Judge Says More Jews Belong on High Court

In an unusually provocative speech, a veteran federal appellate judge told a luncheon gathering in Los Angeles Friday that Jews have been dramatically under-represented on the U.S. Supreme Court for the last generation.

Judge Stephen Reinhardt of the U.S. 9th Circuit Court of Appeals said that considering the disproportionate number of Jews who were successful lawyers and legal scholars, the question is “why aren’t there two, three or more Jews on the court today?”

“Why have we been excluded ever since Richard Nixon . . . was elected President?” asked Reinhardt, himself a Jew.

Speaking to the City Club, a local civic forum, Reinhardt noted that from 1916, when President Woodrow Wilson appointed Louis Brandeis as the first Jewish Supreme Court justice, until 1969, when Justice Abe Fortas resigned, five Jews served on the high court and the tradition of a “Jewish seat” evolved.

Reinhardt, 59, said the tradition ended abruptly when Nixon declined to appoint a Jew to replace Fortas, who resigned under the cloud of a financial scandal.

Over the years, blacks, women and other groups have complained about the makeup of the Supreme Court.

Reinhardt, a supporter of affirmative action, said that other groups had been less represented on the high court than Jews, including blacks and women. But he noted there is a black--Thurgood Marshall--and a woman--Sandra Day O’Connor--on the court today, while explaining why he is raising the issue of Jewish representation.

“For over a generation, there has been a conspiracy of silence among Jews,” he said. “No one has wanted to say there are no Jews on the court. Whether it was to avoid stirring up trouble--a perpetual concern of Jews--and for trouble read anti-Semitism--or whether out of a mistaken belief that equality had finally arrived and Jews would be appointed on their own merits, silence prevailed.”

But one law professor, who requested anonymity, noted that a Jew--federal appeals court Judge Douglas H. Ginsburg of Washington--had been nominated for the Supreme Court in 1987 by then-President Reagan. Ginsburg, however, withdrew his nomination after it was revealed that he had smoked marijuana while a law student.

“It wasn’t his religion that brought him down,” the professor said.

Reinhardt said that the three most famous Jews in U.S. history--Brandeis, Benjamin Cardozo and Felix Frankfurter--were Supreme Court justices. He said that although Jews had excelled in other areas ranging from physics--Albert Einstein--to music--Jascha Heifetz--that in no other field had so many Jews reached the top of their profession.

A staunch liberal who was appointed to the appeals court by President Jimmy Carter in 1979, Reinhardt said there were a variety of reasons why many Jews had been drawn to the law in this country. Among those are the prospect of intellectual challenge, the opportunity to effect social and political change, the fact that Jews faced discrimination in fields such as banking, and the fact that “it is remunerative.”

He asserted that if there were more Jews on the Supreme Court, the result would be “a better, kinder and gentler nation.”

“Jews have historically been sensitive to discrimination of all kinds . . . have been particularly concerned about acts of inhumanity and oppression,” he argued. “No generality about a group is applicable to all its members. But generations of persecution leave an impact.”

The judge acknowledged that it was far from clear how a Jewish judge would vote on all issues.

Several Supreme Court scholars said Friday it was unusual for a sitting federal judge to make a speech like Reinhardt’s. They said it was a sensitive topic and likely to engender controversy.

Jesse Choper, dean of Boalt Hall School of Law at UC Berkeley and himself a Jew, said he wished that there was less attention paid to the ethnic background of the justices.

“We now have three Catholic justices--William Brennan, Antonin Scalia and Anthony Kennedy--and I’ve taken some satisfaction from the fact that no one has mentioned it,” Choper said. “That would not have been the case 30 years ago when John Kennedy was running for President and his Catholicism was a big issue.”

Scott Bice, dean of the USC Law School, said: “In the long term, we’d be better off if traits like gender, race, religion were essentially irrelevant to picking people for judicial positions.”

But Bice added that given the country’s legacy of discrimination against a variety of groups, the concerns Reinhardt expressed were understandable. “Hispanics could have a good argument for a Hispanic seat,” he said.

Among those in the audience Friday was one of Reinhardt’s colleagues, Judge Alex Kozinski, a Reagan appointee who is Jewish and is as much a darling of conservatives as Reinhardt is of liberals. After the speech, Kozinski praised Reinhardt for saying publicly something he thinks many Jews feel but are reluctant to express.

“It’s a sensitive subject for most of us and Reinhardt has more gumption than most of us.”