Evening Star Newspaper, February 7, 1937, Page 5

D.C.LAWYERS COOL 10 COURT CHANGES Poll Showing Only One Is for All Roosevelt’s Pro- posals. President Roosevelt's proposal for a radical revision of the country's judi- clal system—especially the possibility of an increase in the number of Su- preme Court judges—will receive little support from the members of the bar 1n the Nation's Capital. A poll of some outstanding lawyers revealed only one in favor of the Su- preme Court enlargement, while a number of prominent Democratic at- torneys refused to express any opinion on the recommendations. Some of the views expressed follow: George E. Hamilton, dean of Georgetown University Law School, and generally regarded as the “dea of the Washington legal profession: “The President’s message carries with 1t implications even beyond its radical expression. It bespeaks the desire and aim to center in the Executive all legis- lative and judicial control. It is con- trary to constitutional intent and pro- vision and is an unjustifiable assault upon the Supreme Court and its rec- ord of useful service to our country and its people.” Some Points Held Sound. James J. Hayden, dean of the Cath- olic University Law School: “The question raised by the proposal to limit the age of justices in active service is a serious one. It might be preferable to have an automatic re- tirement age of 70 or 72. I believe the principle of assigning justices to re- lieve congested dockets, requiring notice to the Government in suits be- tween private parties attacking Fed- eral statutes and requiring the expedit. ing of suits disputing the constitu- tionality of acts of Congress is sound. Appeals have been expedited to some extent, but more improvement is de- sirable.” John R. Fitzpatrick, dean of the Columbus University School of Law: “There is no legitimate objection to increasing the number of judges on | the Supreme Court bench, but if the real purpose of the proposal is to gecure validation of anticipated legis- lation it should be done through the | established channel of constitutional amendment.” Wheatley Favors All Proposals. Henry I. Quinn, president of the District Bar Association: “It is my personal view that the people are Justified in reaching the conclusion that notwithstanding the reference made to the need of speeding justice, that the real motive behind the plan is to place on the Supreme bench BY JOSEPH A. FOX. While a good part of the Capital de- voted yesterday to discussion of Pres- ident Roosevelt's Supreme Court pro- posal, some individuals with reason- ably fair memory and an inquisitive turn of mind began to wonder just how much grave space will be required to inter the “close advisers” of the President, whose demise was an- nounced officially Thursday. Although a metaphorical “finger” was put on Dr. Stanley High on that score by the White House, a six-week- old copy of Collier's Weekly created a reasonable doubt in the minds of some. Recent Article Cited. On December 26 the publication carried an article that reflected in marked degree the principles embodied Friday by the President in his court message. Of the author, George Creel, this was said in a foreword: “No man can write more authorita- tively of the President than George Creel. The two worked side by side as members of Woodrow Wilson's offi- cial family. Twice previously Mr. Creel has been privileged to announce the policies which would determine the administration’s plans. His famous article of March 11, 1933, set forth exactly the broad outlines of the orig- inal New Deal laws. His article of September 7, 1936, prophesied cor- rectly the policies written into the statute books during the last session of Congress. In this brilliant article Mr. Creel has had the opportunity to give comprehensive expression to the | | plans and purposes which animate | President Roosevelt as he faces his | second term in office.” | in other words, Mr. Creel, in the | accompanying article, was either 100 | per cent correct, or he was as far out ron a limb as the decorations of a | Christmas tree. Mr. Creei may not like the idea of premature death, even figuratively speaking, but he will not have to| | apologize for that forecast. | Discussing the pros and cons of | legislation enacted in this administra- | tion, and the Supreme Court attitude thereon, Creel took the stand that if | there was any controversy in branches of the Government it lay between the | court and Congress, rather than the | court and the Executive, inasmuch | as Congress adopted the laws. { Constitution Enters Article. | | Here, the Constitution crept into the | article, and the writer, pointedly as- | serting it contains “not one word that gives the Supreme Court any power to override the legislative branch,” | continues: TAak SUNDAY SiAR, Creel Article, Dec. 26, Foresaw Roosevelt Proposal on Court “Is Congress, therefore, as power- less as has been assumed? Many im- portant decisions yet remain to be handed down by the Supreme Court, notably with reference to the social security act and the Wagner labor act. What, for instance, if these and other New Deal laws are held unconstitu- tional, thereby afirming the right of the judicial branch to override the legislative branch, could Congress do? “There is one thing that it could do without question, and that is the passage of a statute taking away from all inferior courts the right to pass on questions of constitutionality, and directing them to certify all such cases to the Supreme Court of the United States, where it would be mandatory to put them on a preferred docket for the earliest possible deci- sion. And there is still another arrow in the congressional quiver. If the coming session witnesses the adoption of a housing bill, or a bill providing for maximum hours and minimum wages, or & bill relating to sweatshops and child labor, or the new Guffey coal bill, each of these acts could have a rider charging the Supreme Court to bear in mind that the law was en- acted pussuant to the constitutional provision vesting all legislative power in the Congress and explicitly author- izing it ‘to provide for the general welfare of the United States.’ Power Beyond Cavil. “If this proves ineffective, Congress can enlarge the Supreme Court, in- creasing the number of judges from 9 to 12 or 15. This power is be- yond cavil, for three changes have been made in the number of justices. We started out with six and have had as many as 10. “Regardless of the clash and fits | outcome, the President will continue | to suggest and urge those laws that seem demanded by the needs of the day and commanded by public opinion. The cry of ‘dictatorship’ leaves him unmoved save a passing contempt for | its silliness. Just as the constitution vests ‘all legislative power’ in Congress and ‘the judicial power’ in one Su- preme Court, so does it vest ‘executive power’ in the President, and in the enumeration of his functions and au- thorities there is specific mandate | that ‘he from time to time give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.’ " So, another question is when did the “advisers” start dying off, and still another: Is an adviser survived by a ghost? was issued by any, judge or court of the United States prohibiting any Federal official or agency from carry- ing out the provisions of a Federal during their elective terms, to any of | the new judgeships created under tre | President’s bill, but also whether they could be appointed in cases where | those who will be known to have law, an appeal from such order should | resignations of judges took place. | constitutional views favorable to the administration’s theories.” H. Winship Wheatley, former presi- dent of the Bar Association: “I favor all provisions of the plan. It was a wonderful message. It is an attempt lie directly to the Supreme Court. The | | bill was introduced by Senator Black | of Alabama. The Chief Justice and | two associate justices appeared as a committee from the court. The Chief The Constitution, in section 6 of its first article, says: “No Senator or Rep= | resentative shall, during the time for | which he was elected, be appointed | Justices said that “we regard the bill | to any civil office under the authority | of the United States, which shall | to liberalize the courts and adjust | as unnecessary.” He pointed out that | have been créated, or the emolus| them to modern conditions. In my | the Supreme Court now has the power | ments whereof shall have been in-| opinion the courts are too stiff. This is a step in the right direction.” | to bring before it by certiorari any | case of the sort described in the bill, | creased during such time.” | 1t none of the six membvers of the | Walter M. Bastian, former presi- | in advance of any decision by the ap- ' Supreme Court should retire or resign | dent of the Bar Association: “I am | pellate courts. Both Justice Bran- under the proposed law, the Presi-| certainly against the proposed in- | deis and Justice Van Devanter con- | d_em would be authorized to appoint | crease in the number of judges. There curred in the views expressed by the | 5iX new members of the court. Ob- | is no necessity for it. The courts are pretty well up in their work.” Paul E. Lesh, practicing attorney: *No lawyer can question the soundness of the proposition that the superan nuated do not recognize their own dis: abilities, nor can any one question that the courts are overloaded with work, trying to cope with increased lit- igation without increased personnel. But to enact the statute as proposed at this time would be to attempt to re- buke a co-ordinate branch of the Gov- ernment for doing what it considers its duty. I do not believe the people have more faith in Congress than they have in the Supreme Court. I do not be- lieve the people thought that was the issue they were deciding in the recent election. The people indorsed a result, s trend toward renewed prosperity, without deciding whether it was brought about by what Congress had done or what the courts had done. I do not believe the recent election was any mandate from the people to at- tempt to rebuke the Supreme Court, and what good there is in the proposal 1s beclouded by that issue. I hope the effort will fail.” Leon Tobriner, practicing attorney: “I think it would be entirely contrary to the purpose of the framers of the Constitution and the Federal judiciary act. It would seem to me that there is an effort to pack the Supreme Court, and with the number of judges pro- posed it would be an unwieldy ar- rangement. Every lawyer in the coun- try should make every effort to defeat such a plan as the President proposes.” Court (Continued Prom First Page.) = retirement of any member of the court. “There are some features of the President’s bill that have merit. In my opinion, however, there is no need for such a large increase in the num- ber of judges in the circuit and district courts. As a matter of fact, there are in effect some of the suggestions carried in the President’s recommen- dations. Speaking generally, I do not see any necessity for this legislation at this time.” Senator J. Hamilton Lewis, Demo- erat of Illinois, in Chicago said he believed consideration by the public and Congress would suggest “just com- promise legislation” on the President’s Judiciary reorganization recommenda- tions. “There need be no fear of radical or revolutionary result put on the peo- ple.” he said in a statement. “I fear the object of the bill is not understood. Under the system sug- gested the Supreme Court can be di- vided into divisions, five judges in each of three divisions, before which all the appeals in ordinary cases of patents, taxes, customs, tariff damages and eriminal law’can be hastily heard in- stead of being so long held over for years.” Would Talk to Justices. Several members of the Senate Judiciary Committee suggested yester- day the advisability of calling before the committee the Chief Justice and the associate justices of the Supreme Court for a thorough discussion of the President’s bill. This was the attitude of Senator Burke of Nebraska, who is reported to be opposed to some features of the bill, and of Senator Van Nuys of Indiana, both Democrats. Members of the Supreme Court, in- cluding the Chief Justice and Asso- ciate Justices Brandeis and Van De- vanter, appeared before the Senate Judiciary Committee in March, 1935, | does not mean that they will remain | ‘are inclined to await, however, the | the attitude of many of the: Demo- | are today inclined to oppose the Presi- Chief Justice. Propriety of Request Questioned. | The President's bill deals directly with the personnel of the Supreme | Court, as well as with proposals to | provide for an immediate appeal to the { Supreme Court in cases involving the | constitutionality of laws of Congress, | | and for the appearance of representa- | | tives of the Government in any litiga- | | tion between private parties in which | the constitutionality of a law is chal- lenged. For that reason some of the | | Senators yesterday seemed to question | the propriety of inviting the justices of the highest court to appear and | testify. The matter will be settled when the Judiciary Committee gets down to work on the President’s bill. Republican members of the Senate | and House, generally speaking, are | withholding attacks upon the Presi- | dent’s proposal with regard to the‘ judiciary. They do not wish, nor do | they consider it proper, that the issue should be made a partisan affair. This silent on the subject for long. They‘ reaction of the country on the Presi- dent's plan to increase the member- ship of the Supreme Court, and also crats. A considerable number of Democrats dent in the matter of increasing the membership of the Supreme Court. Indeed, it was said that there may well be enough of them to prevent the passage of the bill if it continues to include an increase in the Supreme Court. These Democrats are willing to go along with the President on other proposals in his message. The indications now are that unless there is a great drive by the White House to put through the bill as an adminis- trative measure of the highest import, it will have tough sledding. Congress “Eligibles” Hit. The question was raised yesterday not only whether members of the present Congress could be appointed, Headquarters for MIRACULOUS and SCAPULAR MEDALS ROSARIES CROSSES [ ] And All Other Religious Articles TRIBBY’S CASH JEWELERS 617 Tth St. N. W 615 15th St. N. W when hearings were held on a bill di- recting that when restraining order ’ BUY FOR CASH AND SAYE ’ viously no Senator or Representative ' would be eligible for appointment. If,| after the appointment of the six new members, an old member should re- tire, there is a question whether a! member of Congress could be ap- pointed to fill that vacancy. For it is/ obvious that the membership of the court would have been increased be- yond the present statutory number, and any place on the court in ex- cess of nine would be a new office. | The same thing might apply with | regard to appointments to thc circuit | and district courts. | Members of Congress continued yes- | terday to voice their opinions of the| President’s bill and particularly of his plan to increase the membership of | the Supreme Court. Rerresentative Snell of New York, minority leader,' took another shot at the measure. He said, “The Prisident has Congress | groveling at his feet now. He will| have complete power when this bill has passed.” | McCarran Favors Plan. Senator McCarran of Nevada, Dem- | ocratic member of the Judic..ry Com= mittee, said he favored the Presi- GENUINE AMERICAN RADIATOR Immediate in. Iation! Don’t tate. Be prepared for any weath Estimates at your s Complete, Installed in 6 Rooms as Low as . . . Price includes a ge: e “RED FLA: WASHINGTON, dent’s plan {: general. He believed, he said, that an increase in the size of the Supreme Court would be helpful. “There would be no more 5-to-4 de- cisions of the court,” he said. And then he added, with a smile,” there might be some 7-to-8 decisions, how- ever.” Senator Prazier of North Dakota, Progressive Republican, said he did not believe in increasing the member- ship of the Supreme Court. He fa- vored, he said, a law limiting the Jurisdiction of th: court. “If the court declined to be guided by the law,” he said, “the House could then bring impeachment proceedings.” Senator Frederick Steiwer of Ore- gon, keynoter of the 1936 Republican convention, who arrived tonight in Miami from Havana on his way to Washington after cutting short a West Indies cruise, said “There is little enough now in Washington that resembles a parlimentary form of Government without going into that,” when questioned on Supreme Court ¢hanges. Senator Steiwer, according to the Associated Press, said the proposal caused him to end his Caribbean va- cation. He would not discuss possible Republican strategy for opposing Mr. Roosevelt's recommendation. Senator Townsend of Delaware, Re- publican, said: “There is a method of amending the Constitution provided in the Constitution itself. I am for it.” Senator Duffy of Wisconsin, Demo- crat, indicated he was willing to go along with the President in most of his recommendations, but that he had reservations with regard to in- creasing the size of the Supreme Court. He pointed out that the court acts “en bloc” on cases before it, and that an increase would not neces- sarily mean greater speed. Senator Davis of Pennsylvania, Re- publican, said that the matter pre- sented to Congress by the resident was of such great importance that he | wanted time to consider it before ass- ing a final opinion. He said that he thought the members of the Supreme Court should be heard on the Presi- dent’s bill, and also the legal officers of the Government and the bar, be- fore any decision is reached. “I do not wish to believe,” said Senator Davis, “as some say, tha’ the President’s suggestions are occasioned by his desire to pack the court. Such a procedure would bring only a tem- porary benefit to the party now in @ Nothing to Pay in Febniary @ Nothing to Pay in March @ Nothing to Pay in April . D. C., FEBRUARY 7, power. In the course of time, other Ppolitical groups would rise to take the measure of any program which might now be suggested ir a partisan spirit. None of us wish to see any change wrought in our Government which is dictated merely in a vin- dictive spirit.” In Tucson, Ariz, Senator John H. Bankhead, Democrat, of Alabama, re- covering from illness, expressed sur= prise at President Roosevelt's request, the Associated Press reported. He said his physicians had ordered him “to take a complete physical and mental rest,” and declined further comment. House Battle Forecast. Expressions by some members of the House Judiciary Committee fore- shadowed a bitter battle when the proposal comes up on Tuesday. Representative Miller, Democrat, of Arkansas, said the proposals were “novel” and “no doubt will command much support,” but expressed doubt as to their advisability. “The Congress has a well-defined duty to perform,” Miller said, ‘and should not lend its assistance at any time to a nullification of the Consti- tution by indirection.” On the other hand, Representative Ramsay, Democrat, of West Virginia declared he thought it time “to bring to the attention of the people the need of some judicial reform.” Representative Robison, Republican, of Kentucky expressed fear the Presi- dent’s proposal would make a “rubber stamp out of the Supreme Court.” Outside Congress, however, the Pres- ident drew support from William Green, preSident of the American Fed- eration of Labor. Asked for comment on the admin~ istration bill, Green said: “It strikes me as a practical method through which we can meet changed, modern economic conditions.” The President’s plan, generally re- | garded in Congress as his answer to the Supreme Court’s invalidation of | N. R. A. and A, A, A, was a prime | | topic in foreign capitals as well as throughout this country, the Associ- | ated Press reported. | In London liberals applauded and | conservatives were mostly critical. | Comment in the German press gen- | erally was favorable, the President be- | ing pictured as a champion of strong leadership against “outworn” methods of government. Paris newspapers gave great promi- nence to the proposal. Le Temps said it demonstrated the President's deter- mination to carry out his New Deal 1937—PART ONE. program, but would weaken “the moral authority” of the Supreme Court. In- transigeant headlined: “Roosevelt | ‘Wars on Supreme Court.” NINE LEADERS GIVE VIEWS. Baltimore Sun Presents Statements on Court Proposals. BALTIMORE, February 6 (#).— The Baltimore Sun, in a copyright symposium, today presented the views of nine national leaders on the change in the Federal judicial system pro- posed by President Roosevelt. ‘The leaders and extracts from their views include: Raymond Moley—*“If I were a mem- ber of Congress I would find it hard + + + to find reasons for supporting the President’s proposal. . . . This comes perilously near to a proposal to abandon constitutional govern- ment.” Henry L. Stimson, former Secretary of State—“The divergence of consti- tutional opinion . . . evidenced among its (the Supreme Court's) justices, is no more than is representative upon such questions among our entire thoughtful citizenship . . . Even if the President’s proposal were made at & normal time and under normal conditions, I should not favor it.” “Rubber-Stamping” Hit. George Wharton Pepper, former Senator from Pennsylvania — “The Government has consistently taxed ingenuity . . . to evade court tests and to slow down the process which the President now wishes to hasten « .. he wants a court that will rubber-~ stamp executive and legislative ac- JUSTICES SHOWN AS INDEPENDENT History Discloses Judges Frequently Fail to Uphold Party Policies. By the Associated Press. History discloses that Presidents {frequently cannot depend on their ap- pointees to the Supreme Court to up- hold the policies of the party to which they belong. On the present court, two Demo- crats—McReynolds and Butler—have ly against Roosevelt administration acts. On the other hand, Justice Stone, a Republican named by President Cool- idge, has been among the stanchest defenders of the administration. An illustration frequently quoted to show the independence of the judiciary P. Chase in 1870 delivered the opinion which held partially unconstitutional had supported while Secretary of the Treasury in Lincoln’s cabinet. The ruling was reversed later when two new justices were appointed, but the later decision. tion.” Charles E. Clarke, dean of the Yale University Law School: “Many of his suggestions are clearly desirable. * * * | These proposals do raise political is- sues, but can hardly be avoided in a democracy.” Nathan L. Miller, former Governor New York: “The covert attack on the | court is & foul blow struck at a tri- | bunal which cannot defend itself. *** No such radical and revolutionary 11- | novation has been proposed by re- | sponsible autliorities in the 150 years of our history.” Public Discussion Beneficial. Morris L. Ernst: “This proposal has only one merit, it throws the entire subject into the arena of public de- bate. * * * Would this attack be con- ceivable if legislation had been up- Another well-known example was been among those who voted frequent- | is the fact that Chief Justice Salmon | the legal tender legislation that he | Chase was among the dissenters to | | land, Oreg. * A—S the apointment of William Johnson, 32-year-old South Carolina Democrat by Jeffersorf, in 1804, during the con- flict between the Executive and Chief Justice John Marshall as to whether the States or Federal Government should be supreme. Johnson was the first man named by Jefferson to the court, which had been controlled by Federalists since its formation. Yet four years later, while serving on the Circuit Court, as jus- tices were required to do in those days, he became the first jurist to interfere with Jefferson's embargo policy. He declared that the President had no right to instruct collectors of cuse toms to detain certain vessels, bee cause the law specificallv said they should be stopped only if the cole lector thought the law was to be vioe lated. “The officers of our Government, from the highest to the lowest, are equally subject to legal restraint,” the 36-year-old justice said. During his long service on the bench Chief Justice Marshall had the support of justiees ..ppointed by Jef= ferson and Madison in his opinions enlarging the powers of the National Government—a doctrine opposed by, the Democratic executivcs. Nominees of Jackson voted against some of his policies and the fugitive slave law was unanimot 'y sustained by anti-slavery Whig judges and by pro-slavery Democrats. In one case Justices McReynolds and Brandeis, appointed to the court by President Wilson, voted against that executive in litigation involving his removal of a postmaster at Porte McReynolds s fresh from the Wilson cabinet, where he had been Attorney General. Senator: “I am convinced that it (the proposal) is unnecessary and unwise. Any suspicion that the court is being packed * * * will seriously impair the respect and admiration which the court enjoys today.” | for President in 1936: “Of all ways 0 deal with the constitutional issue, this Norman Thomas, Socialist candidate | is least satisfactory, although probadly | politically, immediately the clever- est. * * * History shows that judges do not stay picked.” Earl Browder, Communist candidate for President in 1936: “The first im- ‘ pression of the proposals is that they are typical middle-of-the-road meas- | | ures such as we have learned to ex- held, even though the judges were 10 | pect from the President. * * * They | years older than God?” David A. Reed, former United States | must be supported by labor, however unsatisfactory they may be.” Months FREE Use of the World Famous OIL BURNER Here is the most amazing offer ever made in oil burner history! SEVEN MONTHS use of the famous ABC Qil Burner in your home—ABSOLUTELY FREE OF CHARGE. 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