ATTORNEY FOR THE PEOPLE - The "Outrageous" Brandeis Nomination

MELVIN I. UROFSKY

On an otherwise slow Friday toward the end of January 1916, city editors around the country perusing the wire service ticker-tapes were suddenly jolted out of their lethargy. Shortly after noon on January 28th, a clerk had delivered a brief message from the White House: "To the Senate of the United States. I nominate Louis D. Brandeis of Massachusetts to be Associate Justice of the Supreme Court of the United States, vice Joseph Rucker Lamar."

Ever since George Washington had sent his first nomination to the Senate seeking its advice and consent, such requests had normally been honored quickly and with a minimum of fuss; this had been especially true of the honor-laden appointments to the nation's highest tribunal. But when Wood-row Wilson named Brandeis to the Court, he precipitated a four-month battle in which nearly every facet of the nominee's life and career were examined in minute detail. Brandeis himself never appeared before the Senate committee weighing his qualifications; this was still the era in which major parties, after their presidential conventions, sent a delegation to the successful candidate to inform him of the decision and secure his assent to run for office.

The Brandeis nomination fight remains a fascinating event for historians to examine. Few episodes in American history shed so much light on their era; in the line-up of supporters and detractors can be found one of the clearest demarcations of those whom we can label as "progressives" and those opposed to the reformist movement. For despite the injection of some religious and social prejudices into the debate, the major issue at all times was whether or not an alleged "radical" should be admitted into the sacrosanct–and conservative–citadel of the law.

Historians now recognize that many of the leading progressive reformers were, at heart, deeply conservative, and this judgment is certainly true of Louis Dembitz Brandeis. Born in Louisville in 1856, he grew up in an America undergoing rapid industrialization and suffering from its effects. The simple and seemingly more democratic, egalitarian society of Jefferson, where individual opportunity beckoned to each man, was giving way to a highly structured oligopolistic society, in which wealth and power were increasingly concentrated in the hands of a small group of socially irresponsible men. For Brandeis, this brave new world, despite its material comforts, compared poorly with the idealized notion of what America had been and should be; the reforms he supported essentially aimed at recreating an earlier society, which, in myth at least, approximated the Jeffersonian ideals. One of the ironies of the entire nomination battle is the fact that this essentially conservative man was branded a radical.

There had been little to mark Brandeis as a reformer, much less a radical, in his early years. After a brilliant career at the Harvard Law School, he and Samuel Warren, the scion of a socially prominent and prosperous Massachusetts family, opened a successful law practice in Boston. Brandeis's brilliance soon had clients flocking to the office, and by 1890, at the age of 34, he was earning well over $50,000 a year when 75 percent of the lawyers in the country made less than $5,000 annually. He had recognized the need for a lawyer to be more than just an advocate; one had to counsel clients, advising them on business matters and how to avoid expensive litigation. In his office he urged his younger associates to specialize, to cultivate men of affairs, and to study business practices and problems. As the nineteenth century drew to a close, Louis Brandeis gave every indication of becoming just another prosperous corporate lawyer.

But success and wealth for their own sake did not interest him Unlike many other attorneys of his day, he had a social conscience. His years at Harvard and in Boston had brought out a latent puritanism, a belief that man must not only live his life by high principles, but was also obligated to help society improve itself. Beginning in the late 1890's Brandeis involved himself in reform work, first in municipal matters, then in Massachusetts affairs, and finally on the national stage. He fought corrupt traction companies in Boston and devised a sliding scale rate system which removed the gas company from politics. In response to the great insurance scandals, he proposed savings bank life insurance, and then organized a citizen lobby to push it through the legislature. He took on the power of the New York banking interests when he opposed the merger of the New Haven and the Boston & Maine railroads. His articles in numerous journals also made him one of the leading muckrakers of the day.

Two incidents brought Brandeis to national attention. In 1907 he defended an Oregon law establishing a ten-hour day for women. The Supreme Court had invalidated a similar New York law in 1905, but had allowed that the police power of the state could be invoked if legitimately warranted. In his brief in Muller v. Oregon, Brandeis set out only two pages of legal precedents in support of the statute, and then over 100 pages of sociological aid economic data to prove that Oregon had reasonably exercised its powers to meet the problem. Three years later, Brandeis served as counsel for Collier's magazine in the Pinchot-Ballinger hearings, and his relentless pursuit of the facts led to the exposure of President Taft's attempt to whitewash his Secretary of the Interior.

By 1912 Brandeis had won a national reputation as a reformer, respected by Theodore Roosevelt and Jane Addams and a close friend of Robert M. LaFollette. When the Wisconsin senator dropped out the presidential race, Brandeis decided to support New Jersey governor Woodrow Wilson. The "People's Attorney" took to the stump for the Democratic candidate, and his memoranda and articles provided the intellectual basis for the New Freedom's economic proposals. In order to deal with the problem of monopoly, Brandeis and Wilson wanted the government to regulate competition and not, as Roosevelt's New Nationalism urged, regulate and thus legitimize monopolies. After Wilson entered the White House, he wanted to have Brandeis in his Cabinet, but political pressures from within the Democratic Party, which had nothing to do with Brandeis's qualifications, kept the Bostonian out. Without any official status, however, Brandeis remained a trusted advisor of the president, helping to write both the Federal Reserve Act and Clayton Antitrust Law, and devising the Federal Trade Commission. During these years, Brandeis also became the leader of the renascent American Zionist movement.

Ironically, one of the most important aspects of Brandeis's career and one which should have been closely examined by those who sought to evaluate his qualifications as a judge, was his role as an articulate spokesman for the new jurisprudence. From the time he had heard Oliver Wendell Holmes deliver the Lowell Lectures in 1880 on the Common Law, Brandeis had been committed to the concept of a living law. "In all our legislation," he told a congressional committee. "we have got to base what we do on facts and not on theories." He called for the "socialization" of legal training, whereby "lawyers should not merely learn rules of law, but their purposes and effects when applied to the affairs of man." The lawyer who did not study sociology and economics, he warned, ''is very apt to become a public enemy."

All of these traits–his reform work, his sage counsel and legal philosophy–recommended Brandeis to Wilson. But there were also political considerations to take into account. Joseph Lamar had been from Georgia, and southerners might insist that his replacement also be drawn from Dixie. Neither Massachusetts senator, the patrician Henry Cabot Lodge nor John W. Weeks, sympathized with Brandeis's reformist beliefs, and if they chose to exercise senatorial prerogative, the entire body might turn Brandeis down in deference to their request.

On the other hand, Wilson had been elected in 1912 by a plurality of only 42 percent, a little over 6.3 million votes out of the 15 million cast. In 1916 it appeared that Theodore Roosevelt would return to the Republican Party, and conceivably could take many of his progressive followers with him, unless Wilson could establish beyond doubt his own credentials as the progressive leader. By naming Brandeis, a man recognized and respected by all reform groups, Wilson could in one grand gesture claim the high ground of reform for himself. To be sure that progressives would support the nomination, the president consulted with two men–his own Attorney General, Thomas W. Gregory of Texas, and Robert M. LaFollette, head of the insurgent wing of the Republican Party and an acknowledged leader of progressive thought. Gregory may have been the first to recommend Brandeis to fill the Supreme Court vacancy, while LaFollette, an old friend and ally of Brandeis, was delighted and promised to do all he could to support the nomination.

Wilson now had to see if Brandeis would accept the call. The Boston attorney's entire life had been one of action rather than contemplation; would he be willing to leave the arena for the isolation of the Court? After careful consideration, Brandeis accepted. "I am not exactly sure," he wrote his brother, "that I am to be congratulated, but I am glad the President wanted to make the appointment and I am convinced, all things considered, that I ought to accept." Alice Brandeis reflected her husband's ambivalence: "I had some misgivings for Louis has been such a 'free man' all these years but as you suggested–his days of 'knight erranting' must have, · in the nature of things, been over before long."

The announcement of January 28th, as Wilson had anticipated, stirred up a rumpus. Progressive reformers were delighted, and showered both the president and his nominee with hundreds of congratulatory messages. The Boston Post, the New York World and other liberal papers cheered the news. Former Massachusetts governor David I. Walsh called the nomination "admirable in every way. Mr. Brandeis is a real progressive, with a profound knowledge of the law, and is certain to prove one of the great jurists that has ever sat on the Supreme Bench." Numerous Zionist and labor organizations vigorously applauded the appointment both for the honor it brought to Brandeis as well as for the implicit recognition of the justness of their own causes.

The conservatives reacted with shock and horror. The New York Sun deplored the appointment of a radical to "the stronghold of sane conservatism, the safeguard of our institutions, the ultimate interpreter of our fundamental law." Ex-president William Taft, who had vainly hoped that Wilson would "rise above politics" to name him to the bench, declared that "it is one of the deepest wounds I have had as an American and a lover of the Constitution and a believer in progressive conservatism, that such a man as Brandeis could be put on the Court." Brandeis, the New York Times complained, "is essentially a contender, a striver after change and reforms. The Supreme Court by its very nature is the conservator of our institutions."

There was also a muted note regarding the nominee's religion. For the cruder bigots, the very fact that Brandeis was Jewish was enough reason to bar him from the temple of the law. The New York Sun, for its part, complained that Wilson hoped to capture the large Jewish vote in New York through this gross manipulation of patronage. William Taft asserted that he held nothing against Brandeis for being Jewish; rather the Bostonian was an opportunist who had only embraced Judaism and Zionism to further his own political 'ambitions.

On the whole, the religious issue played only a minor role, although there is no doubt that many members of the upper-class, Protestant elite felt uncomfortable about a Jew reaching such an exalted position. As for the charges that Wilson hoped to win the Jewish vote through the appointment, the fact is that most Jews were already in the Democratic camp; if anything, Wilson might have worried about losing the votes of those who feared or hated Jews. Wilson's political designs were surely those of appealing to progressives, and if nothing else, the appointment did make the battle lines clear. For his backers, Brandeis was a liberal and a reformer, a prophet of a humane law, the type of man the Supreme Court desperately needed; to his opponents, Brandeis appeared utterly untrustworthy, radical and a demagogue, who at all costs had to be kept off the nation's highest tribunal.

Both sides quickly set about preparing their cases to present to the Senate subcommittee which had been appointed to investigate Brandeis's qualifications. Former president Taft and his one-time Attorney-General George W. Wickersham began marshalling opposition among the pillars of the American Bar Association. Clarence Barron, publisher of the business-oriented Wall Street Journal, unleashed a barrage of charges and innuendoes about Brandeis's supposed chicanery as a lawyer. In Boston the Brahmins determined not to let this viper in their midst enter the hallowed chambers of the Court. Here they counted upon Henry Cabot Lodge, who socially and intellectually detested all that Brandeis stood for, to lead the battle. But Lodge faced a quandary. With the passage of the Seventeenth Amendment, he would no longer be returned to the Senate by a conservative state legislature, but would have to run for the office in 1916. Among the great unwashed who, regrettably, could now vote, Brandeis was a hero, and Lodge had no desire to alienate those whose ballots he would need. To his correspondents Lodge urged that the lawyers in the Senate would gladly listen to their peers; let the bar associations testify to Brandeis's lack of character and his unfitness for the bench. In letter after letter Lodge called upon those who had influence and prestige to gather their forces and make clear that people of quality had no faith in Brandeis's integrity.

"People of quality," especially in Boston, eagerly responded to Lodge's appeal. A. Lawrence Lowell, president of Harvard, reflected the problem that Boston's leaders had in trying to fight the appointment. "Are we," Lowell asked, "to put on our Supreme Bench a man whose reputation for integrity is not unimpeachable? It is difficult–perhaps impossible–to get direct evidence of any act of Brandeis that is, strictly speaking, dishonest; and yet a man who is believed by all the better part of the bar to be unscrupulous ought not to be a member of the highest court of the nation." Lowell's analysis accurately foretold the course of four-month attack on Brandeis: many improprieties were attributed to Brandeis but nothing concrete could be proved; however, if so many "proper" people believed Brandeis to be untrustworthy and dishonest, there must be some truth to the charges; finally, even if Brandeis was totally honest, no man whom so many people mistrusted should be a member of a court which must be above reproach. As Lowell noted, Brandeis's "general reputation, as you know, in the better part of the Suffolk [Boston] bar is not what that of a judge should be."

Those backing the nominee also prepared their case. Publicly Brandeis refused to say anything. When a New York Sun reporter asked if he had heard about certain charges against him, Brandeis replied: "No, I have not. I have nothing to say about anything, and that goes for all time and to all newspapers, including both the Sun and the moon." Privately, however, Brandeis played a central role in directing his defense. He fired off dozens of letters to Edward F. McClennen, a junior partner in his firm, who moved to Washington during the hearings to provide rebuttal evidence against the opposition charges. In these missives Brandeis responded carefully and minutely to every question raised about the propriety of his actions as a lawyer. They form an apologia pro vita, the nearest thing we have to a Brandeisian autobiography.

Aside from the aspersions cast upon his character and career, Brandeis found the episode extremely trying. By nature he was a man used to speaking for and defending himself, but he acceded to Attorney-General Gregory's advice not to appear personally before the subcommittee, and thus give the hearings an atmosphere of a trial, with himself as the defendant. Instead he had to rely on his associates and friends, and frequently they acted, wisely or not, in a more cautious and circumspect manner than Brandeis would have preferred. He wanted to defend his reputation and integrity; they wanted to establish his "judicial" character, and this required a deliberate downplaying of the combatant role. While he chafed in Boston, Brandeis attempted to maintain a casual demeanor. To his brother he wrote: "The Justiceship ist ein bischen langweilig [a little boring], but I am leaving the fight to others and we are getting a pretty nice issue built up. . . . Now my feeling is rather 'Go it husband, Go it bear' with myself as "interested spectator.'

The "interested spectator" nonetheless carefully combed his files for relevant documents, sent his supporters lists of names of people who could testify as to his ability and character, and kept different allies from inadvertently interfering with each other's work. More than most people, he realized the symbolic as well as the substantive issues involved. That "the fight has come up," he confided, "shows clearly that my instinct that I could not afford to decline was correct. It would have been, in effect, deserting the progressive forces."

The arena of the fight was the ornate Senate Judiciary Committee room in the Capitol, where the five-man subcommittee opened its hearings on February 9. Chairing the group was William E. Chilton, an intensely partisan Democrat from West ,Virginia not known for any great judicial or intellectual acuity. An equally undistinguished member was Duncan Fletcher of Florida, a man interested primarily in the price of farm products. The third Democrat was Thomas J. Walsh of Montana, at 56 the youngest member of the subcommittee; it was Walsh who eventually assumed the leading role in the hearings, pressing witnesses to be precise and calling for facts rather than rumors. On the Republican side sat the aging Clarence Clark of Wyoming, a Senate veteran of 21 years who would soon be replaced by another colorless Republican stalwart, John D. Weeks of California. The fifth member was also a Republican, but Albert Baird Cummins of Iowa was nationally known as a progressive, and there were some who hoped that he would vote conscience rather than party. But Cummins had his eye on the presidency, and did not care to take a stand which might offend potential conservative supporters.

The first few days of hearings were rather chaotic, with charges and rebuttals flying around the room. The first witness was Clifford Thorne, chairman of the Iowa Board of Railroad Commissioners , a man with a reputation as a reformer. Thorne charged Brandeis with being "guilty of infidelity, breach of faith, and unprofessional conduct in connection with one of the great cases of this generation." In the Five Percent Case of 1913, Thorne had represented midwestern shippers opposed to the railroads' requested rate increases. Brandeis had been invited by the Interstate Commerce Commission to serve as "counsel to the situation," that is, to advise the I.C.C. on matters relating to the fairness of rates to both shippers and roads. Thorne conceded that Brandeis had not been hired by the shippers, but declared that the Boston attorney had "betrayed" the public interest by supporting a larger rate of return than did Thorne's clients. Amazingly, this initial testimony questioning Brandeis's fitness centered on the nominee's alleged tenderness toward business. Brandeis's opponents were hardly enthralled by this turn of events. "If what Thorne had to say against Brandeis is all there is," wrote William Taft, "I should not regard it as a serious matter." Taft waited hopefully for more damning evidence to be introduced.

Over the next few days, serious charges were indeed presented to the committee by men who had tilted with Brandeis in either business or reform matters; it turned out that in nearly every case they had been on the losing side, and now complained of Brandeis's tactics and activities. Finally, on February 16 the opposition moved to coordinate its campaign by bringing in Austen George Fox, a 66-year old Wall Street lawyer well connected with America's business community. As Senator Fletcher explained, Fox had come to Washington "at the request of and under employment by certain of those who oppose the confirmation of Mr. Brandeis. He suggests that he could arrange the testimony in an orderly way and see to the presentation of the facts supporting the opposition to the confirmation."

That same day, Fletcher announced that George W. Anderson, a United States attorney in Boston, had been added to the subcommittee's staff to see "that the other side is presented, to the end that the truth may be determined." Anderson had been an ally of Brandeis in a number of civic campaigns, and although they had parted company on some issues, the two had remained friends. His own knowledge of Brandeis's activities, backed up by Ned McClennen's copious memoranda, would now insure that an adequate rebuttal would be made to all attacks, and that hostile witnesses would no be able to attack Brandeis without substantiating their charges. Yet with the appointment of Fox and Anderson, the subcommittee hearings became just what Gregory had feared, a trial with the defendant absent from the dock.

The main problem of the opposition was that it could not prove that anything Brandeis had done was illegal; all Fox could establish was that Brandeis's manner of practicing law had been unusual. Frequently Fox's witnesses wound up buttressing the case for Brandeis. For example, Fox called New York lawyer Waddill Catchings to the stand in an effort to show that Brandeis, while acting for one side in the 1907 proxy fight for control of the Illinois Central Railroad, had secretly served as an attorney for the Harriman interests. Catchings at the time had been associated with Sullivan & Cromwell, and had gone to Boston to secure Brandeis's services. As it turned out, this work was unrelated to Illinois Central matters and took place afterwards. Moreover, Catchings said, he had been warned that the Boston firm would not accept the business "unless Mr. Brandeis was convinced of the justness of our position. . . . I accordingly had to lay the situation before Mr. Brandeis, and I may say that the hardest interview I had during the whole campaign was with Mr. Brandeis in convincing him of the justness of our cause, so to speak."

Several other witnesses called by Fox also slipped out of his hands, and their testimony merely confirmed the unorthodoxy of Brandeis's legal career rather than any wrongdoing. Ironically, the problem frequently appeared to be that Brandeis had been called in not as an advocate but as "counsel to the situation." In trying to be fair to both sides, in trying to be judicious, he had left some of the participants unsure as to just where he stood. Brandeis's impartiality thus became a reason for barring him from judicial office!

If any one conclusion could be derived from the hundreds of pages of testimony taken in the hearings, it was that Brandeis as a lawyer did not conform to the model deemed acceptable by Boston's State Street establishment and their allies in New York's financial district. Among Boston lawyers, Moorefield Storey declared, Brandeis's reputation was "that of a man who is an able lawyer, very energetic, ruthless in his attainment of his objectives, not scrupulous in the methods he adopts, and not to be trusted." Yet Storey, like the others who echoed this opinion, could not pinpoint a single instance of unethical behavior.

What angered the Brahmins is that Brandeis, a graduate of Harvard Law and a man who had given every indication of becoming a fine–and trusted–corporate lawyer, had broken away to become a reformer, and the targets of his reforms were frequently Boston's social and economic elite. Moreover, the puritanical Brandeis, who had to be convinced of the rightness of a client's case, did not mix easily with this elite. As one witness explained: "I think if Mr. Brandeis had been a different sort of man, not so aloof, not so isolated, with more of the camaraderie of the bar, gave his confidence to more men, and took their confidence…you would not hear the things you have heard in regard to him. But Mr. Brandeis is aloof."

How isolated Brandeis was from Boston society and the legal establishment could be seen from the nature of the opposition outside the committee room. At William Howard Taft's behest, he and six other former presidents of the American Bar Association sent a letter to the subcommittee declaring that "in their opinion taking into view the reputation, character and professional career of Mr. Louis D. Brandeis, he is not a fit person to be a member of the Supreme Court of the United States." In Boston, fifty-five prominent citizens, headed by Harvard's A. Lawrence Lowell, signed a petition opposing confirmation. "We do not believe," they wrote, "that Mr. Brandeis has the judicial temperament and capacity which should be required in a judge of the Supreme Court. His reputation as a lawyer is such that he has not the confidence of the people."

The real nature of the complaint was easily perceived: Proper Boston resented this outsider, this Jew, who adhered more closely to the old Massachusetts principles than they did, who was too successful (i.e. not "gentlemanly") in his profession, and who had defeated them time after time.

J. Butler Studley, a lawyer in Brandeis's office, drew a chart showing how all fifty-five were interconnected through private clubs, corporate directorships, Back Bay residences and intermarriage. As Walter Lippman (himself a Harvard graduate) editorialized in the New Republic, Brandeis had been found guilty of being "a rebellious and troublesome member of the most homogeneous, self-centered, and self-complacent community in the United States…..He was untrustworthy because he was troublesome. He was disloyal, if at all, to a group." As Charles Francis Adams had earlier written: "I have tried Boston socially on all sides. I have summered and wintered it, tried it drunk and tried it sober, and drunk or sober there is nothing in it save Boston. . . . It is, so to speak, stationary– a world, a Boston world unto itself, and like all things stationary, it tends to stagnate."

Finally, on March 15, the subcommittee hearings dragged to a close. Fox still wanted to parade several dozen more "character" witnesses before the senators, but even the Republicans had had enough. As the five legislators .retired to deliberate, Brandeis's opponents stepped up their campaign, and their actions certainly smacked more of professional misconduct than anything they had alleged against Brandeis.

Austen Fox and his colleague, Kenneth Spence, prepared an official-looking document which on first glance appeared to be the report of the subcommittee. In it, they rehashed all of the allegations presented in the hearings, and came to the obvious conclusion that Brandeis was unfit to hold public office. The attack was mailed broadside to nearly every lawyer in the country, and many of them protested about the mendacious nature of the piece. An even more underhanded attack was the circulation of the totally discredited canard that Brandeis had been a go-between in the so-called "Peck Affair." According to rumors, Wood-row Wilson had written extremely amorous letters to a Mrs. Peck shortly after his first wife's death. When he became engaged to Edith Bolling Galt, the president wanted to retrieve these embarrassing documents, and two Jewish lawyers, Louis Brandeis and Samuel Untermyer of New York, procured them by paying Mrs. Peck $75,000. Soon afterwards, Wilson named Brandeis to the Supreme Court as his reward.

On April 3, the subcommittee announced its decision. By a three to two vote along party lines, it had approved the Brandeis nomination. Senators Chilton and Fletcher wrote the majority report; Senator Walsh concurred in a separate and more emphatic statement; both Cummins and Works sent in lengthy and strongly-worded condemnations of the nominee. The scene now shifted to the full Senate Judiciary Committee, where the outcome remained very much in doubt.

Responsibility for shepherding the nomination through the committee passed from Chilton to Charles A. Culberson of Texas, an eighteen-year veteran of the Senate now suffering from paralysis-agitans. Culberson could no longer deliver speeches; he could hardly utter two sentences without his affliction causing him to stutter badly. But his mental facilities were still acute, and Culberson recognized that while the eight Republican members would oppose the nomination, not all of the ten Democrats were fully sympathetic. Chilton, Fletcher and Walsh could be counted upon; Culberson would support Brandeis out of deference to the president's wishes; and young Henry Ashhurst of Arizona favored the appointment.

All of the remaining five Democrats had some reason why they might vote in the negative. Lee Overman of North Carolina had once been a railroad president, and Brandeis had been a foe of railroad rate increases. James O'Gorman of New York was at odds with Wilson, and might vote no just to spite the president. Jim Reed of Missouri had his eye on the 1920 Democratic presidential nomination, and he wanted to see which way the political winds were blowing before committing himself. John Knight Shields of Tennessee and Hoke Smith of Georgia were both uncommitted and unpredictable.

Because of the uncertainty of the vote, and the approaching party conventions (which kept a number of senators out of Washington), Culberson did not try to rush matters. Throughout April the matter hung in limbo in committee while Brandeis's foes continued to unload barrage after barrage of "evidence" regarding his unfitness. In turn, the nominee's advocates issued rebuttal statements, and at times even went on the offensive regarding the intentions and scruples of Brandeis's detractors. At the end of April, three months after Wilson had sent in the nomination, the vacancy on the Court remained unfilled, with no sign that either the Judiciary Committee or the Senate would act soon. Then the dam broke, as Wilson, Brandeis and their allies moved from apathy to action, from defense to attack.

From Harvard, Felix Frankfurter and Roscoe Pound rounded up seven of the nine Law School professors to sign a strongly-worded letter testifying to Brandeis's legal ability and integrity. Moreover, they pointed out that if Brandeis's character had been so terrible, why had he been awarded an honorary MA, from Harvard, and continuously appointed to the Law School's Board of Visitors, a committee made up of outstanding men in the legal profession. An even more impressive message came from the venerated Charles W. Eliot, president emeritus of Harvard. "I have known Mr. Brandeis for forty years, and believe that I understand his capacities and his character," Eliot wrote. As a student, Brandeis "possessed by nature a keen intelligence, quick and generous sympathies, a remarkable capacity for labor, and a character in which gentleness, courage and joy in combat were intimately blended. His professional career has exhibited all these qualities, and with them much practical altruism and public spirit." Eliot conceded that on some matters he and Brandeis had disagreed, but these differences had never led him to question Brandeis's ability or integrity. Brandeis's rejection, Eliot concluded, "would be a grave misfortune for the whole legal profession, the court, all American business and the country."

An even more important letter came to Culberson from the White House. Woodrow Wilson finally realized that confirmation, which he had confidently expected to come in due time, was now in jeopardy. Culberson told the president that a number of Democrats would support Brandeis if they believed that Wilson really wanted him confirmed; if it were not a party matter, they might abstain or even vote against the candidate. Wilson had to make clear, to the senators and to the American people, that he did indeed support Louis Brandeis. Wilson asked Attorney-General Gregory to prepare a memorandum, and from it he wrote a letter to Culberson on May 5:

"I have tested [Brandeis] by seeking his advice upon some of the most difficult and perplexing public questions about which it was necessary for me to form a judgment. I have dealt with him in matters where nice questions of honor and fair play, as well as large questions of justice and public benefit, were involved. In every matter in which I have made test of his judgment and point of view I have received from him counsel singularly enlightening, singularly clear-sighted and judicial, and, above all, full of moral stimulation. He is a friend of all just men and a lover of the right; and he knows more than how to talk about' the right–he knows how to set it forward in the face of his enemies. I knew from direct personal knowledge of the man what I was doing when I named him for the highest and most responsible tribunal of the nation."

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Two Men For All Seasons

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas–that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught. with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Holmes, J., dissenting in Abrams v U.S., 250 US 616, 630 (1918).

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

Brandeis, J., concurring (with Holmes) in Whitney v California, 274 U.S. 357, 377 (1926).

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Wilson now sent his Secretary of the Navy, Josephus Daniels, to talk to Hoke Smith of Georgia about Brandeis. And on Sunday evening, May 14, both Smith and Jim Reed dropped in for a drink at the Washington apartment of journalist Norman Hapgood to discover that Louis Brandeis was there. Reed had intended to stay for just a moment, and in fact had left Mrs. Reed waiting in the car. But he lost track of time as he and Brandeis sat on the couch and spoke for more than an hour. By the time he left, Reed had sized up all of the political factors and had been impressed by the nominee; he would vote for Brandeis. A similar conversion took place when Brandeis turned to Hoke Smith after Reed left; two more Democrats had fallen into line.

That Thursday, an unforeseen event took place 3000 miles across the Atlantic. A British court martial passed a sentence of death on Jeremiah Lynch, a naturalized American citizen and New York resident who had returned to his native land to participate in the Irish struggle for independence. Lynch's sentence was to be carried out at midnight, and Senator O'Gorman, the pride of New York's Irish community, suddenly forgot all of his old grievances against Woodrow Wilson and sought his help in preventing Lynch's execution. The next day's papers told the story of how Wilson, at O'Gorman's request, had cabled the American ambassador in London directing him to make every possible effort to save Lynch; the death sentence had been commuted to ten years in prison. O'Gorman was now a hero in New York, and he recognized that he owed a political debt to Wilson; one more vote for confirmation.

Two days later, a tired president sat on a special train carrying him from Washington to Charlotte, North Carolina. Wilson had reluctantly agreed to attend the annual celebration of the Mecklenburg Declaration of 1775 as a favor to Josephus Daniels and the two state senators. As the train approached Salisbury, Lee Overman's home town, the senator pleaded through Daniels for the president to stop for a brief appearance with Overman. Wilson at first declined, but the politically acute Daniels immediately saw the importance of such a gesture. Wilson agreed, and as Overman proudly introduced the President of the United States to his friends and neighbors, Wilson launched into an impromptu talk praising Overman and all those "forward looking men" who supported his programs and his appointments. As the train rolled back to Washington that evening, Josephus Daniels happily informed Wilson that Overman would vote for confirmation.

The last of the uncommitted Democrats was John Knight Shields. Wilson's son-in-law, Secretary of the Treasury William Gibbs McAdoo, had grown up in Tennessee, and he utilized all of his old contacts to get the message through to Shields that Tennesseans supported the president's nomination. Wilson himself went out of his way to consult Shields on several minor matters. Since Tennessee's other senator, Luke Lea, had been defeated in the Democratic primary, Shields now realized he would be the state's senior senator, and his ability to influence patronage at home would depend upon maintaining good relations with the White House.

The troops had been rallied, and Culberson scheduled the vote on the appointment for Wednesday morning, May 24. By a straight party vote of ten to eight, the full Judiciary Committee recommended that Brandeis be confirmed. Victory was now certain. Because of the party lineups in both the Judiciary Committee and the subcommittee, Democrats in the full Senate could be counted upon to support the president's man as a matter of party discipline.

The end came a few minutes before 5:00 P.M. on June 1, 1916. The Senate galleries were cleared as the solons went into executive session. At 5:30 the doors were thrown open, and Vice President Thomas Marshall announced that Louis D. Brandeis had been confirmed as Associate Justice of the Supreme Court by a vote of 47 to 22. Of the Democrats, only Newlands of Nevada had voted no. On the Republican side, three insurgent progressives, LaFollette of Wisconsin, George Norris of Nebraska and Miles Poindexter of Washington voted' for Brandeis, and two others, Clapp of Minnesota and Gronna of North Dakota were absent but paired on the Aye side.

While the Senate was still in executive session, Brandeis had left his office and taken the late afternoon train to his summer home in Dedham. As he opened the door, his wife greeted him with "Good evening, Mr. Justice Brandeis." The long fight was over. At the age of sixty, one of America's leading reformers prepared to start a new career. Twenty-three years later, when he retired from the Court, the country was near unanimous in its appraisal that Brandeis had more than fulfilled the high hopes of his supporters and the faith of Woodrow Wilson; he had become one of the towering figures in the history of American constitutional development.

That June night in 1916, however, was one of anticipation as well as triumph. As Louis Brandeis read through the pile of telegrams that flooded into Dedham that evening, one in particular caught his eye. It read WELCOME, and was signed Oliver Wendell Holmes.

The Tribute of the Court

In ceremonies following the death of Justice Brandeis, the new Chief Justice, Harlan F. Stone, responded to various tributes with an address which contained the following passage:

He was emphatic in placing the principles of constitutional decision in a different category from those which are guides to decision in cases where the law may readily be altered by legislative action. He never lost sight of the fact that the Constitution is primarily a great charter of government, and often repeated Marshall's words: "it is a constitution we are expounding" "intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs." Hence, its provisions were to be read not with the narrow literalism of a municipal code or a penal statute, but so that its high purposes should illumine every sentence and phrase of the document and be given effect as a part of a harmonious framework of government. Notwithstanding the doctrine of stare decisis, judical interpretations of the Constitution, since they were beyond legislative correction, could not be taken as the final word. They were open to reconsideration, in the light of new experience and greater knowledge and wisdom. Emphasis of the purposes of the Constitution as a charter of government, and the generality of its restraints under the Due Process Clause, precluded the notion that it had adopted any particular set of social and economic ideas, to the exclusion of others which fairminded men might hold, however much he might disagree with them. He was the stalwart defender of civil liberty and the rights of minorities. In the specific constitutional guaranties of individual liberty and of freedom of speech and religion, and in the adherence by all who wield the power of government to the principles of the Constitution, he saw the great safeguards of a free and progressive society. (317 U.S. XLVII.)