of course, there are also zero atheists or agnostics. Ms. Kagan, in accepting the nomination, mentioned that she prays every day [to live up to the example of her public service-minded parents who have passed away]. All justices past and likely present were reared in a religion that stands on the words in the Bible. My favorite quote comes to mind: Deuteronomy 16:20: ‘Justice, justice shalt thou pursue.’ ”

Just because her religion might not be a direct topic at confirmation hearings doesn’t mean it will be ignored. Mark Osler, a law professor at Baylor University, told The Washington Post that “There’s an important part of our population that’s not represented here.

Faith plays into the development of conscience in the same manner that race and gender do.” Noting that justices often ask whether actions “shock the conscience,” Mr. Osler went on to say that “Conscience is something that’s developed, for many of us, in the context of faith. When you’re asking that question, it’s particularly important that you have a diversity of faiths.”

Barry Lynn, director of Americans United for Separation of Church and State, says that regardless of what Ms. Kagan believes, she should maintain the high wall between the two. The Christian Post quotes both evangelical and Catholic conservatives in opposition to what they see as Ms. Kagan’s liberal anti-family and pro-abortion rights.

As solicitor general, Ms. Kagan defended a law that bars providing material support to terrorist organizations, as “a vital weapon in this nation’s continuing struggle against international terrorism.” Even seemingly benign help is prohibited, Ms. Kagan said. “Hezbollah builds bombs,” she said of the militant Islamic group. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That’s the entire theory behind the statute.”

Local lawyers interviewed for this story have mixed feelings about Ms. Kagan’s nomination.


Laurence Katz, former dean at the University of Baltimore School of Law, said he knows very little about her. (“Harvard deans rarely come to national meetings.”) Steven Sklar, a board member of the Baltimore Zionist District, suggested that a court with Justices Breyer, Ginsburg and Kagan “will bring new meaning to the word ‘Jew-diciary’.”

Melvin Sykes, a prominent Maryland appellate attorney who met Ms. Kagan in 2008 at the 50th reunion of his Harvard Law School graduating class, said, “She wrote a very fine article about presidential powers in the Harvard Law Review. She handled herself well at the reunion, and she was an effective fund-raiser as dean.”

Lawyers and laymen alike might question whether Elena Kagan will be “good for the Jews” or, in any event, good for the country. The best hope is that she’ll turn out like Louis Brandeis — and be good for both.

Kenneth Lasson, a professor of law at the University of Baltimore, is a frequent contributor to the Baltimore Jewish Times.

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