On this day in 1932, President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court.
Hoover, a Republican, nominated Cardozo, a Democrat, to replace Oliver Wendell Holmes, Jr., who had retired at age 90. Although Cardozo was a Democrat, he had support from across the political spectrum. Cardozo had served for 18 years on the New York Court of Appeals, first as an Associate Judge and then as Chief Judge, and his reputation had grown nationwide. Cardozo had written several respected books, including his 1921 classic The Nature of the Judicial Process. He had also received honorary degrees from numerous universities, including Harvard, Yale and Colombia, his alma mater, where he entered the undergraduate school at age 15, graduated at the top of his class, and then attended, but did not graduate from, the law school.
Although the brilliant jurist had few critics, some felt Hoover could have been more strategic in his nomination. Cardozo was from New York, and two other New Yorkers—Harlan Fiske Stone and Charles Evans Hughes—were already on the Court. Justice Louis Brandeis, the first Jewish justice, was still on the Court.
Yet Cardozo had two powerful Republican Senators on his side: William Borah of Idaho, chairman of the Foreign Relation Committee, and George Norris of Nebraska.
Hoover talked to Borah the day before his announcement. The President showed Borah a list of potential nominees in descending order of Hoover’s preference. Hoover had misspelled Cardozo’s name at the bottom, along with the three qualities that he considered strikes against him: “Cardoza [sic] –Jew, Democrat, New York.” Borah glanced at it, and, believing Cardozo should be at the top, told Hoover, “Your list is alright, but you handed it to me upside down.”
Borah reportedly told Hoover, “Cardozo belongs as much to Idaho as to New York,” and “geography should no more bar the judge than the presence of two Virginians—John Blair and Bushrod Washington—should have kept President Adams from naming John Marshall to be Chief Justice.” As for Cardozo’s being a Jew, Borah reportedly told Hoover, “Anyone who raises the question of race is unfit to advise you concerning so important a matter.”
The Senate Judiciary Committee unanimously approved Cardozo’s nomination on February 20, and the full Senate unanimously confirmed his nomination by voice vote, without debate or roll call, four days later.
Two days after his confirmation, Cardozo sent a handwritten note to Justice Holmes: “I know, of course, that I can never fill your place, but if fills me with pride and joy to be told that you are satisfied to have me there.”
Justice Cardozo took his oath of office March 14, 1932. He served until July 9, 1938.
This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.