Ken Kersch: Instructive parallels between the Alito and Louis Brandeis nominations





[Mr. Kersch teaches constitutional law and American politics at Princeton.]

The press informed readers that they were about to witness "one of the bitterest contests ever waged against a presidential nominee," and the most controversial Supreme Court nomination ever. The president, it was said, might have selected a nominee who would unite the country, not divide it. Instead, the Washington Post reported, he had "sent a bomb to the United States Senate."

Support and opposition split immediately along party lines. Opponents insisted that the most exacting scrutiny was essential, calling for delays. Supporters, citing the nominee's demonstrable capabilities, demanded expedition. A filibuster was threatened. All acknowledged the nominee was brilliant, almost all agreed he was honest. Neither trait, his antagonists reminded the country, entitled him to a seat on the Supreme Court.

Much was at stake. Justices called upon to decide cases involving some of the most controversial legal questions of the day were expected to be impartial. But the New York Times complained that, if confirmed, the nominee "would take his seat upon the bench equipped with a variety of preconceived and firmly-held notions." That wasn't the only red flag: The prospective justice, it was said, held views far outside the mainstream, and harbored a transparent commitment to an agenda that would revolutionize American law.

The nominee was Louis Dembitz Brandeis, a confidant of Democratic President Woodrow Wilson and a prominent "movement" progressive. Brandeis had manned the barricades in the most hard-fought political battles of his day. When most Americans -- his boosters included -- heard his name, "evenhanded" and "judicious" were far from the first words to come to mind. For years, Brandeis had taken clear stands for laws that would profoundly alter workplace and labor-management relations -- including an array of then unprecedented minimum wage, maximum hours and child labor laws. He campaigned to radically expand the fact-gathering powers of the national government, and for new checks on the power of business, through the regulation of prices and the breakup of monopolies.

At the time, these crusades raised more than questions about the best path for public policy. Almost all of the policies Brandeis supported ran up against a firewall of longstanding constitutional doctrine that had been repeatedly reaffirmed in Supreme Court precedents. Those precedents, the court had explained, enshrined inviolable constitutional principles. Many of the initiatives Brandeis had advocated violated Fifth and Fourteenth Amendment "liberty" guarantees (like the labor laws which, the court had held, impinged on the fundamental right of employers to freely bargain with employees on the terms of their relationship), or Fourth and Fifth Amendment privacy rights (in government fact-gathering), or exceeded the clearly stipulated powers of the national government (like the power to regulate interstate commerce). A nominee possessed of such a cavalier attitude toward precedent, Brandeis's detractors declaimed, "lacked the respect for the law's sanctity, which [a] judge should possess." He was utterly bereft of a "judicial temperament."

Champions of the Brandeis nomination saw things differently. Respect for precedent, they contended, was certainly important. But the nominee had said that he did respect precedent, and they took him at his word. By this, he (and they) meant that he would take precedent seriously in considering the cases that would come before him. That is, he would always give it its due. But he would defer to precedent only when that precedent, by his lights, was a genuine statement of the law. When an earlier decision of the court -- even if it had been repeatedly reaffirmed -- embodied not law, but the justice's own policy judgments (and -- again, by his own lights -- mistaken ones at that), the nominee contended it was entirely proper for him to vote to overrule it.

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The parallels between President Bush's nomination of Samuel Alito and Wilson's nomination of Brandeis, while not perfect, are instructive. The charges that the nominee has strong ties to a political movement, ties that will render him "biased" in cases involving the most contentious issues he is likely to face, leaves today's Republicans nonplussed -- just as they did the Democrats in Wilson's day.

Of course, the "biases" -- or, put otherwise, the particular framework through which he views the constitutional and legal world -- are the very reason that Wilson chose Brandeis for the court, and President Bush chose Judge Alito: Each president viewed that framework as the most appropriate one for resolving the era's most importunate constitutional questions, and, not incidentally, for correcting the "mistakes" of law, now precedent, made by earlier courts. If anything, it is much less clear that Judge Alito would act aggressively to impose his "biases" and overrule precedent. Unlike Brandeis, an activist lawyer, Judge Alito, though a movement supporter, is a long-serving federal judge and by all accounts a temperamentally cautious and judicious man. Brandeis, in contrast, was a movement visionary, famous for his passion and audacity....


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