The Judge Who Redeemed His Family Name - Remembering Justice Benjamin Cardozo On His Birth Anniversary
 |
| Justice Cardozo in his judicial robes. Collection of the Supreme Court of the United States |
To the legal fraternity, the name “Cardozo” today globally means Benjamin Cardozo, who in the words of Andrew Kaufman, “stands for the supreme exposition of the progressive common-law tradition in American law.” However, in the nineteenth century, it meant Albert Cardozo and this name stood for political corruption and its effect on law.
On May 1, 1872, Albert Cardozo resigned from his position as a judge of the New York State Supreme Court. The New York City Bar Association had come out with a report that called for his impeachment trial along with that of his fellow judges George Barnard and John McCunn for their involvement in corruption conduct in office, and for high crimes and misdemeanours. Barnard and McCunn were summarily impeached and removed from office and had he not resigned, Cardozo would have met the same fate.
Albert Cardozo’s resignation shattered his reputation in the whole Jewish Community. This was as Kaufman puts, “an event of seismic significance in his life and that of his family, ending a brilliant public career and, according to some accounts, shaping the career of his son.”
Albert was Benjamin’s father. Albert Cardozo, who was a family man remembered by his son Benjamin as “a very good Dad” also, as a public man, came to be known as a judge motivated by political considerations who took money beneath the table. He was caught.
Born on May 24, 1870, Benjamin was just three weeks shy of his second birthday when his father resigned from the State Supreme Court. Benjamin Cardozo not only grew up with his father’s disgraceful resignation. His mother, Rebecca, after a long time of chronic illness, died in 1879, when Benjamin was only nine. His upbringing was taken care of by his sister Nellie who was eleven years older than him. Benjamin in return gave so much of himself to caring for Nellie that he remained a lifelong bachelor as given his devotion to his sister, with whom he shared a house until her death in 1929, she was his greatest priority outside the law. No wonder, he was born on May 24 – “Brother’s Day”.
As the young Benjamin contemplated his future, he felt that rehabilitating the Cardozo family name, still tarnished by scandal, required being a lawyer. In pursuit of his legal career, Cardozo set out upon a life plan designed to exonerate, or at least vindicate, his father, and bring back honour to the Cardozo family name.
Cardozo graduated with the highest honours from Columbia in 1889 and on June 26, 1991, at the age twenty-one, he was admitted to the New York State Bar Association. Within a short span of his legal practice, Cardozo made his mark as one of the top appellate lawyers in New York. While still in his thirties, he argued cases before the New York Court of Appeals more frequently than most of the city’s more experienced and better-known lawyers. As Kaufman notes, when their clients were in trouble, “New York lawyers knew they could turn to Cardozo.” During his years of private practice, Cardozo was widely recognized, throughout the New York legal community, “for his wide learning, his analytical, logical mind, and his ability as an advocate.”
By 1913, Cardozo had argued seventy-four cases before the New York State Court of Appeals and written a well-received book about the court’s jurisdiction. He enjoyed a reputation as a “lawyer’s lawyer,” one of that “small group of lawyers to whom other lawyers regularly turn for help.” As one of New York City’s most successful lawyers, his expertise was sought by an ever widening circle of lawyers, comprised largely of Jewish lawyers, who brought him their most difficult commercial work. In addition to Louis Marshall, this influential circle included Irving Lehman, Abram Elkus, Samuel Untermeyer, Joseph Proskauer, Nathan Ottinger, Julius Goldman, Morris Hirsch, Morris Stroock, Sol Strook and Moses Esberg. As he progressed in his profession, legal work was also referred by some of the city’s most eminent non-Jewish lawyers, some of whom Cardozo had appeared against in court. As Kaufman puts it, “Cardozo was now litigating in the major leagues.”
Cardozo’s reputation within the New York Bar and especially among the Jewish lawyers would play a key role in his judicial career. In 1913 anti-Tammany Democratic reform leaders in New York City joined forces with the Republican Party to put together a fusion ticket to run against Tammany Hall. Although Cardozo was a Democrat, he was a conservative who had bolted his party in 1896 to support the Republican William McKinley over William Jennings Bryan and an independent who had no ties to Tammany Hall. In 1913 these qualities translated into decided advantages when the newly formed, broadly based Fusion movement, sparked by revelations of corruption in Tammany-controlled City Hall, made a bid for control of municipal government. Cardozo had another advantage—his Jewishness. The five-member subcommittee responsible for choosing judicial candidates for the fusion ticket decided that a Jewish lawyer was needed to balance the ticket religiously. Upon the strong recommendation of Henry Moskowitz, the social reformer and labour leader who was mobilizing support for the ticket, Cardozo was selected for the Supreme Court candidacy. In recommending Cardozo, Moskowitz, a confidant of Stephen Wise, rejected the subcommittee’s first choice, Julius J. Frank. “You haven’t got the right kind of Jew,” Moskowitz advised the subcommittee. “Frank is a Felix Adler Jew, a Modernist. The man you want to get is a real Jew. I’ll tell you the man, Cardozo. He is in the Portuguese Synagogue.” Thus, ironically, Cardozo’s future turned on the Sephardic heritage whose religious tenets he had long since discarded.
Another Jewish leader who aided in Cardozo’s campaign for election to the New York State Supreme Court was Louis Marshall, the recently elected president of the American Jewish Committee (AJC). “Do not hesitate to call upon me for such assistance as it is within my power to render, to advance your candidacy,” Marshall had written Cardozo immediately after his nomination. At Henry Moskowitz’s suggestion, Cardozo enlisted Marshall’s help in seeking endorsements from various Jewish newspapers. Marshall also wrote lengthy letters on behalf of Cardozo’s candidacy, which he published in the Jewish Morning Journal, Jewish Daily News, and the Warheit. Although Marshall deplored the concept of a Jewish vote and the assumption that Jewish candidates were automatically entitled to the support of Jewish voters, he knew there were Jewish voters who might be instructed and advised on both candidates and issues, and he not infrequently sought to instruct and advise them. This was his objective in vocally supporting Cardozo’s candidacy. Writing of Cardozo’s “extraordinary capacity,” “preeminent ability,” and “sterling character,” Marshall urged a vote for Cardozo while eschewing the notion “that Jews should vote for a Jew on that basis alone.” In this case, however, argued Marshall, “because of Cardozo’s qualifications, if elected, he would shed luster upon the Jewish name.”
By this campaign, Cardozo had already successfully lifted much of the taint from the family name, as he had sought to do when he began his legal career. In 1913, the name Cardozo at the bar was associated with the son and not the father. On January 5, 1914, Cardozo took his seat as a justice of the New York State Supreme Court, the very court from which his father had resigned forty-two years earlier. For the second Judge Cardozo, this was redemption.
After only five weeks on the State Supreme Court, Cardozo received an even more prestigious judicial appointment. New York governor Martin Glynn designated him to fill an interim vacancy on the New York State Court of Appeals, the state’s highest court, to assist with the court’s backlog of cases. When Cardozo was appointed to this position on February 2, 1914, he became the first Jew ever to serve on the court. Upon his appointment, Cardozo received a formal congratulating resolution from the trustees of Shearith Israel, who noted proudly that “the first Israelite” to be a member of the court had come from North America’s earliest congregation and that he was “one whose ancestors had been faithful officers and members for two centuries and himself an Elector.”
In 1917, Cardozo was elected to a full fourteen-year term on the Court of Appeals with the endorsement of both political parties, and in 1927 was elected its chief judge, again with bipartisan support. Throughout Cardozo’s eighteen-year tenure, the New York Court of Appeals was the nation’s most distinguished common law tribunal, and Cardozo, who from the outset was the court’s brightest star, became widely recognized as the country’s preeminent state court judge.
During his eighteen years on the Court of Appeals, Cardozo wrote 566 majority opinions and 16 dissents and, unlike judges today, he did his own research and wrote his own opinions—and in longhand. Cardozo remains famous not only for the substance of these opinions but also for his elegant literary style. “There are few judges on the bench today,” noted Clarence Freed, a commentator on Cardozo’s January 1927 election as chief judge, “who are capable of expounding the law with greater clarity. . . . When he renders an opinion or a decision, he tries to lay down a principle not merely for the present but one that may endure a hundred years from now. In consequence, he cultivated a style of expression . . . which for beauty and clarity of English, has seldom been surpassed in form and substance. In short, his opinions are masterpieces of literary style.” As a legal stylist, Cardozo is often compared to Oliver Wendell Holmes Jr., whose Supreme Court seat he would fill in 1932.
During his years on the Court of Appeals, Cardozo also gained prominence as a scholar who, as the author of The Nature of the Judicial Process, The Growth of the Law, Law and Literature, and The Paradoxes of Legal Science, made significant contributions to the study of jurisprudence. His most famous book, The Nature of the Judicial Process (1922) which became a classic of U.S. legal scholarship, is the very first book ever by a judge who analyzed the process of judging, telling us how he decides cases, how he made law, and, by implication, how others should do so. Seeking to give a practical answer to the question “What is it that I do when I decide a case?” Cardozo developed “a model for judging that emphasized both its creative possibilities and its limits” which remains influential today, with most judges continuing to go about “the job of judging within the framework that Cardozo described.” Cardozo’s The Nature of the Judicial Process, which is often ranked with Holmes’ The Common Law as one of the top two works of legal scholarship by American judges, helped make Cardozo well known to lawyers throughout the country and to generations of lawyers and scholars who have followed.
In 1923, Cardozo was one of five hundred legal luminaries—lawyers, judges, and law professors who met in Washington, D.C., to found the American Law Institute. The event marked, the New York Times announced, “probably the most distinguished gathering of the legal profession in the history of the country.” From the institute’s inception until his high court appointment, Cardozo belonged to its governing council and executive committee, and was also elected its vice president. Under the leadership of Cardozo and his colleagues, the institute undertook the ambitious task of preparing restatements of the law—that is, of identifying the principles of the common law—in all major fields, such as torts, contracts, agency and property. On New Year’s Day of 1927, Cardozo took his seat as the chief judge, becoming the first Jew to hold New York’s highest judgeship.
On February 15, 1932, President Herbert Hoover announced the nomination of Benjamin Cardozo to succeed the retiring Oliver Wendell Holmes Jr. as an associate justice of the U.S. Supreme Court. Since Holmes’s retirement announcement a month earlier, a groundswell of support had emerged from legal scholars, fellow jurists, and politicians for appointing Cardozo, a man then widely considered “the preeminent judge in the country who was not sitting on the Supreme Court.”
In the month following Holmes’s retirement, Cardozo’s backers flooded the White House with messages of support. Samuel Seabury, Cardozo’s friend and former colleague on the New York Court of Appeals, who had just been elected president of the New York State Bar Association, prepared a letter of support on behalf of the eight hundred bar association members urging Hoover to appoint “the most distinguished jurist of our age.” Another important letter to Hoover came from New Jersey congressman Franklin W. Fort, whose views as a member of the Republican Party “inner circle” were of special interest to the president. In his letter, Fort noted that liberals viewed Cardozo “as their outstanding jurist since Justice Holmes retired,” while conservatives saw him “as a Judge of the highest distinction and complete sanity.” Fort added another point: “The Jews seem to regard him almost as a saint.”
When, on that March day in 1932, Cardozo took his seat on the Supreme Court of the United States, Hoover was widely praised. “Seldom, if ever, in the history of the Court,” commented the New York Times, “has an appointment been so universally commended.” One Democratic senator called Hoover’s appointment of Cardozo “the finest act of his career as president.” History would concur that it was one of Hoover’s most enduring presidential achievements.
For his part, Cardozo’s friend Stephen Wise had perceived the personal meaning of the appointment even before the Senate issued its confirmation: “The glory of it will be that [although his father] came under the malign influence of Tweed and made the name Cardozo synonymous with shame, in twenty years, Cardozo has effaced the memory of his father and his name can never more be used save in terms of reverence and honour. What an achievement for a man!”
References:
1. Andrew L. Kaufman, “Cardozo.”
2. Andrew L. Kaufman, “The First Judge Cardozo: Albert, Father of Benjamin.”
3. George S. Hellman, “Benjamin N. Cardozo: American Judge.”
4. Richard Polenberg, “The World of Benjamin Cardozo: Personal Values and the Judicial Process.”
5. David G. Dallin, “Jewish Justices of the Supreme Court: From Brandeis to Kagan, Their Lives and Legacies.”
