Brandeis and the ‘Empathy’ Issue


By Melvin I. Urofsky

Published June 10, 2009, issue of June 19, 2009.
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In January 1916, just a few days after Woodrow Wilson nominated Louis D. Brandeis to the Supreme Court, Gus Karger, a journalist and a friend of Wilson’s predecessor, William Howard Taft, told the former president that “many Senators who might base their opposition to him on sound and logical grounds, if he were a Presbyterian, are reluctant to take a stand, lest their opposition be misconstrued.”

Karger, of course, had in mind the fear that opposition to the first Jew named to the high court would be construed as antisemitism. Prejudice against Jews was, at the time, commonplace. Leo Frank was lynched in Georgia the summer before, and Brandeis’s nomination certainly sparked a fair amount of grumbling from antisemites. Boston lawyer William F. Fitzgerald ranted that “the fact that a slimy fellow of this kind… together with his Jewish instinct can [be appointed to the court] should teach an object lesson” to every true American. But with the exception of one minor mention, Brandeis’s religion did not come up during his bitter, four-month-long Senate confirmation hearings.

Sonia Sotomayor’s Hispanic background, notwithstanding her now famous comment about a “wise Latina woman,” will also not play much of a role in her confirmation, except insofar as it will redound to her benefit. Republicans, who have been marginalized by the last election and by their own failure to articulate a coherent program, do not want to alienate either women or the Hispanic community any more than they have already done.

Nor, it appears, will they be able to get much traction out of Sotomayor’s 17 years’ worth of opinions at both the district and appellate court levels. Preliminary reviews indicate a careful jurist who pays very close attention to the facts of the case, a stance that conservatives can hardly condemn.

Rather, like the Republican opponents to Brandeis nearly a century ago, they will attack her for her alleged non-judicial temperament, and they are already pointing with horror to President Obama’s stated criterion of “empathy,” which they say is a thin mask for liberalism and judicial policy-making from the bench.

Although President Wilson did not use the word “empathy,” he clearly had something very similar in mind when he named Brandeis, one of his close advisors, to the Supreme Court. Over the previous decade, the Boston lawyer had made a reputation for himself as one of the country’s leading progressive reformers.

In the landmark 1908 case of Muller v. Oregon, he had shown how creative legal argumentation could be used to defend progressive legislation — in this case a maximum hours law for working women. This horrified conservatives, who viewed the judiciary as their last line of defense against the masses in the protection of property rights.

Brandeis also had taken on the major insurance companies and exposed how they ripped off workers in so-called “industrial insurance,” and managed to get the Massachusetts legislature to approve a plan to establish low-cost savings-bank life insurance. He fought J.P. Morgan’s effort to monopolize New England transportation, and when the business interests tried to grab important mineral rights in Alaska, it was Brandeis who exposed the Taft administration’s connivance. Beyond that, Brandeis had taken over the leadership of the American Zionist movement in 1914, and through his charismatic leadership and organizational skills turned it into a potent player in American Jewish affairs, much to the chagrin of the conservatives like Jacob Schiff and Louis Marshall who headed the American Jewish Committee.

Wilson admired the “people’s attorney” because Brandeis put the interests of the common man and woman ahead of business or property rights. Brandeis spoke about “industrial democracy,” the idea that workers had to share in the decision-making processes, so they would be more productive, earn better pay and could then participate in the larger society.

His opponents saw this concern for the people as evidence of his “hatred” for business and property. “Where others were radical he was rabid,” ranted one newspaper, “where others were extreme he was super-extreme.” Brandeis, of course, was no radical; throughout his life he considered himself conservative but believed that in order to keep the best of our past, reforms were necessary to give workers decent wages, safe jobs and a chance to share in the American dream.

Brandeis did not come from a poor background. Unlike Sotomayor, who grew up in a Bronx housing project, Brandeis’s father was a prosperous grain merchant in Louisville, Ky. After his graduation from Harvard Law School, he himself became a successful attorney.

But starting in the 1890s, Brandeis began devoting an increasing part of his time to public service, and he refused to accept any remuneration for this work. American society had been good to him, and he believed it was his responsibility to do something in return. He became a strong advocate for those who, for one reason or another, had been pushed to the margins of politics and society. He may not have been one of the underdogs, but he had empathy for their problems and their striving, and believed that he had a responsibility to help them — not just for their benefit but for the good of society as well.

Sotomayor clearly shares this outlook, and conservatives who see the courts as bulwarks against popular aspirations will oppose her. And as in the case of Brandeis, they will lose. Whether she will, once on the court, do great things, as he did, will not be known for many years. As citizens, we can only hope.

Melvin I. Urofsky is the author of “Louis D. Brandeis: A Life,” to be published this September by Pantheon.

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