Two days before Christmas in 1890, within hours of federal judge Henry B. Brown's somewhat surprising nomination to the U.S. Supreme Court, reporters at the Capitol were scribbling down the details of an electrifying story, told with relish and pride by Brown's neighbor and fellow Republican, Sen. James McMillan of Michigan.
The judge had "killed his man," the senator said. Not in a duel or at war, but in the middle the night in Detroit, when a masked burglar entered the judge's bedroom, asking to be shown "all the hiding places" for money and jewelry.
When the burglar momentarily dropped his guard, McMillan told the rapt reporters, the judge seized the moment. Reaching under his pillow for his revolver, prudently placed there after a recent spate of robberies in their wealthy neighborhood, Brown "shot the man through the head," the New York Sun's correspondent wrote. The burglar lived long enough to be captured and convicted, the Sun said, later dying in prison.
Or, as the Washington Evening Star reported after hearing McMillan's account, the judge and the intruder had stood "face to face" on the stairs, firing at each other "until their revolvers were empty." The thief, bleeding but still on his feet, fled into the darkness, leaving drops of blood on the floorboards. "Later the man was captured," the Star's version said, "but was so badly wounded that he lived only a short time." Too short to make it to a trial, presumably, let alone to a conviction and prison term.
What was McMillan's strategy in telling this riveting tale? Was this a preemptive strike, orchestrated by President Benjamin Harrison's administration to prevent opposition Democrats from discovering a corpse in Brown's Detroit closet? Would the Senate Judiciary Committee, with its five Republicans and four Democrats, be tied up for weeks, seeking police records and testimony? Or would the committee members leave it to Judge Brown, 54 years old and described by his colleagues as the least flamboyant of men, to testify about the night he had "killed his man"?
There was no strategy. There was no building opposition. There was no list of witnesses, because there were no hearings. There was no compilation of documents about the shooting, or about Brown's 15 years on the federal bench, or about his seven years as a federal prosecutor. The Justice Department, replying to the committee chairman's polite request for any files on Brown, said in a two-line note that it had none.
Was this special treatment for a favored nominee by members of his own party? Hardly. In that era, and every era before 1890, no Supreme Court nominee had ever appeared in public to testify. The Senate Judiciary Committee, created in 1816, "considered these nominations behind closed doors," the Congressional Research Service said recently in a report. Before 1870, about one-third of the nominations weren't even sent to the Judiciary Committee for review, the CRS study shows.
The first public hearing, held in 1916 for Boston lawyer Louis D. Brandeis, set no precedent. A streak of anti-Semitism surfaced during the extraordinarily long inquiry into Brandeis' suitability, including 19 days of testimony. Brandeis, labeled a "radical" by his opponents, did not appear. He was confirmed after four months of acrimony. The next public hearing didn't take place for another 15 years. It was a one-day affair that led to a rejection.
The 1930s and 1940s saw a trend toward open hearings, but they didn't become a regular fixture until the Eisenhower administration, with the appointments of John M. Harlan II in 1955 and William J. Brennan in 1957. By 1981, public hearings weren't just the norm; they were televised. The nation, along with the committee, had a front-row seat as the first woman named to the court, Sandra Day O'Connor, took questions under the bright lights.
The committee's expansion changed the dynamic, too. Today's Senate Judiciary Committee has 21 members to ask about Judge Brett Kavanaugh, several dozen lawyers to collect and sift information, and a website. The committee of 1890, with its nine members (from a Senate of 84), had a clerk, an assistant clerk and a messenger.
On Christmas Eve in 1890, the messenger delivered the committee's form letters on Brown to McMillan and Michigan's senior senator, Francis B. Stockbridge. They replied promptly. "Judge Brown is a gentleman of great legal ability, and high character, and in my opinion, no better selection could have been made," Stockbridge scrawled in the tight space at the bottom of the form letter.
That was the extent of Stockbridge's answer. He offered no "information" on Brown's career, and no specifics on his "great legal ability." Perhaps he felt it was unnecessary. Brown had a reputation as one of the country's foremost experts on admiralty law - cases involving maritime matters - and the newspapers were describing him as an able jurist with a well-regarded record, although largely unknown outside the legal world.
McMillan's reply was no more illuminating. He wrote: "I have known Judge Brown intimately for twenty years. He is an upright, pure man in every way and well qualified." McMillan chose not to regale the committee with his burglary story. Nor did he mention that he had preferred another Michigan man for the nomination.
The day after Christmas, a Friday, the Chicago Tribune's Washington correspondent corralled a Judiciary Committee member for a chat about Brown's chances. The senator, who wasn't identified in the Tribune's account, said he knew of no reason Brown should be worried. But, the senator cautioned, "it is rather early yet . . . We sometimes think that nothing can be said against a nominee, and all of a sudden, charges from the right of him and charges from the left of him are sprung upon the committee."
The reporter, realizing that the senator seemed unaware of the burglary story, said it had "already been asserted that Judge Brown had killed his man." The senator reacted with surprise. "Is that a fact?" he said. "Then I suppose that we may say that the thing has commenced."
A few newspapers bandied about the word "manslaughter," but many publications chose flattering characterizations. Brown was a "hero." An "agent of justice." A "man of iron nerve." The New York Tribune said his bravery proved that he would have no trouble sticking by his convictions on the court.
In Detroit, Brown was mystified at how the story had become so embroidered. Yes, he told the few reporters who had sought him out, an armed masked man had shown up in his bedroom in May 1885, and yes, he had fired at the burglar.
Had he "killed his man"? Unknown, but unlikely. There was no "trail of blood," Brown clarified. No suspect captured a short time later. No proof that his bullets had found their mark, although several had been found in the house's walls and ceiling. "All the papers contain graphic accounts of Judge Brown's affray with a burglar," the Detroit Free Press wrote with disdain. "This story, as told, is rather more picturesque than it was ever told at home."
Had anyone thought to look, the Free Press stories from 1885 offered a more reliable - and more logical - account of the burglaries and the police manhunt, which eventually led to the conviction of several men. One had an old gunshot wound in his left leg. None owned up to breaking into Brown's house.
Would the Judiciary Committee ask its own questions about the dramatic encounter? It would not. On Monday, Dec. 29, 1890, in its first meeting since the nomination six days earlier, the committee acted with all due speed. Brown's name went directly to the floor. That same afternoon, by acclamation, the Senate approved him as the nation's 52nd justice.
Luxenberg, a Post associate editor, researched the nomination of Justice Henry B. Brown for his forthcoming book, "Separate: The Story of Plessy v. Ferguson, and America's Journey from Slavery to Segregation." In 1896, Brown wrote the majority decision in the Plessy case, upholding a Louisiana law mandating "equal but separate accommodations" for white and black railroad passengers in the state.