>> Good evening. I am David Ferriero, the
Archivist of the United States. It's a pleasure
to welcome you this evening to the William
G. McGowan Theater here at the National Archives
for our program on the The Jewish Justices
of the Supreme Court: From Brandeis to Kagan,
with author David Dalin. If you are here in
the theater or watching on our YouTube station
or C‑SPAN, thank you for joining us. We
are presenting this program in partnership
with the Jewish Historical Society in Greater
Washington and the Supreme Court Historical
Society. We thank them for their support.After
today's conversation Dr. Dalin will be signing
copies of his book in the lobby. Before we
get started I would like to tell you about
two programs coming up in this theater. Tuesday,
May 23rd, at noon, Marie Jenkin Schwartz will
be here to talk about her new book: Ties that
Bound Founding First Ladies and Slaves At
noon on the next two Wednesdays, May 24 and
May 31, we will be showing two parts of the
PBS documentary American Experience JFK, first
aired November 2013, we used archival film
and photographs to present a portrait of John
F. Kennedy in honor of his ‑‑ the centennial
of his birth. To learn more about these and
all of our public programs and exhibits, consult
our monthly calendar of events in print or
online. There are copies in the lobby, as
well as a sign‑up sheet where you can receive
it in regular mail or by E‑mail. Another
way to get more involved in the National Archives
is to become a member of the National Archives
Foundation. The foundation supports all of
our education and outreach activities. There
are applications for membership also in the
lobby. A little known secret I tell everyone,
no one has ever been turned down for membership
in the National Archives Foundation.
(LAUGHTER)
>> Upstairs in the rotunda, the original Constitution
of the United States, signed by the delegates
of the constitutional convention in 1787 is
on display. Every day of the week thousands of people come to view it. Many of them bend
down to examine the parchment through its
glass protection, some try to go read the
18th century script. The Constitution is the
foundation of our government and the standard
to which the Supreme Court of the United States
looks when it decides the cases that come
before it. The many Supreme Court case files
both appellate and original jurisdiction are
preserved here at the National Archives, as
are opinions, docket books, minutes,  attorney rolls,
with our earliest records starting in 1790.
We also have the audio recordings of the Supreme
Court, and the majority have been digitized
and are available online. We are working a
project to prepare all of the digital recordings
for our online catalog. We have to have them
available by September of this year. Since
its founding in 1934 the National Archives
has also hosted Supreme Court justices in
person as well as in its records. Some of
the justices we will discuss tonight have
had close connections with this agency. In
the 1950s, justice Felix Frankfurter served
on the board of the National Historic Publications
and records commission, followed by Justice
Brennan, Renquist Blackman and Sotor. And
in the 1960s Justice Arthur Goldberg served
on the archivist advisory council. Starting
in 2012 the National Archives launched a series
of conversations with Supreme Court justices
of the United States including associate
justice Stephen Breyer, Clarence Thomas, and
Samuel Alito, Yale law professor and constitutional
scholar Akhil Reed Amar leads these discussions focusing
on ideas, viewpoints and issues related to
the Constitution, and their impact on the
American people. Those are available on YouTube,
or ustream. Now, let's get to tonight's
program so we can learn more about these Supreme
Court justices. Please welcome to the podium,
Russell Smith, president of the Jewish Historical
Society of Greater Washington.
(APPLAUSE)
>> Thank you. Good evening everyone and welcome.
I am delighted on behalf of the Jewish Historical
Society and board members who are present
tonight to thank the National Archives, especially
Susan Clifton, for partnering with us for
this annual program to commemorate Jewish
American Heritage Month. We also want to thank
the Supreme Court Historical Society and its
staff for joining us in tonight's program.
A special thank you to Dr. Arnold Resnacoff,
a long time friend of the Jewish Historical
Society, who first suggested that Dr. Dalin
come to us as a speaker and help us connect
with both Dr. Dalin and Seth Waxman. What
a pair for tonight. I want to welcome Frank
Gilbert, a past president of the Jewish Historical
Society, who is also the grandson of Justice
Louis Brandeis. Thanks to Frank's generosity,
the society is fortunate to have in our collection
Justice Brandeis's law school notebook and a beautiful oil portrait. As many of you may know, the
Jewish Historical Society is planning a new
Lillian and Albert Small Jewish museum in
Washington as part of the capital crossing
development project, which is a few blocks
from here. Last November, our historic 1876
synagogue was cut from its base and moved
for the second time in its life 50 feet into
the middle of 3rd Street, Northwest, where
it's going to remain until the third and final
move to the newly reopened corner of 3rd and
F Streets, Northwest. And there it will become
the center piece of our brand new museum complex.
Tonight's topic of Jewish Supreme Court justices
is one that we plan to make a key element
in the museum's exhibition and programming.
Tonight I have the honor of introducing our
participants, and thereby fulfilling the society's
mission of joining history, current events,
and the promise of the future together to
tell one of the many stories of Jewish Washington.
Dr. David Dalin, historian and rabbi, is
the author, co‑author or editor of 11 books,
including: Religion and State in the American
Jewish Experience, co‑authored with one
of our prior panelists, Dr. Jonathan Sarna.
And the President of the United States and
the Jews. His articles and book reviews have
appeared in a variety of publications. Tonight
Dr. Dalin will talk about his just published
book, which many of you have in your hands,
Jewish justices of the Supreme Court from
Brandeis to Kagan, which has already received
excellent reviews since its release in April.
In this first history of the eight Jews who
have served or currently serve on the U.S.
Supreme Court, Dr. Dalin examines their lives
and legal careers, as well as the changing
role of Jews within the American legal profession.
Dr. Dalin will be joined in conversation
with Seth Waxman, who is himself a distinguished
leader in the Washington and national legal
communities. Mr. Waxman served as a 41st
solicitor general of the United States from
1997 until January 2001. After leaving government,
Mr. Waxman taught both as a visiting fellow
at Harvard University John F. Kennedy school
of government, and as a visiting professor
of the Georgetown University law center. Mr. Waxman
has argued 33 cases before the Supreme Court,
and has tried and argued dozens of other high
profile, complex, civil and criminal cases
in federal and state courts across the country.
So now I am sure, after all of that, you are
ready and I am too, it's my pleasure to invite
Dr. Dalin and Seth Waxman to the stage. Gentlemen?
(APPLAUSE)
>> Good evening. I am Seth Waxman, this is
the guest of honor Rabbi David Dalin. We couldn't
hear any of the introduction, because we were
being held in a secure location.
(LAUGHTER)
>> But the reviews of terrific. It's already
trending on Twitter.
(LAUGHTER)
>> Before we start, let me just say I think
I will ‑‑ I have about four and a half
hours worth of questions.
>> Good for you.
>> But I am going to limit myself to about
45 minutes and then, you know, assuming that
I can keep track of time, which I am not very
good at open it up to audience questions because
I find these things ‑‑ people are here
because they are interested, they have particular
questions and we have a great font of knowledge.
I am told that if you have a question you
should go to the aisle, to the microphone,
but I have to say, that I don't see any microphones.
(LAUGHTER)
>> Oh, okay. Well ‑‑ anyway, they will
magically appear. When you ‑‑ as you
are thinking of questions and thinking about
asking a question, once I open it up, in case
I forget to tell you, please make your way
to the mic because this program is being broadcast.
And in addition to the fact that either one
or both of us won't be able to hear you and
your fellow attendees may not be able to hear,
people in the television audience would like
to hear what your question is. Also, I want
to make sure in case the previous speaker
haven't already told you this, there is a
book signing immediately following the program.
And the author himself will be available to
answer questions and sign books. So, welcome.
So, we have ‑‑ Professor Dalin and I
met yesterday and we immediately agreed on
the convention that we would refer to each
other by our first names. So, David, let me
just start by asking you to tell us a little
bit about yourself and your professional journey.
You know, I know you are an Ordained Rabbit,
and you are an author of many articles and
books about American Jewish political history.
How did you get to, you know, what is your
story before picking up the pen to write this
book?
>>Well, Seth, that's a great question. I want
to thank you, I am honored to have you at
my interlocutor for this conversation. So
I am actually an Ordained Rabbit, but most
of my work is as an American Jewish historian.
And I have ‑‑ my biggest field of interest
is American Jewish political history and biography.
And I have co‑authored a book on the Presidents
of the United States and the Jews, and I
have written major articles, not only about
Jews and the presidency, but the presidential
appointment process, and the various presidents
appointed Jews to their cabinet and other
offices and the relationship of the appointment
process to the Jewish community. Through that
I became tremendously interested with the
whole subject of Jewish appointees to the
Supreme Court and their relationship also
to the presidents who appointed them, and
also to their lives and legal careers and
Jewish personas as well. Many years ago I
became fascinated with Brandeis, with Louis
Brandeis. And of course I attended Brandeis
University, as did my daughter. I began reading
biographies of Brandeis, that led me into
judicial biographies of several people, and
I gravitated more and more to the Jewish justices.
And after you read ‑‑ there are several
biographies of Brandeis, Cardozo or Frankfurt
or even two or three of Abe Fortas, I thought
it would be interesting ‑‑ there has
never been a book bringing it up to the present.
This book actually goes to the 2016 election.
So, this is, as I think was said before, not
only the first history of the Jewish justices
who have served in the past, or who currently
serve on the Supreme Court, but also a collective
biography as it were of the Jewish men and
women who served on the court. It's been an
abiding interest for many, many years. And
I finally decided ‑‑ it was a choice
between two things. I have written about Jews
and baseball.
(LAUGHTER)
>> Which could be a future book. But I finally
decided on the Jewish justices instead.
>> Well, I will be very happy to come interview
you about the forthcoming Jews in baseball.
>> That's a deal.
>> Jews in squash, Jews in polo, whatever
it is that you choose ‑‑
>> And those are two areas I haven't even
thought about. Jews in squash will be a ‑‑
would be a relatively small chapter.
>> The ball is small, but I think without
doing the research, as a historian, you may
appreciate there is a lot of surprises.
>> You are right.
>> Right in the National Archives.
>> In fact, yes. In fact, God willing, if
this book comes I will come to the National
Archives because I know a lot about Jews and
baseball, a little bit about Jews and basketball,
but precious little about Jews in Polo and
squash. So this will be an incentive. I will
E‑mail you immediately when I begin work
on that.
>> Terrific. Because I think I have information
I can provide you on this.
>> This is great!
>> So, you know, I have to say that you know
in talking to people about this event, and
people asking me about the event, one question
that I get, that I have gotten more frequently
than I guess I would have anticipated ‑‑
this may be a generational thing, because
it is mainly from colleagues and professional
friends who are significantly younger than
I am. Just so that everybody puts this in
context I am 65. So, you can be significantly
younger than I am and still have had a long,
successful career in the law. But one question ‑‑
one recurring question I have gotten, even
from people in my generation is, like is there
a reason to think about a group of justices
as Jewish justices? And ‑‑ and the answer
obviously in your mind is yes.
>> Yes.
>> So why don't you start by answering all
of those questions that I have gotten. Like,
why write about Jewish justices; is that a
big deal?
>> Well, it is. I will tell you why. Before
Justice Brandeis was appointed in January
of 1960, before that appointment it would
have been ‑‑ it was unimaginable that
you would have a Jewish justice on the court.
I want to come back to the question of anti‑Semitism,
the rise and then decline of anti‑Semitism
in the American legal profession. So many
things were different then. It would have
truly been unimaginable in Brandeis's day
that there would be not one, not two but three
Jews on the Supreme Court simultaneously.
And as much so there would be a Supreme Court
of six Catholic justices and three Jewish
justices, and no Protestants on the court.
Which from 2010, when Elena Kagan succeeded
John Paul Stevens who was the last Protestant
to the appointment of Neil Gorsuch who is
an Episcopalian, this would have been unimaginable.
In the same era you had, in the two decades
that Brandeis was on the court, you had the
emergence of what became a Catholic seat on
the court. And then eventually an African‑American
seat on the court. And now there ‑‑ you
know, there are three women on the court.
And I think it's taken as axiomatic that there
will be at least one or two women on the court.
Now this brings, if I can, the whole question
of how this came about and anti‑Semitism
within the legal profession. And is it okay
to address this or with Brandeis or ‑‑
>> Well, I am going to ask you, you decide
whether to address it now. It's certainly
something I want you to talk about. I was
thinking that for, you know, those two or
three people in the country who can't rattle
off automatically who these, you know, sometimes
mysterious eight Jewish justices are maybe
it help to set things off just by having you
identify who they were, who they were nominated
by, when they served. And just a couple of
sentences ‑‑ I am going to, time permitting,
ask you questions about each of them. And
‑‑
>> Sure.
>> And what their ‑‑ as your subtitle
says, what their legacy is. But I guess we
may have to continue this discussion until
tomorrow afternoon.
(LAUGHTER)
>> But why don't you start off by saying,
okay, we know Louis Brandeis was the first
one. Tell us ‑‑ let's go through the
eight. Particularly the ones who, you know,
who have now passed away. So that people in
the audience understand the sort of landscape
of what we are going to be talking about in
addressing, among other things, the rise and
fall, or ascendency and decline of anti Semitism
in the country. In the legal profession in
particular.
>> Okay. Brandeis was appointed by Woodrow
Wilson in January of 1916. It ‑‑ it became
a major issue of controversy in the Wilson
administration. He was facing a very tough
reelection battle on the following November
against Charles Evans Hughes, the former governor
of New York, who actually resigned his Supreme
Court seat to run against Wilson. And by the
way, if anyone wants to know the stories,
the some apocryphal and some not, Charles
Evans Hughes went to sleep on the November
1916 election thinking that he won it, and
Wilson assuming he had lost, they both woke
up to the change in realities. Now, the Brandeis
nomination and senate confirmation battle
went on four months. It was arguably the most
contentious senate confirmation battle until
over Robert Bork in 1987. And much of the
controversy had to do ‑‑ Brandeis was
considered one of the leading progressive
reformers.  He had been Woodrow Wilson's
main economic advisor since Wilson ran for
election in 1912. Wilson had hoped to appoint
him attorney general, but the avalanche of
anti‑Semitic opposition forestalled that.
But Wilson remained committed to appointing
him. When he nominated him he persevered and
stood by him. Later on maybe we can talk about
the actual ‑‑ most of the opposition
was anti‑Semitic in nature, not because
of his role of what was called the people's
attorney. But it ‑‑ it was ‑‑ Wilson
had one advantage, by the way, that President
Obama did not have when he nominated Merrick
Garland last year. By the way, most of you
probably know that Merrick Garland would have
been the 9th Jewish justice on the court.
But Wilson had a democratic senate and there
were several progressive republicans who crossed
party lines, so to speak, to support Brandeis.
So that all helped.
>> So let me just ‑‑ this is fascinating,
but I want to make sure that we get ‑‑
in this introductory section we get through
all eight of them.
(LAUGHTER)
>> Okay I will try to make ‑‑
>> Just give us the real bare bones, thumbnail
sketch. He finally gets confirmed in 1916,
and he serves until when?
>> Twenty‑three years until 1939. He is
succeeded ‑‑ first of all, Benjamin Cardozo
was appointed with him in 1932 by Herbert
Hoover. Now all ‑‑ seven of the eight
Jewish justices were appointed by democratic
presidents. But Hoover was, of course, a republican
president. What is interesting, Cardozo was
not only a lifelong democrat, but had supported
Al Smith against the republicans in the 1928
presidential election. So Hoover transcended
party allegiance. Just to conclude, Cardozo
was considered the preeminent American jurist
and judge not serving on the Supreme Court.
And most historians and biographers ‑‑
Hoover didn't have the greatest presidency
in American history, and his appointment of
Cardozo is considered one of truly ‑‑
one of his truly great achievements as president.
So, Cardozo dies, he had been ill when he
came to Washington, after six years in the
court in 1938. And Brandeis ‑‑ and ‑‑
>> We are going to come back to this. But
I am correct, am I not, that for a brief period
of time, Cardozo ‑‑ in an era of anti‑Semitism
Cardozo and Brandeis served on the Supreme
Court together.
>> Simultaneously six years. And by the way,
putting aside the other anti‑Semitism, there
was in that era a profoundly viciously anti‑Semitic
justice, James McReynolds. He had been outraged
when Brandeis was appointed. In fact, there
is a famous photo of the Supreme Court in
1924 that lacks one justice. McReynolds would
not permit himself to be photographed near
Brandeis. And he was ‑‑ when Hoover from
McReynolds vantage point had the audacity
to appoint another Jew, he personally wrote
a scathing letter to Hoover pleading with
him not to afflict the court with another
Hebrew. And when Brandeis retired in 1939,
there is a tradition that members of the court
all sign, it's like a retirement letter they
all sign, which is framed for the retiring
justice, and McReynolds refused to do so.
So for six years there were two Jews on the
court. In 1939, when Cardozo retired, or actually
he had passed away, right after his retirement
FDR, Franklin Delano Roosevelt, appointed
his old friend and advisor Felix Frankfurter.
For two weeks by the way, Frankfurter served
on the court together with Brandeis before
Brandeis officially retired. Frankfurter and ‑‑
just briefly, Frankfurter and FDR had met
at a lunch at New York's Harvard Club in
1906. They were both recent law school graduates.
Very ‑‑ very different backgrounds. Both
very ambitious politically. Their connection
and friendship continued on again, off again,
for 33 years, until FDR's appointment of Frankfurter.
>> Okay. So we have got three, so far by
my count, we come up with three Jewish and
we have had one anti Jewish justice. We have
McReynolds out of the way.
>> He was retires in the 1940s with ‑‑
>> All right. I promise you, we are coming
back to all of these people, except ‑‑
>> Of course, of course.
>> ‑‑ McReynolds. But who is next?
>> Okay. Next is ‑‑
>> So Frankfurter passes away.
>> Frankfurter passes away in 1960 ‑‑
actually, he retires in 1962, passes away
1965. He interesting to note, all of the Jewish
justices were liberal justices by any definition.
Frankfurter had been a flaming liberal Harvard
law professor and attorney, but he became
more and more conservative in his also 23
years on the court. And when he resigned in
1962, he was the most conservative member
of the Warren court. He became an advocate
for judicial restraint. Anyway, John F. Kennedy
then appoints Arthur Goldberg to succeed Frankfurter
on the court. Arthur Goldberg is the only
one of the eight Jewish justices to serve
in the cabinet before. He had been ‑‑
he was probably the best known labor leader,
lawyer in labor negotiator in the country.
He negotiated the merger of the AFL‑CIO.
And President Kennedy appointed him Secretary
of Labor. He served the shortest tenure, less
than three years on the court. Because ‑‑
>> We are going to come back to this, for
sure
>> Till LBJ persuaded him to leave a lifetime
position ‑‑ he lived until 1991 ‑‑
to accept a position given at the pleasure
of the president, Ambassador to the United Nations,
during which time he had a falling out with
LBJ and he was out of the U.N. in two and
a half years.
>> So He is out, who is in?
>> Abe Fortas, LBJ's closest political advisor
for many years. If I could just ‑‑ the
genesis of their friendship if I could do
it in a minute or two?
>> Are we going to talk about landslide Lyndon?
>> Yes. Landslide Lyndon. This is a great
story. 1948, Fortas and Lyndon Johnson had
met in The New Deal, Fortas was a New Deal
lawyer. First in his class at Yale Law School,
couldn't get a job in a major law firm because
he was Jewish. He worked the New Deal. He
met a young congressman from Texas, Lyndon
Johnson. 1948, in the election, the fight
of his lifetime, Lyndon gave up a seat in
Texas to run in the senate. Had he lost that
race, we never would have heard of Lyndon
Johnson. In an amazingly close race ‑‑
>> Are we sure he didn't lose that race?
>> We will come back to that. I document the
fact in my book that, well, there is a good
argument that he did lose that race. For that
you will have to read the book. Now, it was
such a close race, after a million, 560 votes
cast, or thereabouts, it was sent to a Blue
Ribbon Committee of Washington attorneys to
investigate and, you know, the ‑‑ check
on ‑‑ check about whether there was voter
fraud. And we know there was a great deal
of voter fraud. The person who had chaired
the committee argued the case at the Supreme
Court in favor of Lyndon Johnson was a young
up‑and‑coming attorney by the name of
Abe Fortas. And Johnson never forgot this.
Throughout his years as majority leader in
the senate in the 1950s and as vice‑president,
Abe Fortas was his closest advisor. They ‑‑
he and his wife Lady Bird socialized with
Abe Fortas and his wife. He always, always
wanted to promote Fortas to reciprocate and
do something for his friend Abe. And despite
the fact that Abe Fortas didn't want to, he
turned down an offer to be attorney general.
And then his wife helped him turn down, which
is a great story in the book, that and also
Johnson's nudging him and pressuring him to
go on the court. The only way to do that was
to take Arthur Goldberg off the court. So
he decided there was a tradition of the Jewish
seat on the court, which if you want we will
talk about. He basically, on the way, invites
Fortas to a meeting about something else,
actually Vietnam policy, and he goes invites
him to go out to the rose garden where he
just wants to make an announcements at a press
conference. On the way over, there much to
Fortas' anger and surprise, he tells him that
he is announcing his nomination to the Supreme
Court. And by the way, Arthur Goldberg had
not yet officially accepted his invitation
to the U.N. And basically, we can come back
to it, he took ‑‑ had to take a 90% salary
cut. In the 1950s he and his wife who were
partners in the major law firm that bore then
Fortas' name, drove twin Rolls Royces. They
had combined income in the 1950s of $400,000.
His wife who you will learn about more in
the book was a piece of work, had 150 pairs
of shoes in one closet. And they loved ‑‑
>> Can I just ‑‑ this is all really interesting.
(LAUGHTER)
>> Unless I am wrong, Abe Fortas actually
didn't serve very long on the Supreme Court.
>> No.
>> In any event, we seem to be stuck on the
fifth justice ‑‑
>> You want to go through ‑‑
>> Yes. I have a whole like book of questions
to ask you. So I want you to list off the
other ones.
>> Also, tomorrow afternoon I have a flight
to catch, but okay. So anyway, we will talk
about afterwards what became the biggest scandal
of the Jewish justice, Abe Fortas eventually
resigned from the court in 1969. By the way,
he served a few months longer than Arthur
Goldberg. In that case, Richard Nixon appointed
Harry Blackman to the court, so it was a Protestant
that ended a tradition of a so‑called Jewish
seat. Now, it would take 24 years before another
Jew would be appointed to the court. In ‑‑
well, in the interim ‑‑ I am trying to
think who Reagan nominated.
>> Many people.
>> Many people. Yes, many people. But after
Robert ‑‑ another Ginsburg, Douglas Ginsburg,
who had to withdraw his candidacy when it
was revealed that he smoked marijuana not
only while law student but only while a law
professor at Harvard. Anyway.
>> Shocking no one, but scandalizing the political
establishment.
>> And the Reagan family, and Reagan advisors.
So, you wait a few more years. In 1994, Bill
Clinton appoints Ruth Bader Ginsburg to the
court, and a year later Stephen Breyer to
the court. These were the only Supreme Court
appointments that Bill Clinton had. He appointed
two Jews. Ruth Bader Ginsburg ‑‑ now,
none of these ‑‑ they and Elena Kagan
thereafter did not confront any anti‑Semitism,
either on their ascent in their legal careers
to the court or ‑‑ their religion was
almost not mentioned in the hearings at all,
the confirmation hearings. Ruth Bader Ginsburg,
who we can talk about later, did face a lot
of obstacles on being a woman in a legal profession
that was still predominantly male. When she
entered Harvard Law School in 1956, she was
only one of nine students in a class of over
500. And there is a lot to talk about here,
but I wouldn't get carried away now. She became,
of course, the first ‑‑ the second woman,
after Sandra Day O'Connor ‑‑ the first
Jewish woman on the court. Now, a year later,
Stephen Breyer, who I am proud to say is a
fellow (inaudible) from San Francisco. The
only San Francisco Jew to be on the court.
I think the only San Franciscan because technically
all ‑‑ although he didn't live in San Francisco.
Anyway, he is appointed. And both of them
still serve on the court today. They are considered
pretty much part of the liberal block on the
court. And Ruth Bader Ginsburg, who just turned
84, has now surpassed Brandeis and Frankfurter
by a few months in terms of longevity of Jewish
justices on the court. Stephen Breyer had
a very interesting ‑‑ I talk about other
things, but just to say that he served in
the 1980s on leave from Harvard Law School
as the chief counsel of the senate judiciary
committee. Both he and ‑‑ Ruth Bader
Ginsburg were known as voices for, you know,
conviviality on the court. He got along with
everyone. Senate ‑‑ as counsel for judiciary
committee, he was able to get along famously
with the late Ted Kennedy, on the one hand,
the leading democrat and Orin Hatch on the
other hand. Kennedy and Orin Hatch agreed
on not many things, they also were close personal
friend, they agreed on their admiration and
respect of Steve Breyer when he was nominated
the last days of Jimmy Carter's administration
to the federal bench. They came together to
finance his nomination. And 14 years later,
as many people said, anyone who could get
along so wonderfully and so closely with both
Orin Hatch and Ted Kennedy must have been
doing something right.
>> Okay. So drum roll please to Elena Kagan,
so we get through the introduction portion.
(LAUGHTER)
>> Okay. And Elena Kagan, who was a graduate
of Princeton University and Harvard Law School,
was also a Marshall Scholar at Oxford University
as Stephen Breyer started out in the Clinton
administration on the domestic policy staff,
she then became the first woman dean and then
the first Jewish woman dean of Harvard Law
School. And then she followed in distinguished
step ‑‑
>> I guess if she was the first woman dean
she would also be ‑‑
>> Yeah, that's a little redundant on my part.
But I was just going to say she followed in
the great steps of my interlocutor here. She
became the next Jewish Solicitor General in
2009. And, in this case, the first woman Solicitor
General, and I guess the fourth Jewish Solicitor
General, you told me. And then a year later,
President Obama appointed her to the Supreme
Court. And, by the way, one of the efforts
of presidents, when they appoint justices,
is to appoint, hopefully, younger justices
who in good health may serve 30 years, she
was the exact same age, 49 going on a few
months 50, as Neil Gorsuch was now.
>> That's the golden era to get nominated.
>> That's right.
>> In the current era.
>> That's right, that's right. Now I think
I have exhausted the litany, except of course
if we have time about Merrick Garland who
did not make it.
>> Well, I mean, we are talking legacies and
history here. I think you will agree as an
historian it's perhaps a little premature
to talk about the legacies of the sitting
justices.
>> Right.
>> While I do have some questions for you
about the sitting justices, they are in the
process of writing their own legacies, and
I am going to focus a lot of the, in my remaining
20 minutes, before opening it up to the audience.
>> Oh, gosh.
>> I guess that gives me 17 minutes to get
to my concluding remarks.
>> I'm sorry, I ‑‑
>> Look, I want to ask you some things about
some of these justices in particular and have
you share with the audience ‑‑
>> Sure.
>> ‑‑ some of your learning about them.
But I need to have you ‑‑ when we talk
about these people as Jewish justices, we
are using the convention here that they were
born to Jewish mothers, correct?
>> That's all correct.
>> To what extent are we talking about people
for whom Jewish observance, Jewish spirituality
and Jewish belief was a significant ‑‑
appeared to you to be a significant aspect
of their lives?
>> Okay.
>> Up to the time that they served on the
court and while they were serving on the court.
Because, you know, they are Jewish because
they had a Jewish mother. I think a lot of
people want to know, the lead up to the question,
to what extent their Jewish faith, their Jewish
beliefs, their cultural Judaism may or may
not have affected or influenced who they were
as people and how they performed as judges.
So ‑‑
>> With the singular exceptions of Justice
Cardozo, who came from a religious Sephardic,
family and Justice Goldberg, who was very
active in the Jewish committee, by the way
had an annual Passover Seder here in Washington ‑‑
>> Was really, fair to say, was more like
a labor movement revival meeting than a Seder.
>> It was indeed. In fact a perennial guest
of the Seder was George Meany.
>> Rob George Meany.
>> Rob George Meany, who regaled the Seder
dinner and audience with Irish songs. By
the way, Goldberg's wife Dorothy regaled with
Yiddish songs. But I will come back with one
interesting anecdote, but your question is
well taken. There was not ‑‑ most of
the Jewish justices were not really practicing
religious Jews. And starting with Brandeis,
it's interesting, he came from a family ‑‑
grew up in Louisville, Kentucky. His parents
were German speaking Jews from Prague. He
was raised almost as a Christian. His mother
was said to admire the ethics of all religions,
and the rituals and observances of none. And
in their home they never celebrated the Jewish
Sabbath or Christmas, and ‑‑ Hanukkah
rather, but Christmas. Brandeis continued
in this tradition. If I can tell two very
short but quick anecdotes as an example. Hopefully
short.
>> We don't want to give away the whole book.
>> Maybe I will tell you one of them rather
than two. Okay. Brandeis was a prolific letter
writer. There are many volumes of his letters.
1900, his two young daughters were on vacation
in New York visiting a relative. Brandeis
wrote a letter to them saying, please don't
worry, the Christmas tree is set up, and Santa
Claus will be here to greet you. The other
thing, which I always find is fascinating,
he was very close to his brother Alfred who
remained in Louisville. Every month or six
weeks his cousin Alfred would send them a
ham from Louisville. Now, my question is:
There were no hams in Boston? There were these
wonderful notes from Brandeis saying thank
you overjoyed, the Brandeis household
is overjoyed here, we just received your ham
today, et cetera. Now, he also ‑‑
>> I want to come back, after we get done
with the Yiddish kite of all of the sitting
justices or at least the non‑sitting justices,
I want to get back to Zionism, there is an
interesting story here. But ‑‑
>> Zionism.
>> No, Cardozo.
>> Cardozo okay. Cardozo is descended from
one of the most ‑‑ probably the preeminent
Sephardic Jewish family in America. He is
a direct descendant (inaudible) who may not
ring a bell for some of us. But he was the
only Rabbi officiating at George Washington ‑‑
giving invocation. There were 14 clergy at
his inauguration in 1790. (inaudible) had
been the first Jew ever appointed to the board
of governors of Columbia University at the
recommendation of Alexander Hamilton, not
until Benjamin Cardozo would another Jew be
appointed to this. One of his cousins was
the ‑‑ the deputy mayor of New York,
Emma Lazarus was a first cousin, et cetera
>> You know, this is an inappropriate term
for a Sephardic Jew, but I don't know ‑‑
we know about his (inaudible).
>> (inaudible).
>> But what about his beliefs, his practices.
>> Well, he too, he never ‑‑ belonged
to the Spanish Portuguese synagogue in New York,
which is the oldest continuing synagogue in
the United States. He belonged, meant he
kept the ticket, and when he was in New York
he occasionally went on the high holidays.
He always kept ‑‑ there was a seat that
was in his honor. He very rarely attended
services there. He was barmitzvah'd there.
And but he, for the most part, unlike Brandeis
served I would say (inaudible) trays of food
always, Cardozo would never serve pork or
shellfish in his home.By the way, he was a
little taken aback on first invitation to
the Brandeis home when he came to Washington,
that's what Brandeis served. But he ‑‑
>> Fair to say it didn't auger well for a
close relationship for the two on the court.b
>> And I think that's an understatement. Yes.
On the court or off the court. But he remained
always affiliated. When he died, the memorial
service was at Beth Israel Spanish Portuguese.
He remained ‑‑ I guess one would call
it a nonpracticing orthodox Jew. If and when
he went to a synagogue it had to be orthodox
synagogue. His closest friend in the world
is Irving Lehman of Lehman Brothers. The older
brother of Herbert Lehman, the governor and
senator from New York. And when Cardozo died,
he died at the Lehman's mansion and they took
care of him, he and his wife Sally, in his
last weeks. They were so shocked when they
went ‑‑ they had the funeral at Shearith
Israel because one of Cardozo's other friend
was Stephen Wise, Stephen S. Wise, one of
the great Zionist leaders in America, and
preeminent Rabbis in America. But Stephen
Wise was a reformed Rabbi and the leaders
of Shearith Israel would not permit him to
officiate in any way or even to give a eulogy.
That shocked Irving Lehman, who was a very
committed reformed Jew at Temple Emmanuel.
And even his close friends didn't realize
how orthodox a Jew he really was, or was not,
because he never practiced his orthodoxed
Judaism.
>> Okay. So Felix Frankfurter.
>> Oh, this is interesting.
>> Born in the old country. Comes to the United States
at age 12 not knowing one word of English.
>> Correct.
>> Barmitzvah'd. Goes to Yeshiva.
>> For a while.
>> In Bed‑Stuy, because they thought it
was the best, safest school for him? Then
what happened.
>> Okay. At the age of 15 he decides Judaism
is not for him. He becomes a self‑proclaimed
agnostic. He goes to the City College and
then Harvard Law School, where he is top of
his class. I have a photograph of him in the
Harvard Law School dorm. But he wanted very
much to become part of the Protestant belief
in the country. He married the daughter of
a Protestant minister. His mother did not
attend the wedding. He never set foot in a
temple or synagogue in his adult life, except
to give an occasional lecture. But here is
the paradox, in his will, to the surprise
and shock even of his Protestant wife and
most of his friends, he asked that the Kaddish,
the traditional Jewish prayer of mourning
be recited at his funeral.
>> By?
>> By, he specified, Louis Hankin. Louis Hankin
was one of his favorite law clerks, was not
only a practicing orthodox Jew, but the son
of one of the preeminent orthodox Rabbis in America.
Frankfurter, the agnostic, admired ‑‑
>> And a preeminent legal scholar.
>> And a preeminent legal scholar who for
40 years was a law professor at Columbia University.
You may know better, I think one of the great
authorities on international law. He at one
point had been a consultant to the State Department.
And Frankfurter remained close to him, in
fact he said he was his one friend who was
a practicing orthodox Jew.
>> So Frankfurter, you know, very Jewish until
15?
>> Yes.
>> Casts it all off, becomes Jewish again
at his funeral.
>> And he says to another friend ‑‑
(LAUGHTER)
>> ‑‑ shortly before death, he said, well,
I was born Jewish, most of my life I did not
live as a Jew, but I want to die as a Jew.
>> Okay. So much for Jewish influence during
his 23 years on the court. Okay. So, we are
up to Justice Goldberg, who was you know had ‑‑
did belong to a synagogue his whole life.
What else?
>> Okay. He was an early Zionist. He and his
wife were close friends of Golda Meyerson,
later Golda Meir. She was ‑‑ in Milwaukee,
as teenagers in the Zionist movement. He grew
up in Chicago. Was at ‑‑ the first in
his class at Northwestern university. Couldn't
get a job in one of the big law firms, but
got a job in a small, what was then a small
Jewish law firm that founded by the two Pritzger
brothers. If this name sounds familiar it's
the Pritzger family started and still owns
the Hyatt hotel chain.
>> Could we get back to the spirituality?
>> Oh, the spirituality, yes, yes, yes. I
am going to take my watch out to remind me.
Okay. The spirituality was interesting. He
was a much more a Jewish Jew, than any of
the other justices.
>> Sounds like it wasn't saying very much.
>> It wasn't saying very much, truly.
(LAUGHTER)
>> I will give you one example and then one
great anecdote. When he used to have ‑‑
he didn't keep kosher dietary laws. But when
he would sponsor these great Seders, he would
insist, if any of the law clerks observed
(inaudible), he would make them strictly kosher.
One of the years, Alan Dershowitz, who many
of you know of, was strictly orthodox Jew,
so for this he had the best kosher caterer
in Washington, a very expensive kosher Seder.
By the way, on his Supreme Court letterhead,
he wrote old the Goldberg family recipe for
(inaudible), the traditional Passover dish,
which was sent to the kosher caterer, a copy
of which is one of the photos in my book.
Spirituality, he was a Jewish Jew, as was
his wife. One quick anecdote, cute anecdote.
It will be very quick, I hope.
>> It's 5 minutes to 8, and we are not even
up to Fortas yet. I am on Yiddish kite.
>> Yiddish kite. He always told the story
of visiting his ‑‑ while he was Secretary
of Labor ‑‑ his elderly Jewish mother
in Chicago. And while he was oversleeping
one day, kind of half awake, the phone rings
and his mother asks, who is this? It's President
Kennedy. So he answered the President. So,
she says: The President knew of what shul
(inaudible).
(LAUGHTER)
>> Okay. Just a word or two about the Yiddish
kite of Justice Fortas, and then I am going
to ask you to reflect, again, on my question,
why are we talking about Jewish justices.
The extent, if any, to which ‑‑ I know
you are not a law or a legal scholar in your ‑‑
in your research, you were able to discern
any impact on the jurisprudence of these people,
of the fact that they were at least born Jewish.
>> Okay.
>> So first Fortas.
>> Okay. Fortas, like Frankfurter, was born
into an orthodox family and grew up in Memphis,
Tennessee. He also pretty much cut his ties
with orthodoxy in high school. And continued
to be really indifferent to anything in Jewish
religious practices tradition. He is also ‑‑
his wife was not Jewish, and she was not particularly
interested in Judaism at all. And she continued
in this ‑‑ you know, pushed him in that
direction. He was the first in his class at
Yale law school. By the way, the same legend
has it that while Brandeis was first in his
class scholastically at Harvard, scholastic
average never been met since, they said the
same thing about Fortas. Fortas  mentor was ‑‑
William Douglas was later on the court. He
also couldn't get a job in a law firm in a
big city blue chip law firm ‑‑ blue suit
law firm, so he went to work in the New Deal.
Of course, as I said before, that's when he
meets LBJ. He eventually gets ‑‑ forms
a new law firm in Washington ‑‑ a new
law firm in Washington.
>> Arnold.
>> Arnold, Fortas and Porter, which is today
Arnold and Porter, which I will make mention
about at the end. His wife was a tax specialist,
becomes a partner of the same firm. They have
a combined salary in the mid 1950s of over
$400,000 he would have to take a 90% salary
cut to join the court. They drove ‑‑
>> So was he going to shul?
>> Never going to shul. And his wife discouraged
him tremendously in that area. Although, when
he visited ‑‑ they never had children.
His Jewish nephews and nieces he talks to ‑‑
they told him about what it was like to live
a Jewish life, which he knew very little about,
except for one thing. He was very pro Israel,
his closest friend in Washington for many
years was Avron Harmon, the former Israeli
Ambassador to the United States, later the
President of Hebrew University.
>> Some of his best friends were Jewish.
>> Some of his best friends were Jewish. You
know, I should have put that in the book.
(LAUGHTER)
>> So, you know maybe the answer to this question
is obvious, since the justices that we have
talked about so far, that none of them, either
they had no Jewish upbringing, as in the case
of Louie Brandeis, or they had a Jewish upbringing
which they forsook, largely in the case of
the others.
>> Yeah.
>> I wouldn't say that it ‑‑ it's probably
not fair to say about Cardozo, he just became
indifferent and  inobservant. But unlike,
you know, Frankfurter, or Fortas, you know,
which was just a categorical rejection, this
is a disability of my birth that I am going
to try to overcome.
>> Yes.
>> Is it fair to say ‑‑
>> (inaudible)
>> Is it fair to say that it's hard to discern
an effect of their Judaism on their jurisprudence? >> I think it's fair to say. By the way, with
one very quick caveat, because I know if (inaudible) the grandson of Justice Brandeis is here, his parents I guess,
when they had children, and when Justice Brandeis
in the late '20s and '30s had Jewish grandchildren,
then he began to write cards to them for Rosh
Hashanah and for Hanukkah and that was a Jewish
influence late in life. But, no, I think you're
fair ‑‑ it's fair to say that their Judaism
had very little, if anything, impact on their
jurisprudence, on their judicial opinions.
Even in the case of Cardozo. And this ‑‑ the
one thing it did do, which is a legacy of
both Brandeis and Frankfurter, for the first
time they appointed Jewish law clerks. And
that became something ‑‑ it wasn't out
of religiosity, and some of the law clerks
were a lot more religious. I think it's fair
to say, with possibly with one exception that
with Frankfurter it was negative, actually,
that their Jewishness or Jewish background
had no affect on their jurisprudence. So one
other exception, Goldberg. On state issues
Goldberg's Jewish background did have some
influence on his ‑‑ on his opinions.
>> So, I think ‑‑ you know, a couple
of things ‑‑ a couple things more about
Justice Brandeis.
>> Yes.
>> You know, you talk about this in your
book but Justice Brandeis had a ‑‑ an
uncle ‑‑
>> Yes.
>> ‑‑ with whom he was very close.
>> Yes.
>> Close enough to take his ‑‑
>> Middle name.
>> ‑‑ middle name, who was very, very
observant. And do you want to talk about that
just a little bit?
>> Sure. His uncle's name was Louis Dembitz
and Brandeis eventually changed his middle
name from David to Dembitz in honor of his
uncle. His uncle in Louisville was one of
the leaders in the orthodox Jewish community.
He was a Jewish scholar, published a couple
of books on the Bible with the Jewish Publication
Society. He was an orthodox Jew. Brandeis
recalled in his letters, very memorably, the
only exposure to traditional Shabbat dinners on a
Friday night or Saturday night would be at
his uncle's home. But he didn't emulate his
uncle in this way. It was his uncle who inspired
him in the law. His uncle was an abolitionist.
His uncle named two of his sons Abraham Lincoln
Dembitz and Henry Clay Dembitz.
(LAUGHTER)
>> Now, also his uncle was one of the founders
of the republican party, that's the party
of Lincoln and the abolitionist in Kentucky.
One of the three people who put Lincoln's
name and nomination at the 1860 republican
convention. But ‑‑ but there was a very
great closeness between the two. And it was
his uncle's legal scholarship also that inspired
Brandeis. His religiosity and his religious
practice did not. He somehow separated the
two.
>> On the ‑‑ you know, let's turn you
know now for a few minutes to Zionism, because
any biography of ‑‑ Zionism is an important
theme, I think, with the justices that we
have been talking about.
>> Sure, sure.
>> And you know, none more than Louie Brandeis,
who, of course, was the President of the American
Jewish Zionists movement.
>> What today is The Zionist Organization
of America yeah.
>> Your book recounts, actually contemplated
resigning his Supreme Court seat in order
to assume leadership of the world Zionist
organization ‑‑
>> This is the hundredth anniversary of the
Balfour Declaration this November, he worked
so assiduously on the court, by the way, which
wasn't really ‑‑ it was an extra judicial ‑‑
which I don't know if we will have time to
talk about ‑‑ activity pushing and persuading
Woodrow Wilson and the Wilson administration
to support this Balfour Declaration.
>> So how do you explain the fact that we
have somebody who was raised in a terribly
‑‑ not terribly ‑‑ in a resolutely
secular family in Kentucky. The son of a ‑‑
a descendant of the German Jewish emigration.
Living in a community very unlike the sort
of shtetl existence that Frankfurter came
out of, and moved into in Bedford‑Stuyvesant
and the lower east side. When does he, quote,
discover Zionism? And what did Zionism have
to do with Louis Brandeis' persona and beliefs?
>> The first 50 years of his life he had
no Jewish connection at all. He lived in areas
where there were no Jewish neighbors, he had
one or two Jewish friends. The genesis of
this, which I talk a lot about in my book,
he was invited to be one of the negotiators
of the garment workers strike in New York
in 1910. For the first time in his life, he
met East European Jews, and he felt an affinity
with them. Which he talks about ‑‑ these
were Jews ‑‑ his other Jewish friends
had been very assimilated German Jews. And
all of a sudden he somehow ‑‑ there was ‑‑
it struck a chord with him. And these were
Yiddish speaking Jews, and of course he knew
no Yiddish. And he became interested from
that experience in Zionism. Some of the people
he mentioned Henry Moskowitz, who played a
role in the senate confirmation battles, who
was a leading political figure in New York
at the time. And others who came from more
traditional backgrounds. And Jacob de Haas,
who had been Theodor Herzl, the founder of
political Zionism, first basically representative
of the United States, they told him more
and more about Zionism. They also told him
more that he didn't know about his Uncle Dembitz,
who was a profound Zionist leader and an early
Zionist leader. As time went on, he began ‑‑
he was Jewishly almost illiterate. He began
to read more and more about Judaism. And he
began to find a tremendous link between Zionism
and Americanism. That was the key for him.
And I forget ‑‑ I just wish I knew the
exact phrase, there is a famous phrase at
one point that: To be a ‑‑ what is it?
To be a better American ‑‑
>> I can remember the ‑‑
>> Please clue me in.
>> To be a great American you first have to
be a great Jew, and to be a great Jew you
first have to be a great Zionist.
>> Exactly. And that was ‑‑
>> Which is a perplexing set of propositions.
>> To say the least.
>> And probably amazing to the vast majority
of the Americans who not only don't feel they
need to be a great Jew to be a great American,
but don't have the tools to become a great
Jew in any event.
>> In any event. Like he didn't before. And
he ‑‑ it created a lot of tension because
so many Jewish leaders didn't feel the same
way. But once he became involved it became
his passion. He ‑‑ also, he brought some
wealthy Jewish friends, German Jews like Eugene
Meyer, the financier and founder of the Washington
Post family, and Abraham Filene, Filene's
Basement and others, he brought them into
the Zionist movement, also Felix Frankfurter
and to an extent Benjamin Cardozo. It should
be noted, a footnote, Benjamin Cardozo officiated
at Felix Frankfurter's wedding, which is just
a nice thing to know about. But Brandeis was
a charismatic speaker, and he ‑‑ and
close to Woodrow Wilson. He barnstormed the
country in support of Zionism. And he made
Zionism respectable amongst Christians as
well as Jews. In fact, I must tell one ‑‑
>> Okay. I am going to give you the hook because
I need to ask you to tell us one thing about
Frankfurter. And I am giving myself the hook
in two minutes, so people in the audience
get ready with your questions I could pass
around all of the unasked questions that I
have.
(LAUGHTER)
>> If anybody flags. But Frankfurter, let
me ‑‑ just to summarize my understanding
of it. So while Frankfurter in many ways was
a protégé of Brandeis, very, very different
as a personality. Very, very different in
background. But was actually for many, many
years actually paid by Brandeis to ‑‑
to write and publish as a very progressive
‑‑
>> Yes.
>> ‑‑ public intellectual.
>> Yes.
>> And deputized by Brandeis to get involved
and promote the Zionist movement. And the
book recounts a fascinating story where Frankfurter
negotiates a letter from the then king of
Saudi Arabia, saying that, you know, Arabs
favor the Balfour Declaration and favors the
creation of a Jewish homeland for which Frankfurter
took an outsized amount of credit. For whatever
value it has. But is it fair to say that Frankfurter's
devotion to Zionism was more in the nature
of an assignment?
>> Yes. Very much so.
>> Frankfurter was ‑‑ both Brandeis and
Frankfurter, and Fortas for that matter, and
Goldberg were, your book recounts beautifully,
how unbelievably tied in they were, tied into
the administration of the presidents that
appointed them, no one more profoundly and
integrally as Felix Frankfurter. I mean, given
the long scope of FDR's tenure.
>> Sure, sure.
>> I mean, you can say that probably no more
profoundly as Abe Fortas, who seemed to spend
more time in the White House and the National
Security Council than actually in the Supreme
Court but to the point that his law clerks
felt free to take naps in the Supreme Court
because they felt sure he wasn't going to
show up.
(LAUGHTER)
>> By the way, something I didn't know before
this, it was Abe Fortas who drafted LBJ's
1966 State of the Union address.
>> Okay. But I want ‑‑ I mean, there
is no reason to think, is there, that Felix
Frankfurter had ‑‑ had an overwhelming
degree of influence both over FDR and over
his, Frankfurter's, own many protégés in
the administration. I would just like before
we open it up to questions, I would like you
to recount for us the episode that you describe
in connection with the Holocaust of Jan Karski,
who he was, what he discovered, and what he
did with in Washington, particularly with
respect to Frankfurter. This is something
I did not know, and I find amazing.
>> Well, certainly. You know, Jan Karski
some of you may know of because I think many
years taught at Georgetown in his later years
Jan Karski was the first ‑‑ he was the
representative of the Polish government in
exile. He had been ‑‑ he had gotten into
the Auschwitz death camp and realized in secret
what was being done there. He then became
the emissary to tell the western world what
was happening ‑‑ what has happening in
the Holocaust. And he comes to the United States
at the end of 1942, and with a report he
wrote, but also his firsthand account of what
was happening, and the final solution.
Now, first he is told ‑‑ Frankfurter
is a very close friend of the Polish Ambassador
to the United States. So he tells Jan Karski,
you have to meet with justice Frankfurter,
who was of course Jewish. Jan Karski tells
him in documented detail about the horrors
that he has witnessed firsthand. And about
the Nazi's war against the Jews. And all ‑‑
and after speaking close to half an hour,
Frankfurter gets up ‑‑ he was always
very formal ‑‑ and says: Sir, I cannot
believe what you are saying. And Jan Karski
says, well, Mr. Justice I wouldn't lie to
you. I wouldn't ‑‑ he said no, no, you
misunderstand me. He said, I cannot believe
in my ‑‑ in this 20th Century that something
as horrible as you are saying is actually
taking its place ‑‑ taking place. He
then turns his back on Karski and walks out.
Karski then ‑‑ and the Polish Ambassador
asked him to set up a meeting with FDR to
convey this. Frankfurter meets with FDR before
and tells him, well, he himself cannot believe
something like this is taking place. Now,
what is incredible about this, Frankfurter
never lobbies FDR. One might have been expected
that Frankfurter who used to lobby the President
on a whole host of issues, including appointing
his ‑‑ some of his students to Federal
judgeships. In face, he had a year‑long ‑‑
several year‑long campaigns to appoint Lerned
Hans to the Supreme Court. He used to call
FDR at night even. When it came to the Holocaust
he did nothing. In fact, he had an elderly
uncle, who was his favorite uncle, Solomon
Frankfurter, was arrested by the Nazi police
in Austria, in Vienna, and was held, in his
80s, was held prisoner for several days. One
would have expected Frankfurter to go to the
president and say, please, do something to
help my uncle, my favorite uncle. He didn't.
Instead he went through an interesting connection
something more shocking Lady Aster in England
who he knew as a friend ‑‑ so he ‑‑
one last thing he was a protégé of Henry
Stimson, who was then the secretary of ‑‑
was it war or state.
>> War.
>> It was war. His neighbor and close friend
was John McQuarry the deputy secretary of
war. He walked to work with John McQuarry
almost every day. John McQuarry was the war
department official responsible for vetoing
war department proposal to bomb Auschwitz,
the death camp, and the railroads to it. He
would see him every day and talk to him. He
never tried to persuade McQuarry.
>> This was, if I am correct, this was at
a point in time in which allied bombers were
bombing the industrial sections of Auschwitz.
>> Exactly. Within five minutes of Auschwitz.
But actually the industrial section of Auschwitz
itself it would have ‑‑ this was in late
1944, when there was still 750 Hungarian Jews
who were to be deported to Auschwitz in the
months before the end of the war. Had they
bombed even the railroads to Auschwitz, not
the death camp, it would have slowed up the
Nazi process of murder by many, many months.
But McQuarry successfully vetoed this, and
Felix Frankfurter, as far as we know, never
did a thing to try to dissuade him or his
good friend Henry Stimson.
>> Okay. We are throwing it open to the audience.
We have a member of the audience sitting patiently
by the assigned microphone. Sir, if you could
identify yourself and let us know what your
question is.
>> Rashad Thomas. I have like two questions.
So my first question is: Did any of the justices
encounter anti‑Semitism after they became
Supreme Court justices? Number one. And number
two, is there something distinctive about
their Jewishness that contributed to by and
large their liberalism? I think most of the
justices who have been Jews on the court are
left of center and in their philosophy. So
did their Jewishness play a role in that?
Thank you.
>> So, the first question first, which is
easy. Only Brandeis and Cardozo, and the anti‑Semitism
they faced while on the court, was from Justice
McReynolds, who was a vocal anti‑Semite.
Once they were secure on the court they didn't
face it. Many of the ‑‑ they were all
liberal. Even Frankfurter, when he started
out. And they ‑‑ Ruth Bader Ginsburg
has written about this, attributing her support
for social justice, and so many liberals social
and economic issues to her Jewish background,
and to the Judaism that she inculcated. In
this article she said that so many ‑‑
me and so many of my colleagues are descended
from Rabbis and we have inculcated this. The
problem with ‑‑ and Ruth Bader Ginsburg,
she has been more Jewishly involved, many
of the Jewish justices, for example, like
Brandeis and like ‑‑ well, let's say
Brandeis and Frankfurter, even in his early
days, didn't know enough about Judaism to
realize that their previous position for social
justice and for helping the poor, et cetera,
was coming from a tradition that they really
didn't understand. So, that's kind of ‑‑
but they were all nominated by liberal, democratic
presidents, with the exception of Cardozo.
But most have attributed ‑‑ most people
have attributed, including Ruth Bader Ginsburg
has written about this, that their liberalism
came from almost their DNA. This is ‑‑
they were all ‑‑ you know, descended,
not all, but most of them were descended from
really strongly religious families. And by
the way, a footnote on Ruth Bader Ginsburg,
at the age of 15 I have a photo in the book,
she was the camp Rabbi at her ‑‑ she
was known as that as her summer camp in the
Adirondacks.
>> Thank you very much for your words today.
I am a college student here in the Washington,
DC area.
>> What is your name?
>> My name is Nathan Misler. I have been deeply
interested in Jewish history for several years.
Actually, since I was in elementary school.
And your book is one of the most meaningful
books that I have read in a long time. I have
read it cover to cover.
>> Oh, thank you so much.
>> You are very welcome. My question is:
Throughout your research, what did you find
most interesting about ‑‑ about learning
about Justice Goldberg's efforts to an advocacy
for ending the death penalty. And what do
you think ‑‑
>> Oh, that's interesting. And that may be
derivative of his Jewish background. Arthur
Goldberg with the assistance of his law clerk
Alan Dershowitz at the time, went on a campaign,
he tried to get a campaign going to render
the death penalty unconstitutional. The problem
was he had ‑‑ had he not resigned from
the court when he did, he might have achieved
this himself. By the time the first death
penalty cases came out, and some of them were
you know ‑‑ there was, really attacking
the constitutionality of the death penalty,
it was in the 1970s, when he had been off
the court. But he and Alan Dershowitz, and
I cite in my both, wrote a famous Harvard
law review article in 1969 about rendering
the death penalty unconstitutional. And that,
I would say, was one area where he ‑‑
he was probably still the most knowledgeable
in terms of Jewish religious tradition. And
that came, I think, from his Jewish ‑‑
his understanding of what ‑‑ what then
was not called (inaudible) and of Jewish values.
>> Thank you. Sir?
>> My name is Shelly Gelman. I live in Louisville,
Kentucky. I beg to disagree with you slightly.
Louis Brandeis' entire family lived within
walking distance of congregation of (inaudible).
And the entire Jewish community lived in a
central area of Louisville, which was very
open at that time to German Jews and especially
Polish Jews. Now, turning to your ‑‑
I'd like to present a slightly different perspective
on this, Rabbi. When I studied the Talmud,
and I perceive the obligations of a Jew to
the treatment of employees, to the treatment
of the relationships of other people, and
I read the decisions of Justice Brandeis,
as to how you treat your employees. And then
when I look at Justice Cardozo, not necessarily
when he was on the Supreme Court, but when
I looked at his decisions on the Court of
Appeals of New York, and I see the Salman
versus Miman case, the ‑‑ what is it,
the punctilious requirement of honor among
partners, and the relationship of partners.
And then I see the Palsgraf case of approximate
cause, you know, what does ‑‑ what do
these things result from. These all stem from
Talmudic lessons about how you have contractual
relationships, commercial relationships. So
I can draw a relationship to the understanding
of Jewish law to our civil law.
>> Yeah.
>> Your comment, Rabbi?
>> Okay. I think there definitely is a relationship
in the case of Cardozo. Who did, although
he wasn't a practicing orthodox Jew, did inculcate
a great ‑‑ significant understanding
of Jewish tradition, Talmudic tradition. Brandeis
really didn't have that kind of Jewish knowledge
and Jewish education. Now, he later became
very interested in Judaism. But I am not sure
if one can draw a connection between his decisions
in those areas and his ‑‑ maybe they
had been inculcated subconsciously, but he
did not have the knowledge or understanding
of Jewish teachings, Rabbinic teachings that,
for example, Cardozo did. Although Cardozo
didn't set foot in a synagogue on a regular
basis, he had the Jewish knowledge. So that
would be the only thing. And ‑‑ that
I would say. Although, Brandeis did, you are
right, on those decisions, because he was
a progressive reformer also. He was one of
the leading, you know progressive voices in
America at that point.
>> And Brandeis' name stays alive with the
University of Louisville's law school, the
Louis Brandeis law school.
>> Which this is wonderful ‑‑ it really
is. Yes. That would changed, I guess in the
past 20 or 30 years.
>> Okay. Thank you. We have one from the
left, now we get one from the right.
>> Rabbi Dalin, yes, my name is Jonathan
Galob, I am the class of 1985, Brandeis University
as well. So I guess we are (inaudible) in
a different way. Actually, I am on my way
after this venue to another to venue less
than a mile away to (inaudible) Brandeis cohorts
dressed in green and white instead of red,
white and blue, like our home team here, but
that's a different discussion maybe you can
write a book on Red Auerbach one day and discuss
his influence on the American culture of basketball.
But anyway, my question is as follows: President
Wilson, there was actually a program just
put together, shown I should say, put together
some time ago, by the famous author, whose
name escapes me right now it will come to
me in one second. It was a three‑part series
about World War I. It focused a lot on Wilson.
It had emphasis on, unfortunately, some aspects
of his racism, his anti‑Semitism and his
small mindedness the way he approached certain
things. I think he was from Staunton, Virginia,
if I am not mistaken. Woodrow Wilson, not
Louis Brandeis. A lot of his upbringings at
that point. First part is, what really drove
him, I mean, from everything that we learned
about him to sort of move beyond that, the
way that he thought, small minded, which is
actually exemplified in the show, why he was
so emphatic, meaning Wilson, with points he
wants them to go, if congress wouldn't pass
them the way he wanted, then he didn't want
to do them at all. Brandeis (inaudible) Supreme
Court justice. And the second part is: Excuse
me, has to do with Palsgraf, a gentleman mentioned
over there, what jurisprudence did particularly
Cardozo and Brandeis add in the torts that
are famous today.
>> I may defer to my legal colleague and
scholar about the Palsgraf decision, or my
friend in the audience, who is a law student.
(LAUGHTER)
>> And a brilliant one, I think.
(LAUGHTER)
>> (inaudible)
>> I think it is fair to say that it would
be more challenging to pick somebody here
without legal training than with legal training.
>> That's right. Like myself. But let's ‑‑
the other question, one of the ironies is
that we know now that Woodrow Wilson was a
racist. We know now that he re‑introduced
segregation into the capitol, to the nation.
On the other hand, he was in his own way Philo‑Semitic.
When he was president of Princeton, he appointed
the first Jewish faculty members at Princeton.
When he was governor of New Jersey, before
he ran for president, he appointed the first
Jewish New Jersey State Supreme Court justice.
And in addition, besides Brandeis, who he
stuck with, he didn't abandon him after, he
appointed several Jews from Bernard Barook,
who was one of his close advisors to ‑‑
I am trying to ‑‑ the whole Federal Reserve
system was the brainchild of one of the Woolbergs,
I think, who was a close advisor. And he had
many Jewish advisors. There is no record of
his being anti‑Semitic. But there is certainly
a growing record, some of you may have followed
at Princeton University, there was an effort
to take off the Wilson name from the Woodrow
Wilson School of International Affairs, et cetera.
But that would be my answer. And it seems
to be a paradox, that he was really not anti‑Semitic
from any record that we have, but he was,
you know, certainly a southern racist.
>> Okay. Last question from the left, and
we have run out of time.
>> Rabbi, you talked a lot about Harvard
‑‑
>> You have to identify yourself.
>> I am Teve Troy.
>> So you talked a lot about Harvard law school
and Yale law school. We know that all of the
Supreme Court justices graduated from Harvard
or Yale. Can you, A, say, did any of these
Jewish justices not go to one of the elite 
law schools? And also, can you talk about
the role of elite law schools in normalizing
or kosherizing, if you will, the justices,
so this would be okay that they would be on
the Supreme Court?
>> Okay. What is interesting, of course, you
know, with ‑‑ the only thing ‑‑
I just mentioned Merrick Garland for a minute
there. When he was nominated, his religion,
last year, was not mentioned at all. The only
thing the media called upon was that he would
be the 9th justice to go to Yale or Harvard
law school. Now, I tried to pick, Brandeis
of course Harvard law school, okay. Cardozo
went to Columbia, a fairly good law school.
(LAUGHTER)
>> Might I say?
Frankfurter, top of his class at Harvard Law
School. Now, Goldberg went to Northwestern,
a very good law school. Not officially Ivy
League, but a tremendously good law school.
Fortas went to Yale, of course. Ruth Bader
Ginsburg, by the way, went to Harvard and
Columbia. It's interesting, she followed her
husband, he was year ahead of her, when he
moved to New York to get a job, she went
to Columbia. And she is not only the woman,
but I think one of the few people in history
who was on two law reviews, the Harvard and
Columbia law review. Stephen Breyer went,
of course, to Stanford as an undergraduate
and Harvard Law School. And you know, Elena
Kagan went to Princeton and Harvard Law School.
So, it does say, a part of the acculturation
was, that once again, the decline of anti‑Semitism in
the legal profession. It was A. Lawrence Lowell,
who you will read about in my book hopefully,
who led the anti‑Semitic opposition, the
President at Harvard to Brandeis' appointment.
He later achieved much more notoriety trying
to introduce a quota on Jewish admissions
to Harvard in the 1920s. But it was through
these Jewish students who grew up most ‑‑
Frankfurter, Fortas and Goldberg were all
of the first members of their family to go
to college. And then they went ‑‑ they
all went to these very prestigious law schools.
And so it was part of the greater acceptance
in the ‑‑ in the law schools that help ‑‑
change ‑‑ helped bring about a decrease
of anti‑Semitism in the legal profession.
Just to end this on one story that's very
interesting, I think. When Brandeis's daughter,
and I believe it's Mr. Goldberg's mother,
graduated at the top of her class at Bryn
Mawr, Brandeis was very interested ‑‑
and she had hoped ‑‑ at least that's
the story I am told ‑‑ she was interested
to go to Harvard, Yale or Columbia. The problem
was in 1917 there were no women yet admitted.
The deans said they would love to admit her,
but it would be another ten years before they
would admit women. So she went to University
of Chicago where she met her husband, another
law student. But I think it's what you said.
As the decline ‑‑ there was a gradual
decline of anti‑Semitism in the American
legal profession, and it was fostered in part
by so many of these lawyers who were either
immigrants themselves, or the children of
immigrants, whose parents had never gone to
college going to the top elite law schools
in the country, and doing well there. And
having distinguished legal careers derived
from that.
>> Thank you all very much. You have been
a great audience.
(APPLAUSE)
>> Great.
(APPLAUSE)
