The ProsenPeople

Why it Matters that Marshall was Never Nominated for the Supreme Court

Friday, March 01, 2013 | Permalink
Earlier this week, M. M. Silver wrote about the riches in Louis Marshall's archive and explored why it took so long for someone to write a full-length biography of this important figure in American Jewish history. He has been blogging here this week for Jewish Book Council and MyJewishLearning.

The main challenge I faced when preparing a biography of Louis Marshall stemmed from the gap between the perceptual confidence that characterizes American Jewish life in the 21st century and the tensions and insecurities of Jewish life in the United States during the first decades of the 20th century. The trick, I believed, was to create an intelligible dialogue between these differing modes of thought and feeling. To recreate historical events uncritically, exactly as Marshall and his peers saw them, would draw contemporary readers into a morass of inhibition about being "too Jewish" that is foreign to them, whereas to overlook realities and attitudes that were indisputably part of Marshall's American Jewish milieu would be condescending and, worse, injurious to empirical rules of historical scholarship.

American Jewish history is happily devoid of the angst that characterizes Jewish life on other continents and in other contexts. It is perfectly reasonable for contemporary readers to assess critically the self-defense labors of previous generations of American Jews, and conclude, in some instances, that past Jewish leaderships were overly defensive and inhibited, even in ways that could be paranoiac or self-defeating.

Yet this critical license to look at the past heroes of American Jewish life as high-strung, occasionally histrionic, figures can be taken much too far; and to my mind, at least, much of the finest recently published scholarship on American Jewish life in periods and context applicable to Marshall's life, such as the Roaring Twenties, is flawed to some extent by researchers' anachronistic projection of Jewish life in America in the late 20th century or early 21st century onto the American Jewish past. Scholars who focus on how Jews came to feel "at home" in America in a period like the 1920s tend to under-emphasize the extent to which anti-Semitism was a constant presence in the minds and real life circumstances of both well-established Jews, and struggling immigrant Jews.

Writing draft chapters of the biography, I recalled how the great English historian E.P. Thompson, whom I idolized in my college years, warned about how the "enormous condescension of posterity" can lead historians toward breathtakingly incorrect conclusions about the life choices reached by the heroes of the past. Along these lines, I ruminated about how anachronistic soft-pedaling of anti-Semitism as a real force to be reckoned with on the landscape of early 20th century America could produce blind spots in a biographer's evaluation of Marshall's life course.

A revealing case in point is the story of why Louis Marshall never won a Supreme Court appointment. In view of Marshall's stellar accomplishments as an attorney, which were lauded by legal luminaries such as Benjamin Cardozo, and the fact that Marshall himself lobbied in at least two instances for an appointment and had powerful allies such as Jacob Schiff on his side, scholars have long pondered about the non-attainment of this goal. Misinterpreting a cryptic remark attributed to William Howard Taft, the President who did not appoint him to the Supreme Court bench, generations of scholars concluded that the story's gist has to do with political partisanship (the Republican Taft's remark about Marshall's non-appointment referred to the latter's law partner, Samuel Untermyer, an outspoken Democrat), or other relatively innocuous topics.

Though I stumbled onto the answer to the riddle of the non-appointment early in my research, I originally planned to relegate the subject to an extended footnote, largely because of the discomfit inherent in correcting my teachers' teachers in the role of an impish smart aleck. Everything that had ever been written on this topic was dead wrong, but ultimately the point is moot because Taft nominated the eminently qualified Charles Evans Hughes, and any conclusion as to whether he "almost" or "might have" tapped Marshall for the job would be predicated speculatively on the President's state of mind.

As chapter fragments began (much to my surprise) to consolidate as the draft of a full biography, it became obvious that the subject could not be kicked downstairs into a footnote. In spring 1910 Marshall badly wanted to became a Supreme Court Justice, and the disappoint which this frustrated ambition engendered clearly had biographical consequences that couldn't be ignored.

Moreover, to remove from the tale of Marshall's life the character responsible for making his Supreme Court bid a non-starter, Hearst newspaper editor Arthur Brisbane, probably the most influential journalist of the era, would have excised from the biography one of its most compelling and dramatically poignant ironies. As it turns out, the same person responsible for the most crushing disappointment in Marshall's professional career, was later a decisive collaborator in the most inspiring accomplishment of Marshall's work as a Jewish advocate (Henry Ford conditioned the release of his apology to the Jews on Brisbane's involvement, and Brisbane cooperated fully with Marshall in this triumphant moment).

The issue, I realized, had been incorrectly formulated, largely because of anachronistic wishful thinking about American sociopolitical realities a century ago. The way the question has to be posed is not "why did Marshall lose his Supreme Court bid," but rather "why was such a nomination a non-starter"? Were we to ignore how saturated by Jew hatred Marshall's circumstances became once his desire for a place on the bench became public knowledge, we would be in danger of misunderstanding how he calibrated levels of assertiveness in subsequent Jewish defense efforts against Ford, the KKK and others anti-Semites. In fact, we might overlook the roots of his motivation as a Jewish leader in America were we not to see what he saw when he pursued his highest career ambition, and feel what he felt when he saw that desire derided savagely in mass media attacks that were rife with anti-Semitic innuendo about greedy corporate lawyers being unworthy of the highest bench in the land. Louis Marshall's law firm, wrote Arthur Brisbane in a syndicated column that opposed and ridiculed his bid for the Supreme Court, is founded on the "contention that the poor have no rights when their presence interferes with the delicate sensibilities of the rich." One need not fret about Marshall's quashed ambition, the Hearst papers exulted in upper case glee, because his firm "WILL PROBABLY HAVE PLENTY OF IMPORTANT LUCRATIVE WORK ON ITS HANDS FOR MANY YEARS TO COME!"

So, what did Louis Marshall see when he threw his hat in the ring for the Supreme Court bench? What was President Taft really talking about when he asked Jacob Schiff sarcastically "would you name Sam Untermyer's partner to the Supreme Court?" Well that's a story about resort cottages, tuberculosis treatment, Macy's department store, Lakewood New Jersey and many things I never imagined needing to write about when I began this biography project, and ended up detailing to avoid a free fall into the abyss of enormous condescension evoked by E.P. Thompson's stricture.

Join M. M. Silver for the Louis Marshall and the Rise of Jewish Ethnicity in America: A Biography book launch on March 12th at Congregation Emanu-El in NYC. More information about this event can be found here

Can Israel Help American Jews Recall Their Own Forgotten Heroes?

Wednesday, February 27, 2013 | Permalink
Earlier this week, M. M. Silver wrote about the riches in Louis Marshall's archive. He will be blogging here this week for Jewish Book Council and MyJewishLearning.

Now that my previous blog established to everyone's complete satisfaction that Louis Marshall ought to be considered a paramount figure in the history of America's Jewish community, and, in fact, that his personal archive contains papers of import comparable to Newton's apple-stained original draft of the law of universal gravitation, it behooves me to wrestle with a question that arose a few times during the drafting of my biography of Marshall. Here it is: given that Louis Marshall was the man who successfully dictated the terms of Henry Ford's apology for the Dearborn Independent's scurrilous anti-Semitic campaign, who drafted the terms for Jewish minority rights in Eastern Europe after World War I, who argued before the Supreme Court more times than any attorney in his era, who was a founder of many of American Jewry's premier organizations and institutions, and who became (in his final crusade) a progenitor of American Jewry's special relationship with Israel, why did it take over eighty years for some schlemozzle to publish a full-length biography of him?

Formulated in that way, this question is a bit misleading and self-serving. Two or three books about Marshall were published in years after his death. Morton Rosenstock's Louis Marshall: Defender of Jewish Rights is the best known. Biographical in structure though not comprehensive in intent, they are very informative and useful volumes.

Also, Marshall's preeminent position in early 20th century American Jewish organized affairs is at least implicitly recognized by the quality of scholars who wrote noticeably extensive articles about important facets of his life, such as his campaign with the American Jewish Committee to "abrogate" America's commercial treaty with Russia, due to Tsarist discrimination, or his part in the dispute about the formation of the American Jewish Congress, or his relations with the Forward newspaper and its socialist editor, Abraham Cahan. All readers of seminal works in Modern Jewish History will recognize the names of these scholars (Naomi Cohen, Jonathan Frankel, Lucy Dawidowicz) whose intensive probing of key episodes in Marshall's life is suggestive of its magnetic significance.

Just as surely, the lack of a systematic biography about Louis Marshall has long been regarded a curious anomaly; and from time to time, most recently in a special spring 2008 edition of the American Jewish History journal, scholars and students have publicly scratched their heads in puzzlement about this lacuna.

One possible explanation of this anomaly hinges on political correctness. No doubt, some historians chose not to grapple seriously with Marshall because of specific political and ideological choices he made. Scholars and students who confronted Marshall's legacy tended to be influenced by Zionist perspectives whenever they thought about early 20th century Jewish issues, and by liberal Democratic party perspectives whenever they addressed American social and political issues in years leading up to the Great Depression, and thereafter. At points in the 1920s, Marshall quarreled bitterly with the Zionists, and he was a lifelong Republican whose papers are studded with archly conservative pronouncements on various socio-political issues.

However, this "political incorrectness" account of the neglect of Marshall's legacy only goes so far. During Marshall's lifetime, perspicacious observers understood that infused within the unseemly contentiousness of his own "non-Zionist" group's disputes with the Zionists from the Yishuv in Mandatory Palestine, there was a powerful cooperative spirit of Jewish solidarity; and Marshall's major contribution to the formation of the Jewish Agency, the key political instrument of the Jewish state in the making, was deeply appreciated after his death, as illustrated by the telling remark in Chaim Weizmann's autobiography attesting that Louis Marshall was "much nearer to Jews and Judaism…than Louis Brandeis, an ardent Zionist, ever was."

Similarly, even a cursory examination of the record of Marshall's activities during the last, crucial phase of his life establishes that while he remained nominally affiliated with Republican conservatism in the 1920s, his monumental labors for African Americans, open immigration, environmental protection, Haitian independence and many other causes left an undeniably liberal, sometimes even radical, stamp on his life record. Just as the Zionist champion Chaim Weizmann lavishly eulogized the non-Zionist Marshall, paragon figures of American liberalism (such as NAACP directors) paid tribute to his contributions. In short, Louis Marshall was not really neglected by scholars because he was politically incorrect.

For several decades, I believe, Louis Marshall was effectively written out of history not because of anything he ever said or did, but because a "consensus" methodology, important in many sub-disciplines of historical study though the 1950s, took an especially firm grip on Jewish History in the period after the Holocaust, and Israel's formation. The abiding topic of concern in Marshall's life was anathema to this consensus methodology.

Louis Marshall's career can be thought of as a search for creative accommodation between the opposing status concerns and sociopolitical outlooks of his own "Uptown" group of affluent Jews of central European origin, and the "Downtown" masses of immigrants from Eastern Europe.

A generation after Marshall's death, in the period when historians first had the retrospective margin of distance needed to assess his accomplishments, this topic of Uptown-Downtown creative tensions was taboo. In 1950s America, second and third generation Jews were happy to leave all that Russians versus Germans stuff behind them. And scholars after the Holocaust were understandably drawn to images of Jewish revival and unity – the boisterously contentious Uptown-Downtown vortex into which Marshall was drawn as a creative mediator was not, for them, a compelling choice of subjects.

Israel's situation in its first years surely contributed to this methodological recoil from discussion of relations between "east" and "west" Jewish sub-groups. Through the 1950s, at least up to the Wadi Salib riots in a low income, immigrant Haifa neighborhood, discussion of the bewilderingly complex "east-west" ethnicities gathered in the new state of Israel's ma'abarot tent towns was aggressively stigmatized. In Israel, "consensus" methodology promoting unity and downplaying sub-group ethnicity was considered a strategic necessity in an ongoing primordial conflict with Arab forces.

This consensus methodology was predicated on melting pot, homogenized visions of reality that will have increasingly little appeal as Jewish Studies proceed in a multi-cultural era. I wrote a big book about Louis Marshall under the influence and inspiration of a multi-cultural era that looks out to patterns of ever-renewing conflict and reconciliation between demographic sub-groups not as a topic to be dismissed or obscured, but rather as the essence of national experience.

The transition from homogeneous to heterogeneous modes of perceiving Jewish experience has been absolutely remarkable in Israel, during the three decades of my life in the country. When I arrived in Israel, as a wide-eyed American college graduate, Ashkenazi-Mizrahi relations were regarded as close to the worst thing that could be discussed in public (a "conspiracy of silence" stifled the topic, claims the Israeli scholar Yehuda Shenhav), whereas today a critical mass of people in the country relate to the issue candidly, in full recognition of its salience, and with a sense that this story of sub-groups relationship might not be unfolding toward a Hollywood-style happy ending, but is nonetheless mainly positive in character, or at least not a topic to be swept under the rug.

Compared to the Israeli situation, contemporary American Jews might have a much less tangibly immediate connection to east-west sub-group dynamics. That is to say, the love-hate creative tension in relations between yahudim and Yiddin, between the Uptown Germans and the Downtown Russians, was part of their grandparents' reality, not theirs. Nonetheless, present and future generations of Jews in America are, and will be, conditioned by multi-cultural modes of perception. When they look back to their community's past, they will not peer through the monochromatic prism of consensus methodology. Instead, they are, or will be, keenly interested in the diversity of past Jewish life. For them, as for their Israeli counterparts, the sort of east-west mediation to which Marshall's life became dedicated will not appear as a problem to be ignored, but rather as the essence of ethnic or national experience.

In the months when I was preparing a biography Louis Marshall, my colleagues in friends in Israel sometimes asked me incredulously why someone who was trained to do Jewish History research in Israel, and who teaches in Israel, would devote so much time to an American Jewish figure. The problem with that question is not really that it draws upon stereotypical perceptions of American Jewish life (though it certainly does that): it is also based on a stereotypical and self-defeating premise that lessons about Jewish life in Israel are to be learned and shared exclusively among Israelis.

Writing this biography, I wondered sometimes how Louis Marshall, who was not a Zionist but who was deeply curious about what the culture of a Jewish state might be like, might have responded to the final, "Israeli," conclusion I drew about the project. More than anywhere else in modern times, the imperative of mediating creatively between the competing, though not antithetical, outlooks of Jewish sub-groups – that is, the abiding mission of Marshall's life – is elucidated by life in the Jewish state in the 21st century. So I'll end this blog by wondering aloud whether the idea of a full length biography of Louis Marshall coming out of Israel ought to be seen as a contradiction to the logic of his life as a premier American Jew. However vainglorious it might sound, I took pride in thinking of this project as consummation of that logic.

Join M. M. Silver for the Louis Marshall and the Rise of Jewish Ethnicity in America: A Biography book launch on March 12th at Congregation Emanu-El in NYC. More information about this event can be found here