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Naming A Justice
IT HAS ALWAYS BEEN POLITICS AS USUAL
October 1991 | Volume 42, Issue 6
Watching from the sidelines, Holmes thought the nomination “a misfortune for the Court because whichever way it went half the world would think the less of the Court thereafter.” Nonetheless, when finally the Senate confirmed Brandeis, on June 1, Holmes telegraphed him one word, “Welcome,” and puckishly wrote to his friend Lady Castletown that he was looking forward to the mixture of “spiritual opinions” that would result from a judicial lineup including a Jew and two Catholics. In fact, although Brandeis went on to one of the most distinguished careers of any justice, fully warranting Wilson’s trust (“I never signed any commission with such satisfaction as I signed his”), the aura of anti-Semitism pervaded even the Court’s conference room. James McReynolds, Wilson’s first Supreme Court appointment, consistently snubbed Brandeis and would not even sign the letter the other justices wrote him when he retired in 1939.
After joining the Court, Brandeis managed to maintain his close ties with the youthful progressive professors and lawyers who were sustaining through the twenties the ferment that reached fruition in the New Deal. “Isaiah,” the young people called him, as they came to him for counsel and encouragement. Indeed, despite Brandeis’s insistence on “the judicial proprieties” and the consequent need to isolate himself from the political world, he managed an astounding amount of indirect influence. For many years he subsidized Frankfurter’s publication of articles on matters that particularly interested Brandeis.
Brandeis retired in February 1939. Two weeks before he left, another justice from Massachusetts, also a Jew, came on the Court. Brandeis had advised Wilson on economics and progressivism; Felix Frankfurter had for a decade served Governor and President Franklin D. Roosevelt in confidence and with influence. The two enjoyed, as Max Freedman, the editor of their correspondence, wrote, “a friendship based upon ideas, upon a shared philosophy of public life, upon similar convictions of social justice and world order.”
From the beginning of Roosevelt’s Presidency, his relationship with Frankfurter attracted journalistic and scholarly attention. Particularly in the early days commentators tended to ascribe Svengalian powers to the diminutive professor. Even friends like the leftist political scientist Harold Laski acknowledged that “Felix was made to have a big field in which to play” and that, as Holmes affectionately noted, he possessed “an unimaginable gift for wiggling in wherever he wants to.”
With the coming of the New Deal, Frankfurter seemed able to extend these characteristics to his students. Many of the brightest young Harvard Law School graduates ended up working for—and often directing—one or another of the new agencies. To FDR’s critics, it seemed as if “Frankfurter’s Happy Hot Dogs” ran the country. Actually, Frankfurter was merely continuing what he had been doing ever since he started teaching at Harvard in 1914: steering promising youngsters into public service.
Their correspondence shows that Roosevelt felt comfortable consulting Frankfurter on any subject, foreign or domestic, and that the professor gave counsel with similar ease. If Frankfurter was not Roosevelt’s alter ego, or even his most trusted adviser, he was certainly as close to FDR on a personal and intellectual level as anyone in the administration. Frankfurter even turned down an appointment to the Massachusetts Supreme Judicial Court in 1932 so that he could remain free to work for Roosevelt’s election. All that, together with Frankfurter’s nationally recognized legal brilliance, made it certain that Roosevelt would someday put him on the Court.
The issue of what FDR called Frankfurter’s “race” troubled the President. Both Brandeis and Holmes’s successor, Justice Benjamin Cardozo, were Jewish. Growing indications of an increased domestic anti-Semitism, coming against the background of the Nazi persecutions, caused some prominent American Jews to ask Roosevelt, as their predecessors had asked Wilson, to forgo elevating Frankfurter, lest the appointment stimulate the bigots.
The President will seek an umpire who shares his vision of the strike zone.
Whatever his slight doubts, on January 5, 1939, FDR named Frankfurter to succeed Cardozo. The New York Times called the appointment “one of the most popular” Roosevelt ever made. “I think Felix’s nomination has pleased me more than anybody else in the country,” FDR wrote to Laski.
To this point the Senate had never required a Supreme Court nominee to attend his own confirmation hearing, much less to answer questions in the manner so familiar today. The subcommittee broke precedent and summoned Frankfurter. Some anti-Roosevelt members, notably Sen. Patrick McCarran of Nevada, hoped to embarrass Frankfurter by suggesting that he had embraced communism or socialism. The nominee turned witch hunters into quarry.
Establishing the principle—now almost a truism—that he would not answer questions about his views on matters the Court might have to consider, Frankfurter fielded all inquiries and made a few of his own.
McCarran asked if Frankfurter agreed with Harold Laski’s “doctrine.” The transcript picks up the story:
FRANKFURTER: That implies he has a doctrine.
McCARRAN: Do you know whether or not he has a doctrine?