The great trustbuster is about to become the first Jewish member of the Supreme Court.
There is a haunting quality in the face of Louis Dembitz Brandeis which was more vivid when I first saw it, about a dozen years ago, than it is now, but not till some time had passed was I able to define it. Then, happening upon a portrait of Abraham Lincoln, taken at the same age, I recognized the resemblance. The nose was different, Brandeis’s being his most obviously Hebraic feature whereas Lincoln’s was distinctly a gentile origin; but the shape of the face, the growth of the hair in a shock which calls for taming by discipline from without, the mild expression with the instinct of pugnacity behind it held in restraint, the drawn-in corners of the mouth, the contemplative, perhaps prophetic, eyes under lids that if left to themselves would droop — all these things are paralleled so well in the two men that a composite portrait would probably show little blurring of the lines. Lincoln’s face, also, was a haunting one. I saw it only a little while before his first inauguration, and it lingers still in my mind, though I was a mere school-boy at the time. The beard, which is so conspicuous an element in the portraits familiar to the younger generation of today, had just begun to grow. His earlier portraits show him beardless, as Brandeis is. Lincoln had a way of slouching down in his chair when not actively engaged at something, and so has Brandeis; this makes further for the resemblance in their general physiognomy, particularly when Brandeis, in a lolling position, lets his chin half rest on his breast.
Lincoln was most noted for his leadership of men, Brandeis for his advocacy of causes and his energy as a propagandist. If any one had nominated Lincoln for a high judicial office, demanding calm and dispassionate judgment on questions involving individual rights, rather than the larger human rights, the establishment of permanent legal precedents, and the scrupulous linking of any forward movement of his own along a certain line with the last stage of his predecessors’ progress along the same line, the proposal would have drawn forth as vigorous a protest as has the nomination of Brandeis for a seat on the Federal Supreme bench, and no small part of the uproar would have proceeded from quarters where sympathy with the ideals cherished by the nominee was beyond cavil as to sincerity. It would have been based on the not unreasonable assumption that you waste good material, and improve neither the victim nor his environment, when you transplant a skilled mechanic from his shop into a sculptor’s studio, or set a sculptor to building stone bridges. The imaginative faculty which so broadens the product of one worker must be reduced to a minimum exercise in the work of another, and the obverse. Judicial capacity is a thing quite by itself, and public opinion insists that it must not be confounded with capacity of any other sort. There are many positions of honor and trust in the public service where a propagandist, or an earnest political partisan and leader, would fit very well, and could accomplish much, without undermining a common sentiment of confidence.
One of the facts which one hears cited on every side as an evidence of pharisaism in Brandeis is most unjustly thus attributed. I refer to his refusal to accept compensation for doing certain things in the line of his profession, but primarily helpful to the community at large. It is within the knowledge of his inner circle of friends that he and Mrs. Brandeis, when they were first married, decided, as a rule to govern their lives, not to let pecuniary considerations influence them in any matter in which their hearts and consciences were enlisted, and they simply have applied that rule so as to make it work both ways, for either profit or loss.
Comparatively recent history has been sprinkled with cases which in one way or another suggest analogies with the nomination of Brandeis. President Grant’s effort to promote Caleb Cushing comes at once to mind, the objection urged against Cushing being that he had been not too much, but too many different kinds, of a partisan to fill acceptably a high judicial office. There, also, were the two prominent New Yorkers whom, in succession, Cleveland struggled to put into the chair left vacant by the death of Justice Blatchford, but whose rejection was compassed, through Senatorial courtesy, by “Dave” Hill and “Ed” Murphy, who disliked their aggressive mugwumpery. It will be remembered, moreover, that the defeat of Messrs. Hornblower and Peckham resulted in the transfer of Mr. White, our present Chief Justice, from the Senate, where he had been the most efficient tariff exponent of the Louisiana sugar interests, to the serene atmosphere of the bench.
Aside from any question of the wisdom or unwisdom of Mr. Brandeis’s nomination in itself considered, there is general regret here that the President should have chosen this particular time to throw a bone of contention in among the multitude of citizens whose support, regardless of conventional party lines, he is soliciting in the crisis our foreign relations have reached. Old-fashioned politicians read in the nomination a bait for the Hebrew vote at the coming election, others of the more modern type interpret it as a coquettish move in the courtship of the now disorganized remnant of the Progressive party. Among the non-politicians, the President’s motive is assumed to be a desire to break through the traditions of the court before they have hardened into absolute immobility, and to procure for the cause of “social justice” a hearing in the private councils of the judges as well as at their public sessions as a tribunal. Whatever view may be right, Mr. Brandeis cannot be sneered out of the field; his enemies will have to fight him with the weapons of reason, and not of contempt or innuendo.