Evening Star Newspaper, July 13, 1937, Page 23

. T HE EVENING STAR, WASHINGTON, D, €, TUESDAY, JULY 13, 1937, Nl b e e e e B5 JUSTICES QUOTED ON GOURT ISSUE Hatch, Co-Author of Com- promise Bill, Urges Pas- sage in Radio Forum. Statements of two veteran members of the Supreme Court, Justice Suther- land, when he was a Senator from Utah, and Justice McReynolds, when he was Attorney General, were cited by Senator Hatch of New Mexico last night in advocating passage of the substitute court bill for Supreme Court reorganization. Senator Hatch, who is co-author of the compromise bill, spoke on the National Radio Forum, sponsored by The Star and broadeast over a Nation- wide network of the National Broad- easting Co. “I think,” said Senator Hatch, may clarify the discussion of the sub- atitute proposal if we look a little into the history of that statute (retirement or appointment of new Federal Dis- trict and Circuit Court judges) al- ready on our books. In his report for the fiscal year ending June 30, 1913, nearly 25 years ago, the then At- torney General of the United States (today an associate justice of the Bupreme Court of the United States) Mr. Justice McReynolds, made this recommendation * ‘Judges of the United States courts, at the age of 70, after having served 10 years, may retire upon full pay. In the past many judges have availed themselves of this privilege. Some, however, have remained upon the bench long beyond the time when they were capable of adequately dis- charging their duties and in conse- quence the administration of justice has suffered.’ " Would Take Precedence. Senator Hatch quoted the then At- torney General as recommending an act providing that when any judge be- low the Supreme Court “fails to avail himself” of the retirement privilege the President be required “to appoint another judge, who shall preside over the affairs of the court and have prece- dence over the older one.” “This will insure.,” McReynolds was quoted as saying, “the presence of 4 judge sufficiently active to discharge promptly and adequately the duties of the court.” Senator Hatch quoted Justice Suth- erland, who spoke as a Senator in 1916, as asking the late Senator Cum- mins of Iowa “whether he does not think the reason would be stronger in favor of such legislation as to the Su- preme Court.” The proposed law affecting retire- ment of Federal district and circuit judges or appointment of new judges to replace those incapacitated was enacted in 1919, Senator Hatch said. Text of Address. The text of his address follows: Tonight I hope to discuss, calmly and dispassionately, the substitute pro- posal for the reorganization of the Federal courts now pending before the Benate. In the controversy over the original proposal. evil forces of hatred, suspi- cion and distrust have been loosed, bringing to many of our citizens un- warranted fears and apprehension. 1 nope that the spirit of this evening will be to lay aside that suspicion and distrust and accord to those who do not agree with us the same respect for patriotic motive and purpose which we would want from them The original plan providing for the fmmediate appointment of six justices of the Supreme Court without setting up & permanent plan to make a con- structive and lasting reform was op- posed by many of us who believe there is a vast difference between legislating for the immediate present and estab- lishing a long-range permanent pro- gram. I have always believed the Presi- dent's plan to provide a constant and systematic addition of younger men to the court was a wise correction of known evils in our judicial system. Under the life-tenure clause of the Constitution. Federal judges remain on the bench as long as they live. Even wit | to avail himself of the privilege of retiring now granted by law, that the President be required, with the ad- vice and consent of the Senate, to ap- point another judge, who shall pre- side over the affairs of the court and have precedence over the older one. | This will insure, at all times, the pres- ence of a judge sufficiently active to | discharge promptly and adequately the duties of the court.” Proposed by Mr. McReynolds. The Atterney General who made that report is today an associate jus- tice of the Supreme Court of the United States, Mr. Justice McReynolds. Let me repeat, the Attorney General, in 1913, said: “The plan will insure, at all times, the presence of a fudge sufficiently active to discharge promptly and ade- quately the duties of the court.” The present plan, as it relates to | | the Supreme Court, is intended to do the same thing for the Supreme Court, |1, to insure, at all times, the pres- | ence of justices sufficiently active to | discharge promptly and adequately the duties of the court. The suggestion of Attorney General McReynolds was followed by Attorney General Gregory, who made the same recommendations to the Congress for several succeeding years. | Following those recommendations, a bill was introduced in the third session of the Sixty-third Congress which pro- vided in substance exactly what At- torney General McReynolds had rec- ommended. That measure gave the | President of the United States power | | to appoint an additional judge for all | judges of the courts of the United States below the Supreme Court who had attained the age of retirement but still remained in office, providing | only that such judge had held his | commission 10 years continuously. The bill was referred to a subcommittee of | | the Senate Judiciary Committee. The | subcommittee consisted of the Senator | from Georgia, Mr. Smith; the Senator | from Florida. Mr. Fletcher, and the Senator from New York. Mr. Root. The bill was considered and reported | favorably. In a report filed in Janu- |ary, 1916, on a later bill embodying | substantially the same provisions, we read: “A bill to carry out these recom- mendations was reported favorably by th~ Judiciary Committee of the Senate at the last session. Mr. Root, the | senior Senator at that time from New | York, served upon the subcommittes which reported the bill favorably and cordially supported the measure.” Won Great Statesmen. Any person familiar at all with the lives, character and reputation of | these three great Americans who served upon this subcommittee will | know that any plan advocated and | approved by them was sound and con- | structive and that any measure which in principle was destructive of either the letter or the spirit of the Consti- | tution would never have received ap- proval at the hands of the Senator from Georgia, Mr. Smith, whose fame reached throughout all the United | States; or the Senator from Florida, Mr. Fletcher. who served so many years with ability and distinction in though they become totally incapaci- | tated, physically or mentally, or both, there is no power vested in any - branch of the Government to correct the situation except the appointment of additional judges—or a cruel and humiliating wer of practical re- moval for incapacity vested in the President with respect to lower court Judges only. Static Judiciary Not Goal. The danger that might result was pointed out by the President in his essage of February 5, when he says: Jife tenure of judges, assured by the Constitution, was designed to place | the courts beyond temptations or in- | fluences which might impair judgments: it was not intended to create a static judiciary. A constant and systematic addition of younger their | Favors Court Substitute SENATOR HATCH. —Star Staff Photo. the Senate of the United States, or the Senator from New York, Mr. Root, | whose attainments, accomplishments and patriotic devotion to America and | her institutions are known, not | all only throughout the United States, but also throughout the civilized world. These three eminent statesmen rec- ognized the evil which flows from the | danger | life-tenure clause and the which comes from judges who seek to | remain too long on the Federal bench. To meet that situation they recom- mended and approved the idea and plan of appointing an additional judge whenever the incumbent of any Fed- eral court below the Supreme Court had reached the age of retirement and had not retired. Charges of “packing” the court were hurled in those days, years ago, even as they are hurled today, and charges of making the courts the subject of partisan politics were made then, even as they are made now. of the House of Representatives, in a minority report on a similar bill, con- demned the plan as being in contra- vention of the Constitution, and said: “It would adopt a vicious and dan- gerous policy, one if made effective if applied to the judges who now may retire would no doubt in time be ap- plied to all judges. Such a law, if more than 20| One of the committees | | valid, would make tre judiciary ab- solutely dependent on the will of the Executive.” Do not those words have a familiar sound and ring? Enacted in 1919. T cannot name all the distinguished Senators and Representatives and noted jurists who have supported a plan to add judges to the Federal courts to supplement those who have reached retirement age but have not retired. However, it is significant that when such a plan was finally enacted | into statute in 1919, it was said in the House of Representatives that all | the judges favored it. | The act of 1919 gives the President power to appoint an additional judge on any lower Federal court when the President finds that a judge past re- tirement age is physically or mentally disabled from performing the duties of his office. Every President since Woodrow Wilson has had the power to find and declare as a fact, without hearing a word of testimony and with- | out giving the aged judge a chance to be heard in his own defense, that such a judge is unable to perform the duties of his office, and upon such finding, the President is authorized ,to appoint an additional judge for i such court. Loose Pillow- Back Chair 29.95 Richly carved bose. tapestry covering choice of colors. Fine 1asting henor and credit of the Presi- dents, Wilson, Harding, Coolidge, Hoover, and yes, Franklin D. Roose- velt, not & one of them has ever sbused the power thus conferred by the statutes of the United States. Each of these distinguished Presidents has held a sword which he could have wielded over the head of every aged lower Federal judge in this land and could have used it to make the judge bend his knee to executive will, but no President has sought to so use that power. That fact—that no President has abused that power over the judiciary should calm many fears. In this day of much talk and of of power by the Executive, may we not pause here and say perhaps we have talked too much; perhaps we have talked too loudly: perhaps our fears have been more fancied than real? Present Bill Less Drastic. The bill presently before the Senate is a much less drastic bill than the one already on the statute books. Re- | alizing the real need for constructive reform, and knowing that men do be- come old, and with passing years there naturally comes that decrepitude and decay which the laws of nature apply with almost equal force to every man who lives, the present bill seeks to provide a permanent plan by which that condition may be met without injury to, or reflection upon a single Judge or justice of the United States. Any justice of the Supreme Court who has passed the age of 75 years, who is | give his country the benefit of the wisdom and experience which he has acquired throughout the years, may | do so. and our country may profit | from his sacrifice. There is no thought | of compelling retirement. A younger | man will be appointed to the Supreme Court, not to supplant the aged jus- tices, simply a younger man ap- | pointed as any other justice of tne Supreme Court is appointed to carry his full share of the duties and re- sponsibilities of that high office, thus lifting in some degree and measure the heavy load of responsibility which rests upon the shoulders of the older judge. Thus the substitute bill cre- ates & much-needed pétmanent re- form. When a similar law for the lower courts has received the cordial sup- port of Elihu Root and the others I have mentioned, its principle applied in the present bill can hardly ‘be said to be radical, extreme or unwise. By limiting the power of the Presi- dent to the appointment of not more than one additional justice in each calendar year under the bill it is in- tended to make the plan safe so that no Executive may ever use his power for the purpose of so-called “packing™ the court. This limitation on the | power of the President was originally proposed by me long before the hear- ings of the Judiciary' Committee of the Senate had concluded. When |.the amendment was rejected in com- | bill. | The amendment is included in the much concern about dictators, of abuse | willing to remain on the bench and | mittee, I voted against the ongmnl;. been improved by the efforts of others. able and distinguished leader; Ashurst of Arizona, Logan of Kentucky, McGill of Kansas and others have worked long and faithfully in an honest effort to make the measure safe, sound and constructive. The substitute bill com- pletely changes the potentialities of the origina! measure—and constitutes merely an extension to the Supreme Court on s sound, safe and orderly plan, of & well-known and long-recog- nized principle which had already been applied to the lower courts. The proposal is not perfect. Probably there are defects. Legislation should never be assumed to be perfect and not subject to improvement. I am a member of the President’s party. I firmly believe in the high objectives and purposes of Franklin D. Roosevelt. When the President | said that he wanted to meet the evil of aged justices remaining too long on the Federal courts and to provide |a constant and systematic addition of younger judges, I believed him. I did not accuse him of deception. T did not doubt his word. But when | T saw that the original bill had po- | tentialities which I do not believe | he foresaw, I conceived it my duty | to help in reforming the measure— to make the bill accomplish the con- structive thing he asked for and not other things. We sought to build— not to destroy—either the judicial or the executive branch of Government. Mr. Sutherland Quoted. It has been charged, and will be charged, that this plan may be wisely adopted for the lower courts, but it should not apply to the Supreme Court. To that, I answer, not in my | own words, but in the language of some noted members of the United | States Senate when they were discuss- | ing the similar proposal relating to the lower courts to which I have re- ferred. In the year 1916, speaking in opposition to a similar measure for the lower courts, the Senator from Utah at that time, Mr. Sutherland, | now associate justice of the Supreme | Court of the United States, said | “If a judge upon the bench of the circuit court of appeals is incapaci- tated, a district judge may be called to take his place and may sit upon the Circuit Court of Appeals; if a dis- trict judge is incapacitated, another district judge may be assigned to take his place; but no such condition ex- ists as to the Supreme Court of the | United States. Nobody else can be called into that court. So, if there are degrees in a matter of that kind, | I ask the Senator from Iowa whether | he does not think the reason would be stronger in favor of such legisla- tion as to the Supreme Court?” To that observation, Senator Cum- mins replied: “Undoubtedly, Mr. President, the ob- | servation of the Senator from Utah has great weight, and I was about to touch upon that phase of the sub- ject. The remark I had made was that, constitutionally speaking, the Supreme Court of the United States |can be dealt with in precisely the | same way as the circuit court or the But be it to the ever-| present substitute bill, which has also ' district court can be dealt with. From ! THESE > MAGNIFICENT Deep Tufted Lounge Chair 29.95 Note the loose pillow back and brood, Covered in jungle cloth in @ choice of colors. tufted arms. Benators Robinson of “Arkansas, our | there is, as the Senator from Utah has stated, a much more persuasive reason for at all times keeping the men under 70 years of age than exists with regard to the other Federal courts.” Later in the debate, from Rnode Island, Mr. | pressed similar views. ‘Thus, from these distinguished for- the Senator Colt, »x- Senate we find reasoning which amply proves and demonstrates that the same rule should apply to the Supreme Court, as well as to the lower courts | About that, there can be no question. No Subservient Court Wanted. 1t is argued and will continue to be | argued, as was said on the floor of | the United States Senate just the other | day, all this talk of aged justices is mere camouflage and subterfuge, and that the real purpose of the pending substitute is to create a subservient judiciary. That charge is without foundation. In my opinion, neither the President nor any one else wants a subservient court. Steadfastly, 1 have advocated the adoption of an amendment to carry out the thought contained in the Pres- jdent’s message, but to safeg by making & permanent plan which no President could use for the so- called “packing” of the cour When the amendment was rejected in the committee, I voted a: | original bill. The amendment proposed when it was thought there was a safe majority for the o bill. Then it was I first souz make the measure a sound and perma- nent program. From that rpose 1 will not be diverted and now that the amendments have been accepted, 1 support the substitute proposal. Un- der it, all judges will be placed on an equal plane and appointpents to all the courts will be made uant to that permanent plan and program In frankness, it must be said that President Roosevelt may have more appointments than he otherwise would have had. His power to fill normal vacancies is not changed by the bill. I do not consider that an evil. I am not afraid to trust the President with the selection of any number of judges. I know that no “rubber stamp.” subservient judze will be appointed by the President, and I know no such a judge would ever be confirmed by the Senate of the United States. But I have always insisted that the power to so appoint must not be given to obtain a particu- lar temporary end or purpose. Such power must come pursuant to a defi- nite, certain, gradual and orderly permanent program which will apply alike to all administrations. The same power must be extended to Presidents who may follow, as well as to President Roosevelt. Here lies one of the main differences between the substitute and the original bill While the President may have more appointments, no person can say with certainty that this is true. No man can foretell the future. Over and over again, I stress the fact that we must never legislate to accomplish a See them on display . . Fourth Floor. the other point of view, that of policy, | mere temporary end or purpose mer members of the United States ' We must establish & precedent which we are willing for others to follow. Thus | only can wise legislation ever be en= Bupreme Court full of able-bodied |acted The substitute bill so operates. | The power given under it will extend |to all Presidents. I am willing for it to be so. But I shall not be less ‘K!‘nflrmlu with, nor snall I have less faith in my own President than I |have in those future Presidents of | whom, pernaps, I have not even heard today. Unprejudiced Consideration Wanted. A majority of the Senators are willing, T believe, to support a perma= nent program which does correct this long-recognized defect in our judi- cial system. All we ask and all that I ask tonight is that the plan be given fair and unprejudiced consid= eration. If the Idea is meritorious, let the bill pass. If it is bad or un- sound, let it be defeated in fair, square, American manner. In the heat, noise and confusion of battle over this controversy, let us not forget other and causes which may far transcend in impor= tance this measure we debate today. Some of not forgotten, ard we shall get that manv ecos nomic evils which brought on the de= pression are still with We shall not forget that the problems of labor, capital, industry, ilture, a bale anced budget, and many others, have not been finally solved: that, literally m honest American ritizens remain unemployed today: that hun- ger and want, privation and misery still exist in our America; but no ons can deny that we have vastly im- proved conditions today; we shall not et fear—fear which clutched al- most every human beinz in Ameri in 1932 and 1933, fear which was only dispelled by the magic voice, high courage and leadership of Franklin D. Roosevelt. We 1l not forget to preserve, protect and maintain the independence of the judiciary, and her shall we forget to protect, pre= e and maintain the confidence and respect of our people in the executive branch of Government We who are Democrats shall forget those stir 1 at Franklin Field a little more than one short year ago by Franklin D. Roosevelt, when he said, “It is a war for the survival of democracy. We are fighting to save a great and precious form of Government for ourselves and for the world” We shall not forget our leader's inspired battle cry, “T! generation has a rendezvous with des- tiny.” To keep that rendezvous, let us keep our faith in our courts, let us keep our faith in our Executive. but above all, let us not fail in our cour= age to follow that battle cry lest our own and future generations be ashamed, that as we kept that rendez= vous we were afraid “to own abilit to govern oursel trust American democarcy.” Americans not be afraid! fssues us have not £ ns of not | . Nurse Finds 21 Pearls. Miss Gara Miller, in Boston for a nurses’ convention, found 21 pearls in her first order of oysters Such aristocrats os loose pillow-back chairs, full-frame mohair-frieze covered chairs, tufted lounge chairs and those huge winged chairs seldom seen at this price. . on our blood will vitalize the courts and bet- | ter equip them to recognize and apply | the essential concepts of justice in the light of the needs and the facts | an ever-changing world.” It was this well-known and well- | understood imperfection in our laws relating to the judiciary which caused me first to look with favor upon the | suggestion of the President to provide a plan for the constant and syste- matic adct of younger men to the court. When I looked further into the matter, in accordance with sugges- tions in the President's message, I found that the best minds in Con- gress and the Department of Justice had for many vears agreed with the | President's position, and that as far as the lower courts were concerned the principle was not new at all, but was already on the statute books, al- though in a form too cruel for any humane President to use. In other words, President Roosevelt's proposal did not express a new idea; it was merely a refinement and an extension to the Supreme Court of a principle that was already adopted by Con- gress. I think it may clarify the discus- sion of the substitute proposal if we Jook a little into the history of that statute already on our books. In his report for the fiscal year ending June 80, 1913, nearly 25 years ago, the then Attorney General of the United Btates made this recommendation: “Judges of the United States courts, at the age of 70, after having served 10 years, may retire upon full pay. In the past many judges have availed themselves of this privilege. Some, however, have remained upon the bench long beyond the time when they were capable of adequately discharg- ing their duties and in consequence the administration of justice has suf- fered. The power of Congress to correct this condition is limited by the provision of the Constitution that fudges shall hold their offices during good behavior, I suggest an act pro- viding when any judge of a Federal sourt below the Supreme Court fails A |} Loose Pillow- Back Chair 29.95 Delicately carved base and smart new tapestry-weave coverings in a choice of colors. High-Back Wing Chair 29.95 Full-Framed Lounge Chair 29.95 With pillow back. 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