The Jews in America Trilogy

by Birmingham, Stephen;

  Within these contours of Sephardic life, Benjamin Nathan Cardozo grew up. His was a notably unhappy childhood. And yet, if it had not been for the family misfortunes, in particular his father’s disgrace, it is quite unlikely that Benjamin Cardozo would have become the man he came to be. Because, from his earliest boyhood, he set out upon a life plan designed to exonerate, or at least vindicate, his father, and bring back honor to the Cardozo name.

  His growing up was not particularly helped by his father’s choice of tutor for him. Albert Cardozo was a snob—which may have been at the root of many of his troubles—and keeping up with the Joneses was one of his preoccupations. In the 1880’s the family to keep up with was, of all people, that of Joseph Seligman, the German Jew who had arrived in New York in the 1830’s with one hundred dollars sewn in the seat of his pants, had started off as a foot peddler in Pennsylvania, and had succeeded to the extent that he now headed an international banking house that did business with the Rothschilds. To the older Sephardic group, it seemed that the Seligmans and their ilk had taken on preposterous airs, and they were actually getting into select clubs such as the Union. A few years earlier, Joseph Seligman had startled New York’s Jewish community, and the rest of the city as well, by hiring Horatio Alger to tutor his children. Not to be outdone by an upstart immigrant German, Albert Cardozo decided to do the same for his son Ben, and Mr. Alger joined the Cardozo household.

  Small and roly-poly, with a round bald head and squinting, nearsighted eyes, Mr. Alger was described by one of the family as “a dear, absurd little man.” He was certainly a far cry from his rags-to-riches newsboy heroes in such then-popular romances as Ragged Dick and Tattered Tom. He was flutily effeminate, with mincing ways and a fondness for practicing ballet positions in his spare time, crying out such exclamations as “Oh, lawsy me!” or bursting into wild tears when things went wrong. Yet he once seriously announced his candidacy for President of the United States after a friend, as a joke, told him he could defeat Garfield.

  The immense popularity of his books had made Alger a rich man, but he always considered his true forte to be poetry, which he wrote very badly. He once wrote a poem—of which the kindest critical word was “interminable”—explaining American life. And because he had created boy folk heroes, he saw himself as a kind of missionary to youth. This was why he accepted tutoring posts, and why he gave so generously to causes for the betterment of orphaned boys, shoeshine boys, hoboes, and derelicts on the Bowery. As a teacher he was hopelessly ineffective in both the Seligman and the Cardozo households, where healthy growing boys kept him perpetually cowed. They locked him in closets and tied him to chairs, and played all manner of cruel tricks on their tiny tutor. Benjamin Cardozo once said, in a remarkable example of understatement, “He did not do as successful a job for me as he did with the careers of his newsboy heroes.” And yet one thing may have rubbed off on young Ben Cardozo: Alger’s love of poetry. All his life, Benjamin Cardozo was an avid reader of poems—he occasionally tried his hand at poetry himself—and had a fascination, and tremendous respect, for the English language.

  At the same time, there was no doubt that, despite any deficiencies in his education, young Ben possessed a brilliant mind—a mind that would carry him into Columbia as a freshman at the age of fifteen (he graduated at nineteen) and, with what he described as “an almost ecstatic consecration to the law,” into a career that has hardly been equaled in the history of American jurisprudence. With only two years of law school, instead of the usual three, and without even an LLB degree, he became a member of the bar, moved on to become chief judge of the court of appeals of New York State, and at last achieved the highest judicial post in the country, justice of the Supreme Court of the United States. But was it his brilliant mind alone that pushed him to these accomplishments? A great deal is known and has been written about Benjamin N. Cardozo, the great jurist, humanitarian, and towering public figure. Somewhat less is understood of the man, who was lonely, tortured, obsessed.

  Despite moments of inadvertent hilarity provided by Horatio Alger, the Cardozo household grew increasingly gloomy during the years of Ben Cardozo’s youth, and a pervading air of melancholy and dissent settled upon the place. Though the Cardozo children were bound together by natural ties of love and family, the strongest bond between them seemed to be sadness. There were endless quarrels with relatives, sometimes over money or business matters, but more often over real or imagined social slights. As Ben Cardozo’s cousin Annie Nathan wrote:

  As a child, I was always trying to tread a path warily through the maze of family feuds. “Was it Aunt Becky or Aunt Rachel,” I would ask myself, “who didn’t speak to Uncle John?” “Which aunt was it with whom Mama had quarreled?” These perplexing feuds always had their start in the failure of some relative to “ask after” one of the family. There were fourteen aunts and uncles—almost all with numerous progeny—so some slight, quite unintentional lapse might easily have been pardoned. But not in our family. It was the crime of crimes. It was with us as the laws of the Medes and the Persians that on meeting a relative (particularly an “in-law”) however fortuitously, however pressed for time, one must inquire meticulously into the state of health of each and every member of that particular family. Any deviation, any temporary forgetfulness, was set down as a deliberate slight, to be resented as such.

  At times, it must have seemed to young Benjamin Cardozo that a terrible curse hung over his branch of the Nathan family, rather like that which afflicted the Greek House of Atreus: somehow, before he was finished, each member of the Cardozo family must be made to pay for the father’s sins. Not long after his mother’s death, an older sister, Grace, died at the age of twenty-five. That same year, Ben’s father died. That was the autumn Ben started at Columbia. Next year, Ben’s twin sister, Emily—described as “the one high-spirited member of the family”—was married, but in the family this was treated as another tragedy. The man she married, Frank Bent, was a Christian and, though Emily was the only one of the seven Cardozo children to marry, she was thereafter treated as dead. The family actually “cut kriah” for her—that is, they held a service for the dead for her. (To cut kriah is to cut a tiny snippet of one’s clothing—always in an inconspicuous place, or one easily mended—symbolic of the Biblical practice of mourners rending their garments over the deceased.) This particular family service, Benjamin Cardozo once recalled, “disgusted” him. Emily Cardozo’s name was dropped from family conversation, and her portrait, literally, was turned against the wall.

  A few years later, Ben’s only brother (another had died in childhood), Allie, whom he idolized, died, also at an early age. That left Ben and two older spinster sisters, Ellen and Elizabeth—plain, shy Nell and beautiful, excitable Lizzie. Lizzie wanted to be a painter, and she studied art under Kenneth Hayes Miller, who described her as “the end of a long line of aristocrats. She looked like a feminine edition of Dante. Eyes so dark and intense, the aquiline, aristocratic nose.” For all her beauty and the intensity of her personality, Lizzie Cardozo had very little artistic talent, which few people—including Mr. Miller—could bring themselves to tell her. She painted incessantly nonetheless, and also wrote fervid, morbid poetry full of death and loss and desolation. She suffered from a recurring back ailment which, by the time she reached maturity, kept her in almost perpetual pain. But it was clear to many that more than this was wrong with Lizzie. She had visions, hallucinatory fantasies which may have been heightened by drugs prescribed for pain, but which certainly sprang from some deeper psychosis, and when Lizzie’s “bad periods” became impossible for Nell and Ben to manage, a trained nurse, Kate Tracy, had to be hired to handle her. Miss Tracy remained Lizzie’s companion for life, and the two women retired to a little cottage in Connecticut. Was Lizzie Cardozo perhaps too highly bred? She was descended on both sides from people who had married their close relatives. Both sets of grandparents had been marriages of cousins, as had at least two sets of her great-grandparents. Was some w
eak and fatal strain coming to the surface, threatening to fling apart permanently the closely knit fabric of Spanish Jewish families? Was Lizzie indeed “the end of the line”? Such thoughts must have darkened the mind of Ben Cardozo as he set out with “ecstatic consecration” to be a great lawyer and jurist.

  And so, at 803 Madison Avenue, where the family had moved after Albert Cardozo’s downfall, it was now just Miss Nell, eleven years older than her brother, and Ben. Their father had left a depleted estate of less than $100,000, and much of this was required to care for the afflicted Lizzie. Young Ben, working furiously in law offices downtown, became the breadwinner. Nell kept house for him. Darkly handsome, but small and frail of physique—he was described by one of his Columbia professors as “desperately serious”—Ben buried himself in study and work from early in the morning until late at night. At Columbia he had been too young for the social life—he was a sophomore before his voice began to change—and by the time he began to practice law he had lost all taste for it. He usually brought work home with him from the office and, after a quiet dinner with Nell, he would be back at his desk until after midnight. His girl cousins used to try to persuade him to accompany them to dances or to concerts or the theater. He always refused, using the press of work to do as an excuse. Sometimes he would break his routine with a bit of four-handed piano with Nellie of an evening, but that was all. He had, he once admitted, hesitated before deciding to go into law. He had considered studying art. But he hadn’t hesitated for long, because forces from the past stronger than he were driving him to expiate his father’s guilt.

  Benjamin Cardozo brought a particular and individualistic “style” with him to American justice. Though he was often called a “lawyer’s lawyer,” with a photographic memory that could cite cases, chapter and verse, without looking them up in the lawbooks, he was also an early champion of the little man against what often seemed the giant and uncaring mechanism of urban or corporate society. For instance, in an early—1916—automobile-safety case that came before the New York State court of appeals, a man named McPherson was suing an automobile company for injuries incurred when a new car he had bought turned out to have a defective wheel. The manufacturer had argued that it was not responsible, since it had not sold the car directly to McPherson, but to a dealer. There was no proof, the company argued, that it had known of the defect—though the car had collapsed when being driven at eight miles an hour. This defense had been upheld by the lower court.

  Not so, replied Judge Cardozo in his reversing opinion. He wrote: “Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger.” Cardozo also pointed out that the company obviously knew, when it supplied its dealers with cars, that they were for the ultimate sale to motorists, and that any claim to the contrary was silly and “inconsequential.” He added: “Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.”

  Cardozo was also one of the first American jurists to spell out clearly that what is a legal wrong is not necessarily a moral wrong, and that this fact must be considered in, for example, judging the crimes of the criminally insane. Cardozo was the kind of jurist who always looked for ways in which the laws, as written, were either too vague or too universal. There was the case of a cigar packer named Grieb who, under the instructions of his employer, was delivering a crate of cigars to a customer and stumbled on a staircase and fell. The accident proved fatal but, since the man had been delivering the crate after regular working hours, his employer had argued that his widow and children were not entitled to the customary death benefits under the Workmen’s Compensation Act. The man was not, his employer insisted, legally employed at nighttime. This position had been upheld in the lower court.

  But, said Judge Cardozo in his reversal:

  Grieb’S service, if it had been rendered during working hours, would have been incidental to his employment. To overturn this award, it is necessary to hold that the service ceased to be incidental because rendered after hours. That will never do. The law does not insist that an employee shall work with his eye upon the clock. Services rendered in a spirit of helpful loyalty, after closing time has come, have the same protection as the services of the drone or the laggard.… What Grieb then undertook to do with his employer’s approval was just as much a part of the business as if it had been done in the noonday sun.… If such a service is not incidental to the employment within the meaning of this statute, loyalty and helpfulness have earned a poor reward.

  For all the clarity of his thinking and the lucidity of his judgment, he remained an exceedingly modest man and often expressed a low opinion of himself. Once, accepting an honorary Doctor of Laws degree from a university, he described himself as “a mere plodding mediocrity.” When asked what he meant by this, he said: “I say plodding mediocrity, for a mere mediocrity cannot go far, but a plodding one can go quite a distance.” This was about as generous with himself as he permitted himself to be, though he once went so far as to describe himself as a “judicial evolutionist.” And he remained a solitary, moody man who entertained—with sister Nell acting as his hostess—only when it seemed to him an absolutely inescapable necessity, and who spent his leisure time reading poetry, studying law, or—for a rare diversion—studying Italian and playing a bit of gentlemanly golf.

  He spent a great deal of time answering letters. Each letter he received—even as a Supreme Court justice—was personally answered by him, and in longhand. He wrote a beautifully flowing script. One of his lifelong friends was Mrs. Lafayette Goldstone and, throughout his long correspondence with her over a period of more than twenty years, the wistful, self-deprecatory spirit of melancholy pervades. When he was appointed to the New York State court of appeals, in 1914, a certain amount of time spent in Albany was required, and he always treated these “exiles,” as he called them, as though Albany were Devil’s Island. Years later, after his appointment to the United States Supreme Court, he took an apartment in Washington, and his view of life in the capital was equally dismal. From his apartment at 2101 Connecticut Avenue he wrote in a characteristic vein to Mrs. Goldstone: “The letterhead tells the story. Alas! I am homesick for the old scenes and the old faces. The apartment is beautiful, but my heart is far away.” The following year, he wrote: “I feel more than ever an exile.… [New York], the great city—election is on, and I am condemned to take no part in it. ‘Hang yourself, brave Crillon,’ said Henry IV after a great victory had been gained. ‘Hang yourself, brave Crillon, we fought at Argeres, and you were not there.’”

  Of life in Washington, he wrote: “I call myself Gandhi, an ugly old saint—or at least a putative saint—to whom the faithful pay obeisance. They come here in great numbers, young and old, stupid and clever, some to stare and some to talk. Among the clever was Irwin Edman.… What a delightful youth he is!”

  His great idol was Oliver Wendell Holmes, whom he replaced on the Supreme Court bench, and after a visit with Holmes at Beverly, Massachusetts, Cardozo wrote: “Holmes is a genius and a saint, enough of the mischievous devil in him not to make the sainthood burdensome, but still, I think, a saint, and surely a genius.” Yet Cardozo’s own reticence and shyness hampered him during the visit and, writing again to Mrs. Goldstone, he said: “I wish I could talk freely like you. I’m fairly paralyzed when I visit strangers whom I admire and revere. But the old man sent word to me that he entreated me to visit him, so what could I do? My friend, Felix Frankfurter, who knows him well, drove me there from Boston, and back to my hotel. What an egocentric letter! I’m ashamed of it.…”


  When Holmes died, Cardozo wrote: “Holmes was great. His life work had been finished, but he remained a magnificent symbol. The world is poorer without him. I was the last person to visit him before he took to his bed.”

  Cardozo was capable of a certain gentle humor. Once, after a visit to New York’s Metropolitan Museum, he wrote: “Almost as one enters, one is greeted by two gigantic effigies of the Pharaoh of the Exodus, a gift of the Egyptian government, brought from the Temple at Luxor and wrought by some Egyptian sculptor about 1250 B.C. If the effigies could see, they would probably surmise that New York was the place to which the Jews, driven forth from the land of Egypt, had been guided by the wise old Moses.”

  But the note of sadness was forever creeping in. “May all happiness be yours in your bright and sunlit dwelling,” he wrote to Mrs. Goldstone. “I cling to you, says an Italian (I am airing my new learning) ‘come l’edera il muro,’ as the ivy to the wall. That is the way I feel about my friends as I watch the devastating years.” And, a little later, from his summer home in Rye: “I am glad you like me for myself and not for my supposed greatness which, alas, is non-existent.… Whatever greatness I have is the greatness of a drudge.”

  As he grew older, and more celebrated, people—particularly his female relatives—kept trying to make matches for him, but to no avail. He remained steadfastly a bachelor, and increasingly devoted to and dependent upon his sister Nell. They were like mother and son, she reminding him to take his umbrella if it looked like rain, telling him to bundle up warm in case of snow. It is likely that if he had ever wanted to marry, strong-willed Nell would not have let him. Her entire life revolved around him, and she was jealous every moment they were apart. His biographer George Hellman wrote: “He knew all that he meant to her—the jealousy as well as the depth of her affection. He made allowances for the jealousy; he was grateful for the affection.” To a cousin who once asked him why he denied himself the pleasures of a wife and children, Cardozo replied quickly, “I can never put Nell in second place!” And once, at a New York dinner party, a young woman seated next to the great jurist had the temerity to say to him, “Won’t you tell me, Judge Cardozo, whether you were ever in love?”