Purely Commentary
Dispute Over Supreme Court 'Jewish Seat'
By asserting that there should not be either a "Jewish seat" or a
Catholic, Protestant, Negro or any other specific "seat" on the United
States Supreme Court—even, as he put it, a "Wasp scat," former
Supreme Court Justice Abe Fortas followed the line adopted by former
Supreme Court Justice Arthur Goldberg and by practically all national
Jewish organizations. But there has been a difference of opinion and
some have held that since there has been a tradition for a Jewish judge
on the high court since Louis D. Brandeis' rise to that post in 1916—
there were even two Jewish judges on that bench when Felix Frank-
furter and Benjamin Sardozo served together for about three years—
that the policy should not be abandoned.
Several of the advocates of the so-called "Jewish seat" have
pointed out that Jews have so much to offer on the high court that the
nation should not be penalized by the failure to have a judge from
Jewish ranks.
Undoubtedly the most impressive contribution to the discussion
appeared in an essay by Nathan Lewin, a graduate of Yeshiva College
and Harvard Law School who served in several capacities in the U.S.
Department of Justice, in Jewish Life, the magazine of the Union of
Orthodox Jewish Congregations. Under the intriguing title "The Vanish-
ing Jew in the Federal Establishment," Lewin reviews the services
that have been rendered by Jewish justices, calls attention to President
Nixon's announcement with pride that he felt obliged to disregard
"ethnic considerations" in selecting a successor to Fortas and declares
that there is "bitter and sweet irony in Goldberg's position that there
is no such thing as a "Jewish seat" on the bench. It is on the latter
score that Lewin, referring to Nixon's selection of Haynsworth as his
choice to succeed Fortas, makes a point that challenges Goldberg,
stating:
It is hardly a secret that Goldberg was given Justice Frank-
furter's place when the latter retired after suffering a stroke in
1962 precisely because it was the "Jewish seat." Had the vacancy
been other than Frankfurther's President Kennedy's more likely
choice would have been Archibald Cox, then solicitor general,
Inded, Goldberg was passed over—reportedly much to his distress
—when, earlier in the same Supreme Court, Justice Charles
Whittaker resigned and Byron White was appointed to take his
place. And one cannot help but believe that Lyndon Johnson was
well aware of Goldberg's religion when he exercised his noted
power of persuasion to have Goldberg trade his Associate Justice-
ship for the job of Ambassador to the UN. In thus freeing the "Jew-
ish seat," Mr. Johnson was creating a place of honor for his Jewish
friend of many years—whom he was prepared to make Chief
Justice of the United States—Abe Fortas.
Former Justice-and-Ambassador Goldberg's public assent to a
non-Jewish nomination, is, however, more than historic irony. It is
also a graphic demonstration of the uneasy and demeaning self-
abnegation which Jewish success has produced in this country. For
it is unlikely that there are many white men in the United States
who could have felt more strongly than Arthur Goldberg that the
nomination of a Negro to the Supreme Court was long overdue well
before Thurgood Marshall became a Justice. Goldberg undoubtedly
welcomed Marshall's nomination—and not because it was a non-
discriminatory selection based on merit. The selection of a black
man for the Supreme Court was symbolic of the nation's awakening
recognition of the Black community. Nor has anyone ever thought
it reprehensible for a President to structure the Supreme Court so
that it reflects the diversity of America; indeed, the fact that many
of the Court's decisions turn largely on issues of policy and not on
pure logic is a strong argument for deliberate distribution of its
members so that they constitute a cross-section of the country's
population. Why then, if it is permissible to seek a Southerner, a
Negro, a "law-and-order man," or Republican, is it not proper to
pick a Jew? Is religious and national identification more irrelevant
than skin color or than the state of one's birth?
The Lewin argument does not end here. His contention is that Jews
are leaving their posts in the Federal government—which accounts for
the title of his essay, "The Vanishing Jew in the Federal Establish-
ment." He goes from department to department to show how the num-
ber of Jewish employes, especially in the top echelon, is vanishing.
His analyses raise so many Jewish questions as well as other issues
involved in the political tranformations in this country that they must
be studied and considered seriously. What he alludes to many have
serious effects on the Jewish position in the years ahead, especially
since—as we have indicated on several occasions—the Jew is con-
stantly becoming more and more the minority while the Negroes are
gaining more and more of a dominant role. Not that this is a fault,
except that very often numerical strength eliminates consideration of
skills and merit and gives prior positions to the vote-providers than to
the brain trusters.
Thus, in his outline of existing conditions and the new political
domination by a Republican administration, Lewin, in his article on
- the vanishing" Jewish factor in the Federal government, wrote as
follows:
The President is an honorable man, and surely no one accuses
him of overt anti-Semitism. Nor is it likely that John Mitchell,
raised in New York City law practice, and Robert Finch, who will
need Jewish support for future political efforts in California, are
deliberately keeping Jews out of policy-making positions. (Indeed,
Attorney General Mitchell did keep on a Jewish executive assist-
ant who had worked for Ramsey Clark, notwithstanding the custom
of recent Attorney Generals to treat that job as one calling for
personal loyalty. Each of the Attorneys General since Herbert
Brownell has moved in a new executive assistant upon taking
office—even where there was no change in party affiliation.)
The fact — which one can accept as true — that Jewish Re-
publicans are harder to find than Jewish Democrats does not real-
ly explain the great disparity in Jewish representatian between the
Kennedy-Johnson Administration and the Nixon Administration.
The poll-takers tell us that Republicans generally—regardless of
religious persuasion—are harder to find in this country than Demo-
crats. Yet Mr. Nixon is managing to find enough to fill the policy-
making jobs he wants filled. And if he wanted Jewish Republicans,
it would take little extra effort to enlist those so qualified for
responsible jobs in executive departments. From my own personal
observation and informal polls taken among friends and associates,
I can only conclude that—at least outside of New York City—the
Jewish vote for Nixon in the 1968 election was far larger than the
news commentators and analysts have allowed.
2—Friday, January 9, 1970
THE DETROIT JEWISH NEWS
The 'Jewish Seat' . . . Supporters
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By Philip Saphir Forecasts
VOMOVitZ
The very least that can be said with absolute confidence is that
no effort is being made by Mr. Nixon or his associates to see to it
that Jews—like Negroes or women—are represented at the visible
policy-making level of the executive departments. This may reflect
an unarticulated view that they were overrepresented in prior
administrations; or it may be attributable to deliberate neglect—
to a feeling that the Jewish constituency needs no special favors
and can be left to advance on the individual merits of its repre-
sentatives.
Neither of the above premises is particularly surprising or re-
prehensible, and the Jewish community in the United States can
probably live with both. Neither, however, fully explains the very
substantial reduction in Jewish visibility—nor does it explain an-
other aspect of this phenomenon:
The President has, notwithstanding the absence of Jewish
Cabinet, sub-Cabinet and sub-sub-Cabinet officials, surrounded
himself with a good number of White House advisers who are
Jewish. The best-known, of course, are Henry Kissinger, Arthur
Burns, and Leonard Garment. Kissinger's views are said to carry
more weight than those of the Secretary of State; Burns is reputed
to have the power to overrule the Secretary of the Treasury and
the Secretary of HEW (and even to do vigorous battle with the
autonomous Federal Reserve Board); and Garment has the Presi-
dent's ear on civil rights matters and other domestic policy goals .
Why are these highly qualified and very capable men kept close
to the President for advice, but no Jews appointed to the Cabinct
or to important sub-Cabinet jobs? And why no Jew on the Supreme
Court?
One can't help concluding that there is a certain disquieting
similarity between the record of the Nixon Administration on the
appointment of Jews to "visible" posts in the governmental hier-
archy and the attitude which prevailed for many years (and has
still not been totally eradicated) on New York's Wall Street—in
the law firms, banking institutions, insurance companies and brok-
erage houses. Long after American Jews had firmly established
themselves in the arts, in trade and in a variety of professions,
(including, of course, law) the Wall Street establishment remained
an almost impregnable barrier. Jewish partners in Wall Street
law firms were so few in number just a decade ago that they
could—like Jewish major-league ballplayers—be ticked off by name
by aficionados. It was in my time in law school, for example (still
less than 10 years ago), that the single Jewish partner of a lead-
ing Wall Street firm (which had about 50 partners) died in an air-
plane that went down in the East River. And it was a subject of
caustic humor among nearly all of my Jewish classmates that this
sank the firm's chances of attracting the Jewish Law Review
editors; it no longer could point discreetly at the Jew who had
"made it."
The point of it all was that the firms wanted the young Jewish
lawyers who had demonstrated talent and ability but not to put
them in the front array—in the showcase, as it were. The very
same firm (which now has several Jewish partners) did cite the
tragically submerged one as proof that it had erected no "bar" to
Jewish advancement, but somehow I and my Jewish classmates
were told by its representatives more often and pointedly than
others that if, after several years, the firm decided that our ad-
vancement to partnership was not possible, we could be "well-
placed" with other small (read "Jewish") firms in New York.
The short of the matter is that the pattern in Wall Street—
which is followed by banks and insurance companies as well—was
(and still is, to some degree) to "use" the "Jewish brains" in the
backrooms, to rely upon young Jewish lawyers as drones but never
(or hardly ever) to dress them in royal garb and give them access
to the royal courtyard. The leaders of the bar have always been
perfectly prepared to seek the advice of Jewish attorneys and to
pay them well as consultants. But it was viewed as folly or (worse
yet) boorish indiscretion to stick one of them in the front ranks.
There was a tacit understanding that, unlike children, Jews were
made to be heard but not, if one could help it, to be seen.
Things are beginning to change—though not as much in banking
and insurance circles as in the law. The American Bar Associa-
tion has even gone so far as to elect a Jewish president—a highly
respected and very capable Philadelphia lawyer who has spent an
extraordinary amount of time and effort on the Association's activi-
ties. But traditions and attitudes die hard—hardest, surely, among
those like Messrs. Nixon, Mitchell, Rogers, Kennedy (the Secretary
of the Treasury), Stans, et al, who have spent their adult lives
surrounded by these attitudes, and who may well owe their per-
sonal success to the values which give rise to them.
The role of the behind-the-scenes adviser to those who rule is,
of course, not a new one for the Jew. Many celebrated figures
throughout our history have served in this capacity. But recent na-
tional Administrations in the United States—including, I think,
those of Eisenhower, Truman, Roosevelt and particularly the
Kennedy-Johnson Administration—have seen the emergence of the
"visible" Jew in the Federal establishment. As one who was in the
Johnson Administration in its last years, I can testify to the fact
that power and its emoluments were assigned, without the slightest
hesitation, to Jews. In this area, as in other matters in the broad
spectrum of "civil rights," what the present administration has
done to date can only be characterized as a step backwards.
What Nathan Lewin has written may not be indisputable. It is
subject to review and is debatable. But it provides enough challenges
for consideration to be taken very seriously. The fact is that for a
time young Jews aspired to rise in government posts. This may be
changing very drastically, just as previous other Jewish professional
intentions have changed, especially since many Jews have turned to
the sciences, to mathematics and physics and the new atomic explora-
tions. There has been a change also in the previous trend among Jews
to pursue teaching as a profession. The Negro-Jewish situation in New
York even contributed towards an exodus from that field of endeavor
and drew many Jews away from a labor of love: teaching. It has
nearly destroyed a generation's devotion to the field of learning.
Now we have the political problem, the question involving Jewish
participation in government. If there is to be a turning away from it,
it will be another deplorable occurrence. True: young Jews will find
other avenues of pursuit, just as our non-Jewish neighbors fmd a way,
jointly with us or whatever the trends may be in certain "ethnic" and
other quarters, to become rooted in some calling or other. But that
does not reduce the urgency of a situation outlined by the writer in
the Orthodox Jewish Life Magazine. Nathan Lewin's theme deserves
very serious study.
Two 'Lean Years'
TEL AVIV (JTA)—At least two
"lean years" for the Israeli econ-
omy was predicted by Joseph Sa-
pir, the new trade and industry
minister, in an address to the Is-
rael Manufacturers Association.
He declared also that the decline
in Israel's dollar reserves "can-
not be arrested immediately" but
he added that Israel must be alert
that "they do not drop below the
safety line. Our aim must be to
restore reserves to the safe level
by 1972."
He renewed a proposal which
he made frequently in previous
years that the government sell to
private owners abroad some of
its enterprises. He also indicated
that the treasury would give
more long-term loans from the
development budget to industry.
In a related development, the
alignment committee on economics
agreed that wage policies for the
coming year will be decided by a
group to be named by the commit-
tee. Views on wage levels were
reported to range from those of
the Manufacturers Association
whose members are willing to
grant pay increases of around 5
per cent to those of the leftist
Mapam, which is demanding in-
creases ranging from 10 to 15 per
cent.
Officials said the issue must be
decided by Thursday when the
semi-annual consumers price index
is published. The index is the basis
for cost-of-living allowance adjust-
ments now added to all salaries in
Israel. The issue of retaining the
automatic linkage is one of the
problems which will be considered,
the officials added.
Meanwhile, the Central Bureau
of Statistics reported that Israel's
trade deficit increased during
1969 because of an excess demand
over output. Internal demands for
all purposes, including government
outlays and investment rose by 14
per cent, offsetting a slight per
capita edge of production over
consumption. Private consumption
per capita increased 9 per cent in
1969 while per capita output rose
by 9.5 per cent.
ADL Survey Finds
29 States Improved
Civil Rights Laws
NEW YORK (JTA)—A year-end
survey by the Anti-Defamation
League of Bnai Brith disclosed
that 29 states adopted laws im-
proving the protection of civil
rights during 1969.
The results of the survey were
published in "Law," an ADL pub-
lication. The number of states
passing protective laws was down
13 since 1967, the last year in
which nearly all legislatures met
for general business.
This was attributed to the fact
that "most states in which one
can realistically expect enactment
of such laws have already taken
action," the publication said. A
majority of the laws passed in
1969 strengthened existing legisla-
tion against discrimination.
The survey found, however ,
that fair housing legislation still
lags well behind existing enact-
ments against other types of dis-
crimination. Five states—Dela-
ware, Idaho, Nebraska, New
Mexico and Washington—passed
fair housing laws in 1969 bring-
ing the total up to 26 states.
There are 37 states with laws
against discrimination in employ-
ment and 38 that have laws
against discrimination in places of
public accommodation.
The report noted that Indiana,
Minnesota and New York added
to their fair housing laws last year
a prohibition against "blockbust-
ing." A similar law was enacted
by Illinois which still has no fair
housing law. Maine was reported
to be the first state to pass a law
dealing with discrimination by
private clubs which hold state
liquor licenses.