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High courting Jews

Rabbi, author to speak on Jewish justices

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During his years in Washington, as secretary of labor under President John F. Kennedy, and later as his appointee to the Supreme Court, Arthur Goldberg held one of the capital’s most prestigious seders, hosting prominent Jews and non-Jews. Although as a Reform Jew he did not keep kosher, he employed a kosher caterer for his holiday meal.

When Justice Elena Kagan was 12, an Orthodox Jew on Manhattan’s Upper West Side, she argued that for her bat mitzvah at Lincoln Square Synagogue, girls were just as entitled to a ceremony as boys. It took some convincing, but in 1973, Rabbi Shlomo Riskin finally agreed to the rite of passage for Kagan, the first girl he ever so honored.

Louis D. Brandeis, the first Jew appointed to the United States Supreme Court, celebrated Christmas. His favorite dish was ham.

These are three of many interesting stories about the eight men and women who are the subject of Rabbi David G. Dalin’s 11th book, “Jewish Justices of the Supreme Court, from Brandeis to Kagan” (Brandeis University Press, April 2017). He will speak on Jan. 7 at Anshe Emeth Memorial Temple in New Brunswick and a day later at Temple B’nai Or in Morristown about “The Lives, Legacies and Jewish Identities of the Jewish Supreme Court Justices.”

A San Francisco native, Dalin received a bachelor’s degree from the University of California at Berkeley, a doctorate in history from Brandeis University, and rabbinic ordination from the Jewish Theological Seminary. He talked to NJJN about his research by phone from his home in Boca Raton, Fla.:

NJJN: How important is having a “Jewish seat” on the Supreme Court?

Dalin: It was really important at one point, but less so now. Until the 1920s, the Supreme Court was virtually an all-Protestant bastion. But when the first Jew, Louis Brandeis, was nominated by Pres. Woodrow Wilson in 1916, he faced a great deal of anti-Semitic opposition. [Brandeis was confirmed by the Senate by a vote of 47 to 22.] Until then it would have been unimaginable that there would have been a Jewish justice on the court. [At the time] when Brandeis was appointed, it also would have been unimaginable that today there would be three Jewish justices and no Protestants on the court.

NJJN: Was Brandeis appointed because he was Jewish?

Dalin: No. He wasn’t appointed because he was Jewish, but part of the opposition was because of it. He was one of Wilson’s preeminent Jewish advisors. He wanted to appoint Brandeis to the court and he stayed with him despite the anti-Semitism.

NJJN: Were all of the Jewish justices liberals?

Dalin: No. Felix Frankfurter was very liberal when he was appointed in 1939 by Pres. Franklin D. Roosevelt, but when he retired in 1962, he was considered the most conservative member of the court. 

NJJN: Why did Goldberg leave the court after serving only three years? 

Dalin: Because Pres. Johnson wanted to appoint his close advisor, Abe Fortas, to the “Jewish seat” on the court. [Fortas was forced to resign from the court in 1969 after being accused of accepting illegal funds from a Wall Street financier.]

There was not another Jew appointed for 24 years, until Pres. Bill Clinton named law professor and American Civil Liberties Union attorney Ruth Bader Ginsburg in 1993 [the second woman ever, following Pres. Ronald Reagan’s naming of Sandra Day O’Connor]. He named another Jew, Stephen Breyer, in 1994. So, it’s not so unique to have a Jew anymore on the court.  

NJJN: Wasn’t there pressure on Presidents Richard Nixon and Gerald Ford to appoint a Jew?

Dalin: No. Pres. Nixon never intended to name a Jew and Pres. Ford might have had he been elected [he was defeated by Pres. Jimmy Carter]. Pres. Reagan did nominate a Jew, Douglas Ginsburg [who withdrew after disclosures that he had smoked marijuana].

NJJN: What kind of anti-Semitism did the justices face?

Dalin: Brandeis, Cardozo, and Frankfurter confronted a lot of anti-Semitism at the time of their appointments. Goldberg and Fortas were both at the top of their respective law school classes, but neither one, when they stated their legal careers in the early 1930s, could get jobs in any mainstream law firms. By contrast, Justices Ginsburg, Breyer, and Kagan faced a decline in anti-Semitism in the legal profession, and I think that is significant. 

NJJN: What is significant about Ruth Bader Ginsburg’s tenure?

Dalin: What Ginsburg has done to fight gender discrimination, Thurgood Marshall [the first African-American justice] did for [the advancement of] civil rights law. Her close relationship with the late Justice Antonin Scalia, which transcended their political differences, is especially admirable. She is now 84 years old and in pretty poor health.

NJJN: Will Pres. Donald Trump be pressured to name a Jew if he has to replace her?

Dalin: No. I don’t think so. When he was running for president he had a list of 22 people he would appoint to the court. Not one of them was Jewish.

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