Evening Star Newspaper, May 19, 1937, Page 11

Van Devanter . Raises Law Puzzle His Exact Status and Effet On Court Change in Doubt. BY DAVID LAWRENCE. AR from clarifying or even be- # ginning to clarify the judiciary situation, the “retirement from regular -active service” of Jus- tice Van Devanter of the Supreme Court has produced a number of grave complications. For one thing, it means that if no @ther justice follows Mr. Van Devan- ter's lead and if the President's pro- posed bill to enlarge the court should pass as he rec- ommended it, the Supreme Court hereafter would oould conceivably divide 7 to 7 here. after. This is be- cause the Presi- dent’s bill pro- vides that no ad- i ditional justices ‘f shall be ap-it 4 pointed alongside of any judge who, having reached the age of 70, gives Dotice of his intention to retire. But apart from the creation of a eourt of an even number of justices— something that has happened only rarely in American history—there is another complication. It will be noted on examining Justice Van Devanter’s letter that he did not use the word “resign.” He followed closely the language of the Sumners-McCarran law passed by this session of Congress and signed by Mr. Roosevelt on March 1. He wrote: “I desire to avail my- self of the rights, privileges, and ju- dicial service specified in the act of March 1, 1937, and to that end I here- by retire from regular active service on the bench.” Prevents Pay Cut by Congress ‘The purpose of the act was to allow 8 justice to retire and yet draw full pay because when Justice Oliver Wen- dell Holmes resigned an economy wave came along in Congress and cut his salary in half. If, however, a judge remains in service as a member of the judicial branch of the Govern- ment, the theory is that he has con- stitutional protection against having his salary diminished. For the Con- stitution does not permit any judge's salary to be reduced by Congress. The Sumners-McCarran law was adopted in an effort to give justices David Lawrence, who retired some sort of opportunity | to continue in the status of judicial officers without actually cutting them- selves off by a resignation. This is in- deed analogous to the status of re- tired Army officers who are subject to call. In a letter to the New York Times last Sunday, Henry W. Taft, a brother of the late Chief Justice Taft, dis- cussed these very points. He said: “This raises a question whether there can be a retirement which is not - ® resignation, and whether the func- tion of a justice of the Supreme Court in participating in the exercise by the court of its judicial power under the Constitution can be altered or limited by Congress, even with the assent of the justice, Creates No Vacancy. *The office held by a justice can- not be held in part; if he remains a Justice of the Supreme Court and ex- ercises any part of the powers con- ferred by his commission, there is no vacancy, and there can be no ‘suc- cessor,” as provided in the Sumners- McCarran bill. “The Sumners-McCarran bill also provides that a justice shall have the right to retire ‘from regular active rervice on the bench’ What does that mean? If he continues to be a Justice of the Supreme Court he has, under the Constitution, the right to demand that he be allowed to sit with the court and perform his duties; and his oath of office, ‘to support the Con- stitution’ as well as the statutory oath, requires that he should do so. . “Numerous other questions arise. How, under the Constitution, can there be any judicial service which is not both ‘regular’ and ‘active,’ as pro- vided in the act? How can a man be a justice of the Supreme Court and . not be counted to determine a ma- Jority? That would seem to be im- . plicit in the performance of the judi- . cial function ‘vested in one Supreme . Court.” Quorum Question Arises. . “Furthermore, the present law pro- vides that the quorum of the court shall consist of six of the nine jus- tices, and the bill proposed by the President also provides that a quorum .. shall consist of ‘at least two-thirds of the number of which the Supreme Court of the United States consists.” Is a retired justice to be counted in determining whether the quorum exists? “Finally, the Sumners-McCarran bill makes the nature and character , of the continued service of a retired ” Justice such as he ‘may be willing to undertake’” Can the performance of the function of a justice appointed under the Constitution and still bound by his oath of office be made ‘ dependent upon his willingness to undertake t?” I have quoted Mr. Taft's letter at length because it states the complex- dties of the problem raised by Mr. Van Devanter’s withdrawal from “regular Active service” and challenges at once the meaning of the Sumners-McCar- Tan law. X Raises Eligibility Question. In an entirely separate aspect, there is another complication. The Consti- tution forbids the appointment of any member of the House or Senate to WATCN THURSDAY'S STAR THE EVENING News Behind the News Evidence of Budget Balancing in 1938 Gleaned From Roosevelt Talks With Congress Leaders. BY PAUL MALLON. NCERTAIN evidence as to Mr. R.'s seriousness about balancing the budget came out of his recent series of conferences with his con- gressional leaders. They brought word back to anxious legislators that he would balance it in the old Spanish manner, “manana,” i.e,in 1938. Although this is unsatisfactory to those who want an immediate balance, they seem to be somewhat appeased by the new assurance. The “manana” balancing of the budget has been going on for three or four Years now, but this time they profess to believe it will be done. What makes them s0 sure is the fact that it could have been done this year if the President really had wanted to do it, and they do not see how he can avoid doing it next year. * ok %k % ‘That too-healthy tan on Jim Farley's face these days is not premature sunburn. He is just smoking from within because he thought he was talking off the record when he said: “Well, when Senator O'Ma- honey comes down here (the White House) wanting help on his sugar bill, his conscience won't be bothering him, will it? Or when Pat McCarran wants ald for his State. It's all in the viewpoint.” Mr. Farley has always talked freely. His friends think too Ireely. They are surprised he has not become involved in something like his present threat to anti-packing Supreme Court Democrats long before this. Friendly newsmen have occasionally kept him out of trouble by giving an inkling of how his free talking might sound in print. He is now carrying a roll of adhesive tape in his pocket. * ok K X The power message which the President has been promising to Con- gress will contain a recommendation for a flock of new power authorities like T. V. A. There will probably be one for each of the great river systems of the country. What his advisers have been saying he has in mind is one for the entire Eastern Seaboard, one for the Pacific Northwest, one for the Colorado River, etc. ‘The reason he is sending it up soon is to take the congressional mind off the more controversial measures now pending. * ok x k ‘Wall Street has been suffering psychosis neuroses over gold and 100 per cent margins, among other things. Or, at any rate, Government authori- ties attribute the recent declines to widespread shivering over these two topics. (They do not mention strikes.) No authorities here have anything very comforting to say about the gold situation. They know they are in & mess, and if any one has a satisfactory solution he is keeping it from the others. They comfort them- selves with the thought that there is nothing immediately alarming and that current frons now in the international fires (the British ‘working arrangement, for one) may ease their difficulties. The 100 per cent margins talk, however, seems to be just one of those Wall Street rumors. The best of authorities say there is absolutely nothing in it, and will be nothing for a long, long time, meaning if ever. Apparently what they intend to do is this: If the market, some time in the future, gets into a boom stage which they consider to be dangerous, they will use 100 per cent margins as one of the things to hammer it down. That ,may be a long time off, the way things are going at present. * ok K K Mr. R. has been saying he wants the Wallace ever-normal granary proposal adopted, but all he is sure of getting is a hearing. The House Agriculture Committee will hold one shortly, inviting all the farm leaders in to ascertain what they want. Unless insiders are very badly informed, the farm politicos are more or less lukewarm, if not actually divived, on the subject. Con- gressional authorities expect to develop that fact at the hearings. The granary idea was not discussed during any of the recent con- gressional conferences at the White House. The President is advised of inner House objections. However, the hearings will help to take the national spotlight off the Supreme Court issue, and anything which accomplishes this should be a desirable relief, from the White House standpoint. * ok % X The left-out-in-the-cold mood of Congress is illustrated by a story concerning Chairman Hatton Sumners of the House Judiciary Committee. Ordinarily he would be the leader in the House for Mr. R.’s court-packing program, just like Senator Ashurg in the Senate. One of his dinner partners assumed as much, the other night. She tried to make pleasant conversation by saying: “Well, I suppose you were one of those whom the President called in and consulted about his Supreme Court bill?” “Nope,” said Sumners—*just called in.” (Copyright, 1937.) _—_—nnmm— passed by Congress at his request creating 8 special position of Coun- sellor of the Department of State, to which he now appoints R. Walton | similar evolution has taken place in Moore, former member of Congress, | any office which has been created during the term served by such mem- ber. Is the vacancy now created by Mr. Van Devanter's withdrawal a different kind of a vacancy than that which could exist, before March 1, 1937, and if it is, will this not disqual- who is 78 years old. (Copyrigh:, 1937.) ify Senators Robinson of Arkansas or ‘Wagner of New York or any of the other members of the present Con- gress to receive the appointment in place of Mr. Van Devanter? But contradictions are the order of the day here, anyway. Almost at the very moment that Mr. Roosevelt was sending word triumphantly to the country that he had in effect forced one of the conservatives from the bench because Mr. Van Devanter allegedly was too old—his age being 78—the President signed a bill just Milk Helps Firemen. ‘Their eyes streaming, firemen fought for an hour to shut off the valve of a cold storage plant at Sheffield, Eng- land, from- which was pouring am- monia gas. In spite of gas masks, they had to work in relays. A crowd collected to watch and tearfully car- ried milk to the fireladdies as an anti- dote. Fire broke out in a gas engine, but the ammortia itself helped to ex- tinguish it. STAR, WASHINGTON D. C, WEDNESDAY, THE opinions of the writers on this page are their own, not necessarily The Star’s. Such opinions are presented in The Star’s effort to give all sides of questions of interest to its readers, although such opinions may be contradictory among themselves and directly opposed to Tft e Star’s. Saving Court Prestige Resignation of Van Devanter May Help Preserve Traditional Form. BY DOROTHY THOMPSON. HE resignation of Justice Van Devanter does not come as & surprise to this column. It is even possible that another Justice, perhaps one from the liberal side of the bench, will also resign before the Summer is out. This resig- nation and any e that may follow :.. it may be vari- ously interpreted. Some will say that the retiring justice has yield- ed to pressure, as many have ac- cused Justice Roberts of doing, in moving over on the liberal side. In a sense they have yielded to pressure, but that is not the im- portant thing about what has hap- pened. It has been apparent that the nine justices, all of them, without exception and without regard for their conservative or liberal predilec- tions, have intended, and do intend, to save the dignity and the status of the Supreme Court of the United States. They have intended, and do intend, to save the principle of legitimate, constitutional government in this country from personal usurpa- tion. Some may argue that Justice Roberts’ switch and Justice Van De- vanter's resignation allow the Presi- dent to win the substance of his pro- posals, merely preserving the tradi- tional form. That is true. But we may be thankful that on the supreme bench and in Congress itself are men who are statesmanly enough to know that the form is prodigiously im- portant. Government Must Be Formal. All government, all civilization and all democracies must be formal. Otherwise the Nation heads straight into chaos. The Supreme Court does not intend, and & majority in the Semate do not intend, to permit the President to fill the supreme bench with stooges and under the most disingenuous excuse enlarge and pack the court. The bench is going to be liberalized but it is going to be liberalized in the traditional way. New appointments, if any, will be legitimate appointments, to fill legiti- mate vacancies, and not newly created jobs to assure a yes-bench for the President, or for any temporary ma- Jority. The man who is appointed in the retired justice’s place will be appointed in the traditional way and not to represent on the bench the President’s wishes. This is as impor- tant a difference as possible. Evolution in Sentiment. X The justice's resignation is the more effective because it comes when the fight against the President’s pro- posals is all but won. We have watched, for weeks now, the slow change in the attitude of the Senate Judiciary Committee, from the point where there was an apparent ma- Jority for the President, to yester- day, when the bill was voted out ad- versely by 10 to 8. ‘We have also watched the group in favor of some sort of compromise swing over to outright opposition. A Dorothy Thompsoh. the Senate and, though probably to a lesser extent, in the House. The Pres- ident’s proposals are beaten if they come to a vote in the Senate, accord- ing to general reports. Why has this happened? The po- litical strength is overwhelmingly with the President. The political machine has been actively support- ing him. It has cracked down on wavering or adverse Senators with promises of personal retaliation if they did not support the proposals. But the Senators have become de- creasingly fearful of these threats, as it became increasingly apparent wag deeply unpopular in the country. Many Americans have been shocked; most have been made uneasy; no- body, not even the bill's public sup- porters, liked the manner in which it was launched; some of them, like Morris Ernst, admitted publicly that it was creating a dangerous precedent; altogether, the proposal got the hook, and the Representatives in Washing- ton knew it and began to feel that they could stand again in their con- stituencies on this issue and possibly be re-elected even with the hostility of Mr, Farley. President’s Greatest Failure. The whole campaign has been the greatest failure in the President's ca- reer. It has been absolutely impossible for his supporters to make a liberal V8. conservative issue out of it. First of all, the line-up in Congrees, the spontaneous line-up, precluded that issue. Senator Wheeler, a liberal, who in the last Congress fought valiantly for the utility holding company bill, which was the target of the “Economic Royalists” and was opposed at the time by his party colleague, Senator Diet- erich, came out to lead the opposition to the judiciary bill—while his less lib- eral opponent supported it as a regular party fellow. Wheeler, Shipstead, Nye, Frazier, Borah, Johnson. Democrats and Pro- gressives, are all against it. Every Re- publican is against it, which has been by no means true of the whole Roose- velt program. The conservative Demo- crats are against it. What are left are mostly yes-men. Not altogether. Let us be fair. Senator La Follette and Senator Norris are not yes-men. But by and large the support for the bill has been plain subservience to the President’s wishes—and to Mr. Farley's. Bench Was for Rights. ‘The attitude of the members of the supreme bench also made it impossi- ble to present the proposal as a great liberal measure. When Chief Justice Hughes and Justice Brandeis coupled their names in the statement which dismissed once and for all the charge that the bench was not keeping up with its work, it became apparent that the bench, also, which has been divided on many questions, was not divided on this one. The supreme bench is an instru- ment of the state, not of the majority. It does not represent the prevailing congressional majority and it is not an appendage of the presidency. Whether or not that should remain a fact in our American system of gov- ernment has been the issue, and the only issue. And the votes against the President’s proposals are votes against personal usurpation of power, simply that and nothing more. Catastrophe Possible. If the President hardens and in- sists on both form ‘and substance this column believes that will be his catastrophe. But perhaps we know too little of the politician's mind. Whenever has it been ignoble to admit a mistake, or unattractive to accept defeat in a sportsmanlike manner? The court is on the liberal side now. The conventions until now have been preserved. We still have legiti- mate government. If the President goes on insisting, not only that he wants a liberal court but that he wants it to be his court, organized in his way, the whole campaign will This Changing World Left Dictatorships Having Difficulty Maintaining Iron Rule Over People. BY CONSTANTINE BROWN. HE dictatorships of the left are seemingly incapable of maintaining l their people under iron rule like Mussolini and Hitler are keeping theirs. In Spain, despite the struggle for life and death between the Socialists of all shades from pink to red and the Fascists of Gen. Franco, 8ix cabinets have been formed within 11 months. The Spanish leaders don’t get along with each other. Various political factions want to force their own point of view on the others. It is a miracle that despite the internal dissension the opponents of fascism are putting up such a remarkable fight against the Pranco merce- naries. * X ok x The U. 8. 8. R. is now an old- established proletarian dictatorship. Its leaders belleved that the re- public was sufficiently strong to follow the organization of the well-established democratic coun- tries. Not only did Stalin & Co. provide the Russian people with a brand-new moderate constitution, but they freed the army from the politi- cal interference of civilian “inspectors.” ‘The Russian army leaders pointed out to the government that the old system of having the actions of a regimental, divisional or army ©orps com- mander checked up, controlled and countersigned by some Communist party member was detrimental to the national defense. * k% % Btalin, under the pressure of his friend Voroshiloff, and possibly fol- lowing the advice of some general ataff officers of the allied nations, with- drew the political advisers from the military units. The soldiers before joining the army were still put through a strenuous political course, where the Communist ideals and doctrines were instilled into them by Communist teachers. But there were no civilians dutting into the daily routine of the barracks. The two treason trials of a few months ago and the investigations of the secret police, which showed that the army might at any time run away with the show, especially in the event of a conflagration, led Stalin to Teinstate civilian control of the army. History has shown that after every sweeping social revolution—such as the French revolution of 1789—if the army becomes too strong some brainy general takes matters into his own hands to sweep aside the high-minded theorizing civilians and establish & reactionary empire. And the Russians do not want this to happen in their own country, * x ok * The result of the teachings of history and the growth in strength and prestige of the Red army has decided Stalin to order back commissars with every army unit. Henceforth no commander can give an order to his men with- out having previously ezplained in detail the reason, the scope and the utility of this order to the civilian representative from Moscow. The commanding officer’s order is not valid unless countersigned by the respective commissar. From the political point of view this might be useful, because it keeps a close check on the undue activities of high-ranking army officers. But from the military point of view it is considered fatal that a civilian, ignorant of military affairs, should decide as the last authority whether or not the artillery should shoot off its guns on a certain day, or not. And while in time of peace this might prove only a serious handicap to the training of the army, in time of war it would be disastrous. Imagine the United States being invaded by a foreign power and Jim Farley ordering Gen. MacArthur when and how to attack the enemy. * ¥ % % These tribulations of the dictatorships of the left are just so much more incitement for the other dictators to take advantage of the internal dissension in these countries and put into effect their plans for territorial conquests. * % % ‘The French are worried lest the International Exposition to be opened in Paris next month might not prove the financial success the govern- ment wants it to be. Because of many rumors of dan- gers of war, possible political trou- ble, possible strikes and what not, foreigners, and especially Ameri- cans, are somewhat hesitant of paying more than a fleeting visit to the exposition. Press agents are wondering what stunts they might invent to draw as many visitors from abroad as possible to Paris in the course of this Summer. An enterprising publicity man has suggested that the French government prevail upon Edward, Duke of Windsor, and his duchess to be present at the opening ceremonies and possibly pay frequent visits at certain intervals. Since Edward is not quite happy with the income he is receiving {from his family, it has been suggested that he be approached discreetly and offered & handsome sum for each visit he and his wife would make to Paris during the exposition. cease to have even dignity, and we shall begin to suspect that the Presi- dent cares more for his personal pres- tige than he cares for what he started out to get. But such struggles for | saved. prestige are petty, and petulant, cha) acteristic of the politician, not of the statesman. Actually Justice Van (Copyright, 1837.) A—11 Headline Folk and What They Do Vanderbilt Hurries to Repair Sloop for Cup Race. MILING bravely at misfortune, Harold Vanderbilt studies dam- age done to his sloop, Ranger, in angry midnight seas while she was being towed from Bath, where she was built and launched, to New= port. With the sloop bereft of her du- ralumin mast—valued at $20,000—her costly steel stand= ing rigging gone, Mr. Vanderbilt, hurrying to Bristol to meet his partially wrecked wind- jammer, spent no Devanter has saved the face of the | President—if he wants to have it | time in repining, vented no sailorly rage against the fates that preside over wind and wave. Instead he systematically went about figur- ing what could be done to offset disaster and s0 prepare his sloop for racing as candidate for the honor of defending the storied America's Cup against T. O. M. Sopwith’s English challenger, Endeavour I, which has just arrived in this country to tune up for the cup series at the end of July. Not the sort of man to seek sym- pathy from any one, Mr. Vanderbilt nonetheless has it in goodly measure from all yachtsmen and from all men indeed who hold a brief for sports- manship and an ardent admiration for sportsmen. When Mr. Sopwith issued his second challenge for the famous trophy last Winter—he had raced unsuccessfully for the cup in 1934 with Endeavour I— memkbers of the New York Yacht Club, custodian of the cup, declined with an amazing unanimity to have any part in financing a new cup defender. the past, craft of the sort have usua! been built by syndicates of club mem- bers with the expense of some $500,000 thus shared among 8 or 10 or 12 wealthy yachtsmen. In the present instance, with no one willing to participate in syndicate ene terprise, Mr. Vanderbilt himself under= took all the expense, all the work, all the worry incidental to the conduct of cup defense. And then, with his mighty sloop built, rigeed and ready to prepare for her initial flights, came an accident in stormy seas which, but for a single faint smile of good luck in the darkest moment, would have sent Ranger to the bottom of the Atlantic. A real sailor man, Harold Vander= bilt. Unquestionably the greatest race ing navigator in this country and probe ably the world. Son of the late Wile liam Kissam Vanderbilt, he began rac- ing sail boats as a boy off Newport, first in diminutive craft and then finally, after graduation from Harvard in 1907, larger boats, until at length his schooner Vagrant became an ime portant factor in regattas along the Atlantic seaboard. He sailed Rainbow in the cup series off Newport in 1934, piloting an inferior craft to victory over Endeavour I through his sheer genius as a racing skipper. What time he is not sailing Mr. Vanderbilt helps conduct his inherited interests in the New York Central Railroad. Incidentally, he is one of the best contract bridge players allve, (Copsright, 1937.) Harold Vanderbilt. Do As Your Dentist Does- when he cleans your teeth that the proposal to pack the court LIFE INSURANCE WEEK RE you carrying all the life insurance you need? We suggest that you review your life insur- ance program during Life Insurance Week. If the protection it affords your family is- inadequate, we urge you to see your life underwriter without delay. AVE you provided in- vestment protection for your life insurance funds? A life insurance trust will safeguard the proceeds, and provide reg- vlar income with available funds for emergencies. We will gladly explain the de- tails of this plan. THE WASHINGTON LOAN AND TRUST COMPANY F Street at 9th Seventeenth Street at G HARRY G. MEEM, President MEMBER FEDERAL RESERVE SYSTEM and FEDERAL DEPOSIT INSURANCE CORPORATION 4 \ [] ‘¢ will clean and polish teeth so quickly and leave them so gleaming white—as POWDER. That is why your dentist, when cleaning your teeth, as you know— always uses powder. As it is only the powder part of any dentifrice that cleans, a dentifrice that is ALL POWDER—just naturally cleans best. Dr. Lyon’s Tooth Powder is ALL POWDER—100% cleansing properties. This is more than twice the cleansing properties of tooth pastes. Dentists everywhere recommend THERE is nothing known that g e | Dr. Lyon’s Tooth Powder, because— [t s i e e e e T ey : ’ 100% Cleansing Properties Twice that of tooth paste No Acid, Grit or Pumice Cannot possibly injure or scratch the softest enamel Outlasts Tooth Paste 2to 1 teeth simply cannot remain dull and film coated when it is used. Dr. Lyon’s cleans off all stains and polishes the teeth in a harmless and practical way that leaves them sparkling—many shades whiter. ; g Dr. Lyon’s Tooth Powder is a special dental powder developed for HOME USE by a distinguished practicing dentist. Free from all acids, grit or pumice, it cannot possibly injure or scratch the softest enamel. Even as a Dr.LYON’S ~ DR LyoNs T00TH POWDER neutralizer in acid mouth conditions, Dr. Lyon’s is just as effective as Milk of Magnesia. Dr. Lyon’s keeps your teeth REALLY CLEAN and clean teeth mean—firm, healthy gums and the least possible tooth decay. It leaves your teeth feeling so much cleaner, our mouth so refreshed, and your greath so sweet and pure. Brush your teeth with Dr. Lyon’s Tooth Powder regularly—consult your dentist periodically—and you will be doing ALL that you can possibly do to protect your teeth. Once you use powder you will never go back to tooth paste. Thousands are switching to Dr. Lyon’s daily. Dr. Lyon’s is not only doubly effi- cient, but it costs only half as much to use. Even a small package lasts twice as long as a tube of tooth paste. TOOTH POWDER Ly