Evening Star Newspaper, March 9, 1937, Page 26

PRECEDENT PERIL ONCOURT SCOUTED Observer Sees Plan as Unique " Solution to Unique Crisis. BY CHARLES S. COLLIER, George Washington University. When one has reviewed the several possible solutions for the acute con- flict between law and politics that led to the President’s much-debated pro- posal for judicial “reform,” he may be willing to admit the need of some radical corrective effort in this field on the part of the effective political Jeadership of the country, and yet, he may be disposed most seriously to question the method and manner of the President’s action. He may ask himself whether the President’s plan, though perhaps defensible in theory, will not actually do more harm than good. Will it not lead actually to “packing the courts” with unfit Judges? WIill it not create a harm- ful precedent that will serve the pur- poses of the enemies of democracy and real liberty at some future time? ‘The catch-phrase, “packing the eourt,” is constantly used in the dis- cussion of the President’s proposal. This phrase seems primarily a device to paralyze thinking. It has an emo- tional connotation which renders it difficult for any one to use his free judgment in answering, and it is used constantly as a signal to abandon in- tellectual reflection on the whole sub- ject and turn one's mind over to one's ‘emotions. The truth is that the phrase “pack- ing the court” is highly ambiguous. Taken in one sense, it calls up the thought of a disgruntled litigant in some way obtaining judges who favor his side of & case by some abuse in pelecting the members of the tribunal, or perhaps through bribery or cor- ruption. It is naturally thought that such a court cannot render a just or legal judgment. But there is no ground whatever for the assumption that the President will “pack the court” in this sense. The newspaper statements to the effect that the Presi- dent will appoint “his own hench- men,” and will exact from them agree- ments of some sort to vote in favor of New Deal measures are merely loose defamatory statements that have no justification whatever, neither in any known facts, nor in the probabilities of the case. To Select Sympathizers, However. , ‘There is another meaning, however, for the phrase “packing the cou-t, ‘which has greater plausibility. It is true enough that the President will attempt to pick for the new judgeships men who are in sympathy with his general social and political point of ~iew. He is likely to pick lawvers| with what is called & liberal or pro- gressive outlook, rather than hard- boiled practitioners of the strictly in- dividualistic school. But this sort of choosing among the different types of men found in the legal profession has always been characteristic of presi- dential appointments, and can hardly be avoided. When President Lincoln | had the opportunity to appoint m‘ll judges in the Civil War period, he | naturally selected men who were in! sympathy with the objectives of his administration, rather than those of | the previous administration of Presi- dent Buchanan. Though one or two ©of his nominees were Democrats, or had been at times affiliated with the Democratic party, they were all “dyed-in-the-wool” supporters of the President and his policies. Similarly, when President Harding had an op- portunity to appoint four justices in the years 1921-23, he chose men who can fairly be described as outstanding leaders in the conservative school of opinion, such as Chief Justice Taft and Justice Sutherland. President Wilson, in 1916, deliberately under- took to liberalize the court to a cer- tain extent by the appointment of Justice Brandeis, who was then al- ready well known and widely criti- cized for his liberal views, and Justice Clarke, a liberal and humanitarian leader in his previous career. Presi- dent. Jackson at an earlier period un- toubtedly sought, by the appointment 1o the court of political assoclates of his own, like Roger B. Taney, to alter the ultra conservative and nationalis- lawyers. It is assumed that they will be practically pledged to vote for all New Deal as constitutionally measures binding, and it is also suggested by in- nuendo that they will be absolutely under the personal direction of the President with reference to all that they do. These inferences are wholly without the slightest factual warrant. ‘The President is not likely to appoint men of small stature to the court. His nominees will have to be approved by the Senate, and there will be the op- portunity for adverse public opinion to bring up all appropriate criticisms with _regard to their qualifications. The President has his own historical reputation to consider. There is noth- ing in his record to indicate that he would appoint mere “henchmer” to high positions. The members of his cabinet, and the important officials whom he has appointed, such as the members of the Securities Exchange Commission, the members of the Com- munications Commission, or the mem- bers of the Social Security Lommis- sion, have had just as much inde- pendence and autonomy as other pres- idential appointees have had in other administrations. No one has even claimed that persons appointed hither- to by President Roosevelt to positions in the United States District Courts, or in the Courts of Appeal hav: been under his personal influence, or tbat the fact of their appointment by Pres- ident Roosevelt has in any way dero- gated from their judicial independence and efficiency. Different Decisions No Certainty. Of course, it is quite possible that Mr. Roosevelt’s appointments might change the complexion of the courts sufficiently to bring about a different course of decision with reference to some of the New Deal measures. This is by no means a certainty. There are too many illustrations .from our recent history that show that no Pres- ident can be sure that & man whom he has appointed to the Supreme Court will vote in accordance with the President’s own views. The ex- ample of the conservative Justice McReynolds, who was appointed by President Wilson, and who has fought repeatedly against legislation spon- sored by Wilson, is a case in Again, it may be said that the lib- eralism of Justice Stone with ref- erence to the New Deal program would have surprised the conservative Presi- dent Coolidge who appointed him, and, on the other hand, the attitude of Jus- tice Roberts, who has defeated many of the New Deal measures by his er- ratic marginal votes, doubtless has been a great disappointment to many of the Senators who voted upon his nomination after rejecting President Hoover's first choice, Circuit Judge Parker. It may, however, be cheerfully ad- mitted that there is quite likely to be s marked change in the general climate of the court’s opinions as the result of so large a number of new appointments by President Roosevelt as are contemplated by the legisiation under discussion. But this general modification of the judicial climate is the very thing to be desired in the present crisis in order to prevent a complete break in the relationship of the judiciary to the policy-making branches of the Government. Most conservatives do not realize how far to the right of the general mass of public opinion the majority ADVERTISEMENT. DRINK TEA DAILY for NEW VITALITY, DOCTOR TOLD HER “Socialengage- mentsand run- ning my house- hold drained my vitality,” | says Mrs.| Chas. C. Kent. | “Mydoctor told | ! me, ‘Drink tea | | every day.| I Now I feel like | | a new woman. Tea sent my vitality | | up and kept it up! After the busiest ! day I feel ready for anything. Tea | keeps away ‘winter let-down.’ It lets | me sleep soundly too!” e | | PHYSICIANS know tea is the | “world’s most vitalizing beverage” | ~its effect is lasting. SCIENTISTS | !say your “VITALITY CURVE” of the justices of the Supreme Court have moved. The truth is that they have not been stationary in their po- sitions in constitutional interpretation, but have actually moved very far and very rapidly in what may be called the conservative direction. The great need of the hour is that a just reconciliation be effected between the views of the judges and those of the dominant politicians, and the recon- ciliation canvot be brought about by the complete surrender of the poli- ticians, for the greater political force cannot be permanently and totally controlled by the lesser. Yet, com- plete surrender by the politicians is apparently what conservative judicial groups now in office expect. No “Rule” Available. Most people, in commenting on the situation created by the President’s message, are searching desperately for & “rule,” preferably “a rule of thumb,” by which they can determine how to act, or ascertain what side to support in the present controversy. But the truth is that there is no “rule” for solving a unique political crisis. People will, in this instance, be forced to use their general diacretion and intelli- gence, and to gauge the actual merits of the whole discussion without the controlling guidance of any “rule” whether they like this opportunity or not. In the same category is the mani- festation of innumerable fears as to whether the action proposed will ruin the country by its bad effects as a “precedent.” Of course, the answer is that it will not be a controlling precedent for any one who is not will- ing to be hypnotized by precedents. A8 for those who can think only in terms of precedents, it might be re- marked that the precedent of threat- ening to pack the House of Lords, used by the Liberal ministry. of 1832 in Great Britain to secure the passage of an imperative parliamentary reform, was never used again by the states- men of that generation. It was never employed again in Great Britain till 1911, 79 years after its first “intoxi- cating” use as a means of supreme political control. No sensible person will act “by rote” in a great political orisis, and no such crisis will be en- gendered by the mere fact that prec- edents for solving crisis exist. There was no precedent for Mussolini in Italy, or Hitler in Germany. Dic- tatorships have not come in European countries because of the compulsive force of “precedents.” They have come for very different and more “natural” reasons. This aspect of the Roosevelt pro- posal as a dangerous “precedent” is enormously overworked in current discussion. But one fairly conclusive answer to these anxious suggestions 1s that, provided some other way could be found to render the courts reason- ably responsive to public opinion, the position of the Supreme Court could be legally guaranteed against “pack- ing” by an appropriate constitutional amendment. It is the favorite device of the conservatives to meet every criticism of the Supreme Oourt’s inter- pretation of the Constitution by the suggestion that the Constitution be “amended” so as to make room for the rejected legisiation. “And, if the people really want this legislation,” it is usually added, with complacent WOODWARD & LOTHROP THE MEN’S STORE, SECOND FLOOR. i STYLED FOR TRAVELING Fine Suits Today, more than ever before, with short trips by train or plane the mod- ern method for making business con- tacts, men who travel appreciate the sturdy qualities of these Ready-to-put- on Suits. Fabrics that are picked and tested for their wear-resisting qualities. Tailoring that emphasizes strength in every point of wear and strain. D. C, assurance, “they will passesuch an amendment through the State Legis- latures in short order.” It's Conservatives’ Task. Now, as regards this issue of alter- ing the personnel of the Supreme Court, the shoe is on the other foot. If the conservatives believe that this last loophole, whereby the people may escape suffocation through judicial restrictions, should be seuled up, let them in their turn seek a constitu- tional amendment to bring about that result. It is & question of the struc- ture of one of the chief governmental institutions and much more suited for final settlement by the method of con- stitutional amendment than are most of the economic and social problems that have been dealt with more tenta- tively and flexibly by various impore tant items of New Deal legislation. Whenever statutes have been invali- dated by the courts, New Dealers have been told they should seek constitu- tional amendments to re-establish laboriously the political policy they favor. Now, when it comes to stabil- izsing forever the position of the Su- preme Court, let the conservatives consult this same dubious oracle, the supposedly infallible response of the people to & proposal for a constitu- tional amendment. For it is admitted on all sides that the President’s pro- posal is constitutional as the Consti- tution now stands. ‘The fact is, of oourse, that the TUESDAY, MARCH 9, 1937. President’s proposal was not hatched ‘The proposal was made as a solution for a concrete political situation, which may fairly be said to be unique, or at least to possess many unique feutures. Precedents are supposed to control only when the circumstances are sim- lar. We are not likely to have again such an extremely wide divergence be- tween the ideals of the judiciary and those of the political branches of the Government as has recently been ex- perienced. If such a divergence does in after years appear once more, it seems clear that another great polit- ical crisis, unique in its atmosphere and incidents will be engendered, which will call in its turn for its ap~ propriate, but unique, solution at the hands of the statesmen of that future day. We cannot, from the viewpoint of today, instruct our grandchildren a3 to how they should treat the un- foreseeable political crises that may arise in their lives. We shall do bet- ter if we confine our thoughts to our own unique problems and to the dis- covery of the unique solutions which alone can ease and satisfy the im- perative demands of our own day and generation. (This is the third and last of & series of timely and thought-provok- ing articles on the President’s Su< preme Court proposal.) in the Capitol Grounds at & point near Louisiana avenue. ‘The measure was referred to the Senate Library Committee, which also has before it a recent resolution by Senator Byrd, Democrat, of Virginia proposing a memorial to James Madi eon. BILL ASKS MONUMENT TO ZACHARY TAYLOR Senator Overton Would Have $50,000 Memorial Near Louisiana Avenue. Erection in Washington of a monu- ment in honor of Zachary Taylor, twelfth President of the United States and a hero in the Mexican War, was proposed yesterday afternoon by Senae tor Overton, Democrat, of Louisiana. He introduced a bill calling for au- thorization of $50,000 for the me- morial and directing that it be placed | ROACH DEATH The pleasant and quick way to make coughs gwit Brothers Cough Drop: (Two kinds—Black or Menthol — 5¢.) $mith Bros. Cough Drops are the only drops containing VITAMIN A This is the vitamin ghat raises the resistauce ot the mucous membranes of the nose and throat to cold and cough infections. WOODWARD & LOTHROP 10™ 1™ F AND G STREETS PHONE DIstrIcT 5300 The corset that gives you the figure of youth. Le Gant o Youthlastic Remember—you are as young as your figure, and the most sparkling of Spring frocks are youthful. “"Two-Way-One-Way"’ for extra back hip control; ""Half-Size’" for shorter women; “Veil of Youth' for slim debs or light figures. Girdle, featuring “Two-Way-One-Way"’ stretch Corselette, a lightweight foundation to bring youthful lines to your new costume.__ Other Le Gant Models from $5 to $15 CoRsETS, THIRD FLOOR. Toss away diaper drudgery Toss-A-Way Diapers Modern, sanitary —and S0 inexpensive. These “r e v o | utionizing” new diapers, cellulose pads, gauze - covered mean comfort and protection for Baby, time and labor saving for Nurse and Mother. Box of 25, small, 50c. Large, 60c. Soft belt to hold diapers, 25¢c. INPANTS' FURNISHINGS, FourTH FLOOR. 65 Tuz MeN's Srons Vitalizing tea comes from Indln.l e idea of judicial selection to represent | ceylon, and Java-Sumatra. Select & general conservative, or liberal, or | good brand of Orange Pekoe. nationalistic, or States’ rights wnd-.Ev f tea builds vitali ency on the part of the President. It | Lvery cup of tea builds vitality, is simply the natural tendency of all ;And you'll like its delicious flavor, Presidents, and it has been illustrated | in many examples through our history. Now the slur on President Roosevelt in reference to “packing the court” is given a bit of plausibllity by this am- biguity, and by it alone. It is known to be likely that he will pick men of social and political views somewhat similar to his own. From this it is inferred without the slightest justifica- tion that the men selected will be mere underlings, “henchmen” as the news- papers say, rather than outstanding pr—— Bad Breath That Comes from Constipation | tic tone of opinion dominant in the | Bupreme Court, as constituted when | he himself first assamed the presi- goes up when you drink tea. ATH-i LETES drink it. VIGOROUS men dential office. and women find tea adds to happi- Natural Tendency Seen. | ness, efficiency. So turn to tea today! There is thus nothing new in the | Look to your Sum- mer “dress-making” in Everfast —~Cottons and Linens that boast a proud pedigree—a well-earned reputa- tion for being color-fast in the sun. Clever new designs—monotone and multi-color—in clear, bright (and, of course, lasting) hues, distinguish: 68¢c NOVELTY-STRIPED SHEER COTTONS and very new. Yard ’RIF;TED LINENS, floral designs, gay as Summer gardens. 2 75ct0 8l Yard - - - 58¢ CLOKY COTTONS, weave and color vieing in chic. Yard____ €8¢ SI.SO PRINTED PIQUE, old favor- 45c WOODWARD & LOTHROP 10™11™ F AND G STREETS PHoNE DIsmicr 5300 Here is an inexpensive way to get that unsightly 'GARBAGE PAIL UNDERGROUND 10.gallon ¢ 4.9 5 sise —until now the price has been considerably higher ite with new interest. Yard CRUISE COTTONS, crisp and color-drenched. Yard._ LAWNS in deligthful array of print motifs. Yard____ All are 36 inches wide Don't try to cover up bad breath with pleasant-smelling prepara- tdions, fr;r it often comes from a eeper-lying cause—constipa- - tion. In ulcg cases conquer the constipation and your breath will become fresh and sweet and your health and spirits will (m&mve also. nstipation is dangerous for anybody. Nujol is safe for every- body. It does not affect the stomach and is not absorbed by the body. Medical authorities nr‘yrove Nujol because it is so safe, so gentle and so natural in its action, Nujol makes up for a defi- ciency of natural lubricant in the intestines. It softens the ‘waste matter and thus permits thorough and regular bowel movements without Jriping. Just try Nujol regularly for the next month and see if you don’t feel better ;lh;n you ever suspected you could. Ask your druggist for Nujol and insist on the genuine. Miss Myrtle Simpler —from the Butterick Pat- tern Company, will be with us Monday through Wednesday, showing a collection of charming frocks made from Ever- fast Fabrics—with But- terick Patterns. L . CotToNS, SE00ND FLOOR. Bathrobes AN $3.95 Imported—washable cot- tons—pastel colors. Tai- lored styles for little boys —adorable appliqued animals - for tomboys— ruffled-edged collars for little girls. A robe light- weight enough for Spring, warm enough for the March breezes. Sizes 1 to 3 years. Long the bane of many a woman’s housekeep- ing (the garbage pail on the back porch), now it can go underground—out-of-sight— and at no great expense. It consists of a durable metal jacket with a petal-lift lid that opens at the touch of your foot—uwithin this, another durable galvanized pail fits—easily removed when garbage is col- lected. Even the installation is quickly done—and simply done. inlt W\ A The CONVENIENCE alone is well worth the price. Inrint's Avearm, Fourtn FLoOR. Housswalss, Frrrx FL00R. -~ AT