Supreme Court nominee Merrick Garland has passed the legendary Louis Brandeis in one area – the longest wait between a nomination and a confirmation approval to the Court.On Wednesday, Garland hit day 126 in the nomination process. One hundred years ago, Brandeis went through a 125-day process in 1916 between his nomination as the first Jewish candidate for the Court and his confirmation.
In Garland’s case, he could set a record that may stand for some time, considering the earliest his nomination process in Congress would be in the Senate’s lame-duck session after the November elections.
“Judge Garland’s long wait reflects the intense partisan politics that surround this Supreme Court vacancy — politics that were similarly intense in Brandeis’s day,” said National Constitution Center president and CEO Jeffrey Rosen in a New York Times op-ed this week.
Brandeis faced a long nomination process because of his religion, his politics, his record of fighting monopolistic businesses, and the opposition of former President William Howard Taft.
The Senate held the first-ever Judiciary Hearing on a Supreme Court nomination to consider Brandeis for the Court. During the nomination fight, Brandies wrote his friend, the legal scholar and Harvard Law School dean, Roscoe Pound, about the uproar over his nomination. “I doubted very much whether I ought to accept, but the opposition has removed my doubts,” Brandeis said in February 1916. In the end, the Senate approved Brandeis by a 47 to 22 vote.
After Brandeis, the longest waits in the nomination and voting process were for the nominations of Robert Bork (114 days) and Potter Stewart (108 days) as Associate Justices and Abe Fortas as Chief Justice (100 days). The Bork and Fortas nominations failed.
Media Alert: Watch our Town Hall event about Justice Brandeis on C-SPAN’s Book TV at 10 p.m., Sunday, July 24.