If approved, Garland would increase Jewish justices to all-time high

Above from left: Judge Merrick B. Garland, Justice Ruth Bader Ginsburg, Justice Elena Kagan, and Justice Stephen Breyer.

BY ROBERT A. COHN, Editor-in-Chief Emeritus

It is a shame that bitter political divisions could block serious Senate consideration of the nomination of Merrick B. Garland by President Barack Obama to fill the seat on the U.S. Supreme Court left by the late Antonin Scalia.  

If those political obstacles could be removed and Garland could be given a fair hearing and a confirmation vote by the Senate, his appointment would be historic from a Jewish point of view.

If confirmed, Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, would become the fourth Jew to sit on the present Supreme Court, a record number that is beyond historic from a number of perspectives. 

The religious composition of Chief Justice John Roberts’ Supreme Court is five Roman Catholics (Justices Roberts, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonia Sotomayor) and three Jews (Justices Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer). Scalia also was Catholic.

In his ceremonial talk at the White House after Obama announced his nomination, Garland spoke warmly and emotionally of his Jewish upbringing. He was born to a Jewish mother and a Protestant father and was brought up Jewish.

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Garland said his grandparents fled anti-Semitism in Europe in the early 20th century “hoping to make a better life for their children in America.” 

By all accounts, Garland is highly respected by Democrats and Republicans, liberals and conservatives. He is a judicial centrist and has been consistently fair-minded in his rulings from the bench. Unfortunately, in today’s poisoned political climate, Garland’s nomination might not even be given a fair hearing let alone an up or down Senate vote. It is hoped that wiser and less rabidly partisan heads in the Senate will relent and offer him the professional courtesy and the respectful hearings and vote that he deserves.

It is interesting to note that no one has raised the issue of Garland’s being Jewish as a factor even to be considered in evaluating his fitness to serve on the nation’s highest court.

Let us roll the clock back 100 years to January 1916, when President Woodrow Wilson nominated Louis D. Brandeis as the first Jew to serve on the Supreme Court. Like Garland of 2016, Brandeis of 1916 was highly respected and eminently qualified to serve as a Supreme Court justice. (Of note locally is that Brandeis started his first law practice in 1898, in downtown St. Louis.)

But Brandeis was explicitly targeted by overt anti-Semites not only among such hate groups as the Ku Klux Klan and the Know Nothings, but even by respected members of the American Bar Association and the faculty of Harvard Law School. Brandeis was accused of having an “Oriental mind,” which would disqualify him from service on the highest court serving the leading nation in the Western world.

The anti-Semitism that greeted Wilson’s nomination of Brandeis is detailed in a blog post on Huffpost Politics by Paul Finkelman, a professor of law at the University of Saskatchewan, and Lance J. Sussman, senior rabbi of Reform Congregation Keneseth Israel in Elkins Park, Pa., and member of the executive board of the American Jewish Archives. 

They write that the nomination of Brandeis “came at a high point of anti-Semitism in the United States. A year before Brandeis’s nomination, the Supreme Court refused, by a 7-2 vote, to overturn the conviction of Leo Frank, a Jewish businessman, whose trial had taken place in a circus-like atmosphere of Ku Klux Klan inspired anti-Semitic hysteria.”

The authors also point out that Brandeis’ confirmation took four months, still the longest in history.

In the end, the Brandeis nomination was a historical turning point, definitively undermining anti-Semitism in American political culture even though that toxic animus still lingers in some quarters of American society.

The sole major negative comment on the Jewishness of Garland and the fact that he would be a fourth Jew on the nation’s high court came from columnist and pundit Pat Buchanan, who has never been regarded as friendly to Jewish officials.

At the time of the Brandeis nomination, the Ku Klux Klan was not merely a ragtag group of a few hundred followers as it is today. At its peak, the Klan boasted more than 500,000 members nationwide and was able to stage a major walk down Pennsylvania Avenue in Washington. The Klan was anti-black, anti-Semitic and anti-Catholic, and was able to block the presidential nomination of New York Gov.  Al Smith, a Catholic, at the 1924 Democratic National Convention. 

Elizabeth Dias writes in Time magazine that “if he were confirmed, Garland’s addition would give the court the highest number of Jewish justices at one time in American history – setting that record for the second time in Obama’s presidency.” 

Brandeis served from 1916 to 1939, a period that included service with Jewish Justices Benjamin Cardozo (1932-1938) and Felix Frankfurter (1939-1962). 

Dias and other writers have noted the concept of a “Jewish seat” on the nation’s high court that continued in the years after Brandeis, Cardozo and Frankfurter. Justices Abe Fortas and Arthur Goldberg occupied the so-called Jewish seat before Ginsburg was named in 1993 and Breyer in 1994 by President Bill Clinton. 

Obama named Kagan in 2010, bringing the number of Jewish justices to a record three. Garland’s confirmation would break that record.

We are long past the notion that a Jew is unfit to serve on the U.S. Supreme Court because of an “Oriental mind” or that there must be a token Jewish seat on the nation’s highest judicial tribunal. As American Jews, we can of course be proud that eight Jewish Supreme Court justices have served with honor and distinction. 

If given the fair hearing and vote he deserves, there is every reason to believe that Garland would continue this tradition.