"According to Henry Morgenthau, who had just stepped down as American ambassador to Turkey, he and Brandeis met on 1 April 1916 to discuss the question of transferring additional sums to the Palestinian colonies. The two men's schedules had been so tight that the only time and place that gave them some time to talk was while they just changed trains in New London, Connecticut. Morgenthau told Brandeis that he thought the Senate would confirm him [for the US Supreme Court--DT], but that immediately after taking his seat, he should declare himself a candidate against Henry Cabot Lodge for the US Senate from Massachusetts Morgenthau believed that Brandeis could easily defeat Lodge and, in doing so, would help carry the state for Wilson in the fall election.
"Brandeis turned Morgenthau's suggestion down. 'Brandeis was obviously afraid to act on my recommendation,' Morgenthau later wrote. He said it would be 'undignified' for him to run for office while holding a seat on the Supreme Bench. Morgenthau believed that the Senate would have been a better place for Brandeis to have exercised his great abilities than the 'quasi-cloistered obscurity of the Supreme Court.'" Melvin I. Urofsky, *Louis D. Brandeis: A Life* (New York: Pantheon Books 2009), p. 456.
https://books.google.com/books?id=NpdWBsZ7OTgC&pg=PA456
What if Brandeis had taken Morgenthau's advice and had run for the Senate? Some thoughts:
(1) I think it might provoke an anti-Brandeis backlash if after the Senate had gone through months of a bitter confirmation struggle, and Brandeis had finally won, he would in effect announce that he wasn't interested in the job after all. So perhaps our POD should be Brandeis deciding on the Senate race *before* Wilson in OTL nominated him for the Court.
(2) Could Brandeis get the Democratic nomination for the Senate, given that other Democrats, especially Boston's John "Honey Fitz" Fitzgerald (JFK's grandfather) were interested in the seat? But perhaps Honey Fitz could be persuaded to run for Governor instead?
(3) Even if nominated for the Senate, I cannot see Brandeis *easily* defeating Lodge. In OTL, Lodge defeated Honey Fitz by a substantial though not overwhelming margin--51.68%-45.31%.
http://www.ourcampaigns.com/RaceDetail.html?RaceID=267998 And Honey Fitz no doubt did better with the Boston Irish than Brandeis would have done. (I don't think this is primarily because of anti-Semitism; they probably would not have found a Protestant Brandeis very congenial either.) OTOH, a great many reform-minded middle-class voters throughout the Commonwealth--who thought that Lodge was a bit too conservative but distrusted Honey Fitz as a Boston machine pol--might be drawn to Brandeis. And because of Brandeis's reputation as a progressive, he would probably have gotten some of the 3.01% that in OTL went to the Socialist candidate. So I certainly wouldn't rule out Brandeis winning. After all, Woodrow Wilson came close to carrying traditionally Republican Massachusetts in 1916, despite widespread Irish-Catholic dissatisfaction with his alleged pro-British bias in the World War, his support of Philippine independence (opposed by the Church), and his Mexican policies. Francis Russell thought that "a Yankee Democrat could probably have defeated Lodge" in 1916.
http://www.americanheritage.com/content/honey-fitz?page=show The Jewish Brandeis wasn't exactly a Yankee but he would have had more appeal to them than Honey Fitz did. And he didn't have an Elizabeth "Toodles" Ryan as a campaign burden--whether or not there was really anything improper going on between Honey Fitz and Toodles is besides the point. [1]
(4) If Brandeis was elected, he might be re-elected indefinitely. 1922 was a good year for the Democrats (Lodge came very close to being defeated in OTL that year), as was 1934. And 1928 was a good year for them *in Massachusetts* because of Al Smith's candidacy, however disastrous it was for them in most of the rest of the nation. So Brandeis might stay in the Senate until his health would presumably force him to retire in 1940.
(5) What kind of senator would Brandeis be? A progressive, of course, but the kind of progressive who was sometimes suspicious of big government as well as big business--and *especially* suspicious of big government cooperating with big business. (If he were around today, he would no doubt be arguing for the breakup of big banks, so that no bank would be "too big to fail.") He disliked some early New Deal programs such as the NRA and the AAA (though he voted to sustain the constitutionality of the latter [2]) which he thought helped to foster monopoly. OTOH, he was much more favorable toward the so-called "Second New Deal": the Wagner Act, hours and wages regulation, etc. He was a strong advocate of public works as a means of combating unemployment. On foreign policy, he would be for the League with mild reservations, but simply the fact that Lodge would be out of the Senate would do more for the League than anything Brandeis would do in support of it. Brandeis would of course also be a strong supporter of Zionism in the Senate.
(6) Brandeis's views were quite similar to those of his old friend Robert La Follette, Sr. In OTL in 1924, Brandeis turned down La Follette's request that he resign from the Court to become La Follette's running mate. In 1924, might he consent to such a nomination, which would not require his leaving the Senate (since he would not be up for re-election until 1928)?
(7) In 1920 in OTL Brandeis seriously considered resigning from the Court to head the World Zionist Organization. The frustrations of the League fight--even with Lodge gone Wilson might not agree to the reservations necessary to secure ratification--might conceivably tip the balance in favor of resignation if he were in the Senate. But I doubt it. As Urofsky (p. 536) notes, "Brandeis was torn between the opportunities he saw to create an ideal society in Palestine and the view he had argued for six years that one could be both a good Zionist and a good American. To leave the court that he called 'the highest tribunal in the world' would give the lie to all that he had said; it would prove that Zionists pledged their primary allegiance not to the United States but to the movement."
Also, "Brandeis reached his final decision after a meeting with Bernard Rosenblatt, a young American lawyer whom Brandies liked and had sent on a fact-finding mission to Palestine. At breakfast on 4 July, Rosenblatt told the justice (a man thirty years his senior whom he revered) that he doubted if Brandeis had the temperament to lead the movement. 'As the first Jewish member of the United States Supreme Court you can be a very important figure for us,' Rosenblatt declared. 'If you become the leader of Zionism, you'll have to go to Palestine; you'll have to meet opposition, difficulties, disputes with [Menahchem] Ussichkin, and I wouldn't know whether it wouldn't be a means of breaking you.' The Zionist methods that Rosenblatt had seen while in Palestine made no sense to the efficiency and rationality of American business and administrative practices and would prove too frustrating to Brandeis. The justice had more than a taste of that frustration at the *Jahreskonferenz*..." (Ibid.)
Rosenblatt's reasoning would probably be equally persuasive to Brandeis if he were in the Senate.
(8) I cannot agree with Morgenthau that Brandeis would have exercised his abilities more effectively in the Senate than on the Court. In either body, he would be part of an outnumbered progressive minority in the 1920's. It is true that after 1932 Brandeis as a senator could have provided an interesting perspective largely sympathetic to the New Deal but critical of some aspects of it. But on the whole I cannot see any speech made by Brandeis in the Senate being half as remembered as some of his opinions from the "semi-cloistered obscurity of the Supreme Court"--above all, his great dissent in *Olmstead v. United States*
https://supreme.justia.com/cases/federal/us/277/438/case.html and his equally famous concurring opinion in *Whitney v. California*.
https://supreme.justia.com/cases/federal/us/274/357/case.html
(9) Of course it matters who Wilson appoints to the Court instead of Brandeis. In OTL he had mistakenly thought McReynolds was a progressive (because of his enthusiasm in antitrust prosecution) and appointed him to the Court. It is just conceivable that in this ATL he makes the same mistake *again* and appoints John W. Davis (who in 1916 had a fairly progressive reputation) to the Court...
[1] See my "'Toodles' Ryan and the League of Nations (Honey Fitz beats Curley in 1914--and Lodge in 1916)" at
https://groups.google.com/d/msg/soc.history.what-if/ok0J_SHjbo4/W6drM06ZObMJ
[2] "Although concerned about the plight of the rural poor, Brandeis worried about the growing size of government agencies, and he expressed his doubts to Tugwell, Henry Wallace, and Gardner Jackson, who served in the AAA as legal counselor of consumer affairs. Instead of reducing output through government-imposed quotas, the government, he thought, should buy up land and then lease it to farmers who would work it in smallholldings. The program paid no attention to sharecroppers, tenants, and migrant workers. Brandeis warned that the AAA would speed up the trend toward fewer farmers owning larger and larger spreads, thus increasing monopoly and absentee ownership." Urofsky, p. 706. But in the end Brandeis did vote with Cardozo and Stone to sustain the AAA in *United States v. Butler.*
https://supreme.justia.com/cases/federal/us/297/1/case.html