October 16, 1937 - Article - The 168 Days, The Strange Finale, by Joseph Alsop and Turner Catledge (part 3)
The strangest scene in the whole long drama of the court fight was played shortly before midday on July 6th, in the President's office at the White House. In the same sunny room, months before, the President had made his decision to try to pack the Supreme Court. Then he had gambled his prestige, his power in his party and his absolute command of Congress with perfect confidence that he could win. Now he sat at his desk between the flags with the ugly possibility of defeat staring him in the face. With him was Sen. Burton K. Wheeler, of Montana, leader of the opposition to the court bill, whom he had invited to the White House in a vain effort to avert what was to come.
The atmosphere of the meeting was heavily surcharged. In the President's mind there boiled all the mounting bitterness on months of frustration. He had gone into the fight because he believed that the Supreme Court ought to "co-operate" with him, because he was convinced that the court had done wrong in blocking his plans for social and economic reform, and because he thought it his prerogative to bring the court in line. His long frustration surprised no one more than the President, for he suffered from such an overconfidence as must come to any man after four years of unbroken success in great matters. Moreover, he did not consider it Congress' business to oppose his broad objectives after the people's "mandate" of last November. During the course of the struggle he told at least one senator that it was the executive's duty to conceive the general principles of legislation, and the duty of Congress to reduce the executive's conceptions into law. Yet the opposition had come, and on that hot July morning he was sacrificing his pride in an effort to conciliate it.
In his singular overconfidence, he hoped to talk Wheeler around - a hope not unlike that of the young lady of Niger who smiled as she rode on a tiger. Not only was Wheeler completely convinced that he was doing right in opposing the court plan. He was pretty bitter himself. Not so long before, Wheeler had learned that the President had personally given forty minutes to persuading the representative of a farm organization to go to into Montana and stir up feeling against him, and he remembered plenty of other incidents of the same nature. He recalled too, that before the Democratic he had had a principle influence in lining up Western delegates for Governor Roosevelt, of New York. No wonder the President's easy geniality, his matter-of-fact, man-to-man, I-bear-no-malice manner, utterly failed to mollify Wheeler.
At first the President tried to make his court plan seem unimportant, to show it was nothing for old friends to fight over. A workable judicial system, like the English in its flexibility and dispatch, was all he wanted, so he said. Wheeler pointed out that packing the Supreme Court was something else again, and took the offensive himself. How could the President have been so heartlessly cruel to 80 year old Justice Brandeis, the first and best New Dealer of them all, as to make the justices' age the mainspring of his attack on the court? He asked the questions vehemently, and the President, with the air of explaining the mysteries of Realpolitik, answered that there were times when the pressure of circumstance did not permit the consideration of mere personalities.
Then realizing, perhaps, that he was getting nowhere, the President made the overture he had been banking on.
He did not suggest that Wheeler abandon his opposition. He was too practical for that. He took the line that their first joint object must be to prevent factionalism in the Democratic Party. He argued that, while there was no reason for the party to split on the court issue, a split could hardly be avoided if Democrats like Wheeler persisted in taking the leadership of the anti-Administration forces. Why no the Republicans fight in the front lines? Wheeler saw the suggestion's purpose at once. He well knew, and he was sure the President well knew, that only the fact that mere partisan feeling had been minimized by a Republican conspiracy of silence had saved the opposition from early defeat. He turned the President down flat, and the interview was over. The pair parted coldly, as men must when a truce has ended and they go to fight again.
That interview between the leaders of the two sides in the struggle rang the curtain up on the tremendous final act of the court drama. In thus bringing the President, the hero of the piece, onto the stage at the first, providence or whatever other force should have credit for the design of the play must be allowed to have shown an admirable sense of dramatic construction. The debate began in the Senate that same afternoon, and the President had but little part in the events immediately succeeding.
Their protagonist was Joseph T. Robinson, of Arkansas, Democratic leader of the Senate, doughtiest of the Administration field marshals on Capitol Hill, to whom the President had delegated entire authority over his forces on June 3rd. At that time the President had promised Robinson the place on the Supreme Court vacated by Justice Van Devanter, and it was with the furious, single-minded energy of a man whose life's ambition is about to be fulfilled, that Robinson had worked to re-form the President's battle lines in the weeks between June 3rd and July 6th, Things had looked bad when Robinson started, for there was a clear majority of the Senate against the President's original scheme to add six new justices to the Supreme Court.
But Robinson had wrought well. His first step had been to choose a compromise suggested by Carl A. Hatch, of New Mexico, empowering the President to appoint an extra justice who had passed the age of 75 and failed to retire, but forbidding more than one such appointment in any one year. Next, in a long series of personal interviews, he had dragooned 52 senators into promising to support the Hatch compromise. They were his majority, the army he counted on for victory. True, the army was lukewarm, most of it. True, many of his troops were upset by the strife within the Democratic Party. True also, he had lost the equivalent of a well-equipped division when disagreements with the President drove Vice-President Garner into self-imposed exile at Uvalde, Texas. Nevertheless, Robinson believed he could win, and so did the President. (pp. 20-21)
As for the opposition, they could number only 42 in their ranks, but they were 42 angrily determined fighters. If some of them were animated primarily by partisan hatred of the New Deal, there were many others among them who sincerely believed they were making a stand for the best things in American life. The men who wrote the famous report of the Senate Judiciary Committee were a fair cross-section of the opposition's more disinterested element. Four senators chiefly contributed to it - Borah, the Republican, all of whose reverence for the Constitution had been offended by the court plan; King, a consistent anti-New Deal Democrat; McCarran, accounted a moderate New Dealer; and Joseph C. O'Mahoney, of Wyoming, the man who actually wrote the document, a senator of progressive principles and great faith in the President's program, who had simply been unable to stomach court packing.
Moreover, if the opposition had but 42 sure votes, there were at least 20 senators who were willing to talk until doomsday to defeat the President and hi bill, even in its modified form. Such men as O'Maloney and Wheeler; Clark, of Missouri; Edward R. Burke, of Nebraska; Tydings, of Maryland; and Bailey, of North Carolina - and Borah; Johnson, of California; and Vandenberg, of Michigan, among the Republicans - had constituted themselves a sort of battalion of death. In the meetings of the opposition which immediately preceded July 6th, each of them announced that, if necessary, he would speak twice on the bill and twice on every one of the fifty amendments ready prepared under Burke's direction. If the President and Robinson's lines held firm, the oratory might well have followed on until November, 1938.
It was while Wheeler was still with the President that Joe Robinson rose in his place in the Senate to open the debate. The grueling job of rallying his forces for battle had told dreadfully on him, but his energies were not yet exhausted. He could still give his speech the impact of the charge of an infuriated bull. A great, red-faced, heavy-bodied man with a roaring voice, he stood in the crowded chamber, sawing the air with a curious mechanical gesture of his right arm, bellowing his challenges and threats at his enemies. Essentially he was an ordinary partisan politician, without remarkable intellectual equipment of much disinterestedness, but he had a kind of force, a special solidity and vitality, which made him a natural leader. His qualities compelled respect, and those who heard him that hot July afternoon realized it very thoroughly.
He was more bellicose than he had ever been before, and in the past the Senate had never dared to interrupt Robinson in a bellicose mood. The opposition, however, had a new kind of courage. They were in no frame of mind to sit silent under Robinson's furious denunciation, and they heckled him continually. Although he beat them off with the brutality for which he was famous, they always returned to the attack. As the strain increased, his flush deepened; his voice grew hoarse; his gestures were more violent. At last Sen. Royal S. Copeland, of New York, a doctor as well as a legislator, began to be really worried. Robinson was shouting his reply to another question when Copeland left his seat near by, crossed the well of the chamber, and whispered to the angered leader:
"Joe, the cause you're fighting for isn't worth your life. For God's sake, slow down."
Robinson paused, half turned to Copeland and muttered: "I know, but those fellows make me so damned angry with their questions."
Actually, Robinson could not afford to slow down, even after the Hecklers had drained their last reserves, even after he had thrown up his hands and exclaimed, "That's all, good-bye." During the next days the pressure of events constantly whipped him onward, ever harder, ever faster.
His trouble was that, of the 52 votes that was inn his majority, at least 8 had been promised very unwillingly. As time passed, the men who had made the promises began to lose what heart they had, and, as their defenses weakened, the opposition besieged them more tenaciously. By the efficient information service which was part of the opposition's extraordinary intramural lobbying system, every opposition senator knew the exact state of mind of every waverer in the Administration ranks. If you chanced to see a waverer in the Senate corridors and cloakrooms in those days, you were certain to see one or two members of the opposition pleading, persuading, exhorting or shaming the worried man into independence.
Meanwhile on the floor the debate continued. Hatch, Logan, Minton and Guffey made their appeals for the Administration, and Wheeler, McCarran, O'Mahoney and Bailey spoke for the opposition. As leader, Joe Robinson had to remain on the floor throughout each session, and that meant strengthening his weak lines was overtime work for the mornings and evenings. Although his troops were lukewarm, he had a few lieutenants he could depend on to give hear to the other men. His assistant leader, Alben W. Barkley, of Kentucky; the young New Dealer war hawks, Sherman Minton, of Indiana, Hugo Black, of Alabama, Lewis Schwellenbach, of Washington; and Bob La Follette, the Wisconsin Progressive - this quintet gave him such help as they could. Yet every day Robinson had to pour out his vitality until they were dry as mud puddles in midsummer.
The 7th, the 8th, the 9th, 10th and 11th of July hurried by. At last Robinson fell into a black mood. He was deeply hurt by the opposition's personal attacks on him provoked by his revival of ancient , forgotten Senate rules slightly limiting debate. He was distressed by the spectacle of the Democratic Party tearing itself to shreds on the floor. And he was cut closest to the quick of all by the attitude of the young men at the White House. Even before he had his compromise ready and his army recruited, the most daring in the circle of ambitious political intellectuals around the President had harried him with messages that if he failed he could not have his promised place on the Supreme Court. He knew then that they had no presidential authority for their threats, and now he knew, when word came that they thought he was lying down on his job, that the President did not agree with them. Yet the knowledge mad the wound no less painful.
And if Robinson's state of mind was dark, his physical condition was worse. His heart was troubling him constantly, and after a day or so of the debate he could hardly touch solid food. In the end he was living almost entirely on buttermilk.
At last he cracked under the strain. Late on the afternoon of July 12th he left the Senate chamber, looking haggard and upset, to rest for awhile on the Capitol portico outside the Vice-President's room. A few minutes later a page summoned Sherman Minton to join him there. Minton hurried out and found him in one of the old wicker rockers which the senators like to use on fair days. It was broiling summer weather, and Robinson was purple in the face, gasping for air and beating at his broad chest. Minton asked him solicitously what was wrong.
"I've got a terrible pain here." The words came between labored breaths. He indicated where the pain was by pressing his heart. Then, after a pause, he went on: "It hurts me so I can hardly stand it. Go and tell Alben Barkley to take over for the rest of the day. I've got to go to my room."
That was the moment when the President really lost his best general. Next morning Robinson tried to go back to his routine. He had a 9 o'clock appointment with an artist, who was to sketch and interview him. He managed to keep it, but he found he could not go on. A few minutes after the artist left him, he summoned Barkley, Minton and two or three other lieutenants, told them that he must rest, and asked Barkley to act as leader until he was better. Then he returned to the ovenlike little apartment in the Methodist Building, across the plaza from the Capitol, where he had lived for many years. Mrs. Robinson was away in Arkansas, and there was no one to nurse him. Always restless and irritable, he must have wandered up and down his narrow living room all day, cursing his own weakness, and wondering how the fight was going without him.
Perhaps it was a kind fate which spared him the knowledge of how the fight did go that afternoon. In the House, Rep. Hatton W. Sumners, of Texas, the shrewd, learned, stubborn chairman of the Judiciary Committee, who had checkmated the Administration there from the first, gave the court bill such a lambasting as it had not had in the whole course of the Senate debate. The House cheered Sumners wildly, which boded ill for the measure on that side, but that was not Robinson's business.
It was on the Senate floor that the inconspicuous event took place which would really have worried the sick leader. Senator Copeland was speaking when two men in the freshman row, where the new Democrats sat behind the Republicans, fell into conversation. One of them, Prentiss Brown, the serious, able senator from Michigan, was on Robinson's list of 52, and the other, Edwin Johnson, of Colorado, was counted by Robinson as a probable marginal vote. They were both waverers. Brown began to talk by revealing to Johnson that he had decided to waver, that he was ready to join the opposition in voting to recommit the court bill unless the President should be willing to offer a substitute involving no increase of the Supreme Court. Johnson agreed with him, and they concluded together that it was their best move to go to the President, tell him of their decision, warn him that he was fighting a losing battle, and plead with him to give in gracefully. To strengthen their hand, they invited two like-minded men who were sitting near them, Guy Gillette, of Iowa, and C.O. Andrews, of Florida, to join their delegation.
Gillette had already announced his adherence to the opposition, but on that afternoon of July 13th the Administration lost one hoped-for and two definitely-counted-on votes. The unnoticed little conference on the Senate floor marked the moment from which the court fight moved to its tremendous climax. It was the first in a chain of events so closely strung that every day of the fight until the last had its special meaning and, therefore, now deserves its special chronicle. The next day was:
July 14. The Robinson's maid arrived at the Methodist Building very early to set to work at once preparing the senator's scanty breakfast. His habit were as regular as clockwork, and by the time she had his coffee ready she expected him in the dining room. He made no sign. For a few minutes the maid waited, then thought he must be sleeping late and went to the bedroom to wake him. Her first hasty glance told her that the bed was empty; her second, that there was no one in the bathroom and, so far as she could see, no one in the bedroom either. Astonished, she ran out to the hall and rang for the elevator. Had the senator gone out, she asked the boy when the elevator came. At his answer that he had not seen Robinson since the day before, the maid grew suddenly terrified. She refused to re-enter the apartment alone, and so it was the elevator boy who led the way back to the bedroom.
There they found Joe Robinson lying beside his bed, where he could not be seen from the door. He was sprawled on the floor in his pajamas; his glasses were on the bed, and by his right hand, from which it must have dropped, was a copy of the Congressional Record. Evidently, he had been studying the debate of the day before when his heart finally failed him during the night.
The boy called Kennedy Rea, secretary of the Senate Appropriations Committee, and Chesley Jurney, Seargant of Arms of the Senate, both of whom lived in the same building. In thier turn the summoned Leslie Biffle, secretary of the Senate Majority and the man, of all others, who was Robinson's closest confidant and most-relied-on subordinate. Biffle immediately telephoned the White House offices, so early that no one was there to take his message except a minor clerk. Presumably, it was the clerk that told President Roosevelt that Robinson was dead.
It is impossible to tell just how the President took the news. Robinson's death meant clearly that the President must once more take over the leadership of the fight, and it meant, too, that the fight was lost. Whether or not the fight would have been lost anyway will never be decided. It must be remembered that at the very moment the news of Robinson's death was sinking into the President's mind, Brown, Johnson, Andrews and Gillette were meeting to decide how they should present their case to him and to arrange for an appointment. Considering the four senators' little conference on July 13th, it appears by hindsight that even Robinson could not have held his majority together, but without Robinson all hope was certainly gone. One can't help wondering how much of this the President realized, how much more the word that Robinson was gone meant to him than the loss of an old and faithful friend.
By the day's end he must have had some glimmer of what was to come, for the most indescribable confusion ensued on Capitol Hill. The opposition, jubilant as well as sorrowing, saw victory suddenly close at hand. The vision excited them to their single serious mistake, Wheeler's demand that the President withdraw his bill "lest he appear to be fighting against God."
As for the Administration forces, they were leaderless and without morale. The waverers' personal commitments to Robinson had been dissolved by his death, and there was no man left among the few enthusiasts faithful with sufficient force to beat the waverers back into line. And the succession to Robinson's post as Majority Leader suddenly proved to be horribly disruptive. There were two outstanding candidates, Pat Harrison, of Mississippi, who represented a measure of independence of the White House, and Barkley, the assistant leader, who stood for absolute obedience to the President's commands. Always insisting on a somewhat servile Congress, the White House had been backing Barkley from the moment when the promise of a Supreme Court place to Robinson had made the leadership a problem. Now, with Robinson dead and the succession a matter that must be settled at once, angry murmurs against White House interference were to be heard wherever senators forgathered. Already the factions within the Democratic Party had set to quarreling along lines far broader than the original division caused by the court fight.
July 15. Brown, Johnson, Gillette and Andrews presented themselves at the White House so early in the morning that the President had not gone over to his office. The four men were determined and hopeful. Each of them had a suggestion for a substitute for the court bill. Andrews's alone involved an increase in the court, for he favored a compromise establishing a bench with 11 members, the 10 associate justices to represent the ten Federal Judicial Circuits and the Chief Justice to be chosen at large. All of them, Andrews as well as the others, were firm in their intention to oppose the court bill as it then stood, whether or not the President would agree to offer a substitute.
They found the President in his comfortable White House study, sitting at his desk in his shirt sleeves. He, too, was determined - determined not to let them say what they had come to say. The talk began with a mention of Robinson's death. The President seized the lead in the conversation. Robinson's death recalled to him an incident in the 1928 campaign, when Alfred E. Smith had been rude to Robinson at a meeting of Democratic leaders. He took the incident as his text, and divided all Democrats into the Smiths and the Robinsons, the Tories and the believers in social progress. His listeners gathered that, in his view, every liberal Democrat must follow him as unquestionably as Joe Robinson had done, that only men fit to address the Liberty League would oppose him. The sermon lasted half an hour before Brown found an opportunity to break in. What he said when he did get his chance was the most admirable bit of dialogue in the drama of the court fight, for it was pat to the occasion, yet it summed up one of the queerest defects in the President's conduct of his campaign.
"Mr. President," said Brown, "it's the hardest thing in the world to tell you something you don't want to hear. It's the hardest thing in the world to give you bad news. But we're here to tell you we can't go along with the court bill."
Although the others took up the tale, although they pleaded and argued and did all that they could to convince him, the President remained cold. He had told Congress what he wanted, and he expected Congress to give it to him in some form or other, it didn't matter what. That was his attitude, the attitude he clung to all through the first and this second day after Robinson's death. In the end it proved an attitude that could not be maintained, simply because it was based on an angry rebellion against the plain facts of the situation.
The four senators left the White House, moved and distressed by what they saw ahead. A few hours later, Brown paid a call on Alben Barkley, partly to another errand and partly to advise him, as the active leader of the Senate Democrats, of what he and his friends had done. In Barkley's office he found Barkley, Minton and Schwellenbach conferring together. They before them a copy of a Washington afternoon newspaper, in which it was erroneously reported that the President had abandoned his court plan during Brown's and the others' morning call at the White House.
Sherman Minton brandished the paper in Brown's face and shouted at him angrily: "Where in the hell do you stand? We've got to count noses! The President's got to know!"
In his already excited state, Brown was in no mood to give Minton less than he got.
"Damn you," he said, "you don't need to tell the President where I stand; I've just got through telling him myself, and I want you to know I told him I couldn't go along.
The announcement was a bombshell to the trio of Administration leaders, and when Brown followed it up with the new that Johnson, Andrews and Gillette were ready to take the same stand, the belligerence of Minton and the two other melted away. They pleaded with Brown to change his mind, but all they could get from him was the same promise he had given the President - not to vote to recommit the court bill to the Judiciary Committee until it was clear that the White House would offer no substitute. Brown left the office after warning the trio solemnly against telling the President, "This thing is in the bag."
For a few minutes Barkley, Minton and Schwellenbach discussed the implications of what Brown had told them. Then Barkley telephoned the President and talked the matter over with him. The result was the "Dear Alben" letter, hastily composed by the President during the remainder of the afternoon. As it was finally released in the evening, the letter cut two ways. It clearly indicated that the President was behind Barkley for Majority Leader, and it slashed at those who were beginning to desert the Administration and demanded that the fight go on.
Shortly after the was made public Barkley himself, with Minton, Schwellenbach and Key Pittman, of Nevada, visited the President at the White House. It may have been at this meeting that the President ceased to rebel against the facts of the situation imposed on him by Robinson's death, and began to move toward his second attitude, that some means, any means, must be found to make it seem he was not beaten. Certainly the report the report his quartet of callers gave him was gloomy enough. Minton brought word that besides the senators who had been to the White House with Brown, three or four others were about to desert the Administration ranks, and Barkley agreed that the outlook was very dark. At the same time even the four Senate leaders had not quite grasped the full implications of the problem which confronted them. They thought they had an outside chance to cobble things up, rally their men and carry on the fight after Robinson's funeral. It was with a decision to try and follow this course that the meeting came to its close.
July 16. At 10am the dreary, rather makeshift of a state funeral started in the Senate Chamber. Later in the day the President came to three decisions. As decisions arrived at under great tension often are, two of them were unwise. His announcement of neutrality in the contest for the succession to the Majority Leadership was accepted as a patent fraud by the Harrison supporters whom it was intended to conciliate. And his refusal to make the trip to Arkansas for Robinson's burial was taken as a sign of ingratitude by some of the dead man's friends. His advisers, indeed, foresaw this and pressed him to go to Little Rock, but it was as though the President were disgusted with Congress and everything connected with it. First he said that the Far Eastern situation made it impossible for him to leave Washington, and then, curiously enough, considering his fondness for breaking precedents, he maintained that a bad precedent would be set if the President of the United States were to go to funeral trips except for the Vice-President, the Speaker of the House and the members of his Cabinet. He would not be persuaded.
The state of mind which produced his third decision was probably born the night before, as has been remarked. The decision was to accept any kind of substitute for his court bill, so long as it would allow him to tell the nation he had not been beaten in the court fight. The problem of finding such a substitute could, unfortunately, be solved only by a reductio ad absurdum. To permit any pretense of victory, a bill had to passed providing some additional justices on the Supreme Court, yet since Robinson's death there was a majority in the Senate against any extra justices at all.
The only way out seemed to be to exempt the present court and provide for the addition of justices in the future, thus flimsily preserving at least the "principle" of the court bill. Therefore, when Joseph B. Keenan, the Assistant Attorney General, boarded the Robinson funeral train in the evening, he had instructions to offer a bill along the lines of the Hatch compromise as adopted by Robinson, but with then present court excluded from its purview.
July 17. At the White House the President conferred with his advisers and waited for news from Keenan. On the train speeding through the flat prairie of middle America, a political caucus was going on from the baggage car behind the engine to the door of the flower-banked office car carrying Robinson's body at the rear. Thirty-odd senators, assorted representatives, and Keenean and two other agents for the White House, Postmaster General James A. Farley and Under Secretary of the Interior Charles West, were traveling on that train. The opposition lobbied busily in every compartment, while Keenan bore the brunt of the work for the Administration. He found the going hopelessly uphill, although he had reasons for optimism in a statement of Sen. Millard E. Tydings, of Maryland, that such a substitute as he wanted might be acceptable, and the statement's confirmation by no less a person than Wheeler himself. The trouble was that the statement had been made before Joe Robinson's death destroyed the morale of the Administration forces. Now, Keenan was turned down flat by every member of the opposition to whom he made his proposal. By the end of the day he knew that there was nothing to gain from his substitute.
July 18. At 9am sleepy senators and representatives, descended to the station platform at Little Rock, founf Vice-President Garner come to meet them. The old Texas fox had made a quick trip from Uvalde, with a purpose spurring him on. It had not been the court fight which drove him from Washington. His decision to leave grew out of his disgust with the President's handling of the labor situation and his failure to balance the budget. Nevertheless, he had watched with deep concern while the court fight slowly split the Democratic Party, and now, as he thought, he had returned to pick up the pieces. He led the congressional delegation to the burial services, at which they said goodbye to Joe Robinson. In the evening he went aboard the train as it left for Washington. Keenan stayed behind, to fly back to the capital and report his ill success to the White House.
July 19. Soon after breakfast Jack Garner began a series of conferences with representatives of both sides in the fight. The office car which had taken Robinson's body to Arkansas had been kept on the train for Garner's use, and so it was in the same apartment which had contained the coffin a short 24 hours before that Garner saw the senators. The scent of the flowers must almost have lingered in the upholstery, but there was nothing funeral in the genial realism with which Garner assessed the situation. By the day's end he was convinced the jig was up for the Administration.
By evening, the opposition had ample reason to be jubilant. Although Wheeler and his colleagues did not know it, Keenan had reported to the President, on his arrival in Washington, that even such a flimsy pretext of a bill on the old lines as had been hoped for was impracticable. Then during the day on the train, Prentiss Brown, Andrews, of Florida, and Overton, of Louisiana, had decided to hold a meeting of uncommitted senators as soon as they arrived in Washington., and that augured badly for the Administration. And in the afternoon, at Parkersburg, West Virginia, news reached the Train of a letter from Gov. Herbert H. Lehman, of New York, to Sen. Robert F. Wagner, attacking the court plan and asking Senator Wagner, as New York's representative, to vote against it. When the train pulled into Washington shortly before midnight, the members of the opposition went home in cheerful mood indeed.
July 20. Jack Garner marched up the White House steps before the morning coolness had left the air. The President received him at once, and greeted him with a great show of cordiality. Garner told him that he had come to talk about the court fight, and the President nodded acquiescently.
"Do you want it with the bark on or the bark off?" Garner asked.
The President replied he didn't understand the country phrase, and Garner explained that in his part of Texas people asked for it "with the bark off" if they wanted the naked truth, whereas if they desired their feelings be spared they asked to have it "with the bark on." The President threw back his head and laughed his hearty laugh. He would have it "with the bark off," then, he said.
He got it. Garner informed him bluntly that he was licked, and he had best fold his tent and steal way from the court issue as rapidly as possible. The President shrugged his shoulders. He was ready to accept Garner's appraisal of the situation. His rebellion against the facts of his situation was a thing of the past. The desperate effort to seem, at least, to win had failed. One more he had changed his attitude toward the state of affairs that Robinson's death imposed upon him. Now he was prepared for defeat. He knew that there was no way out of immediate humiliation, but he had made up his mind that, if he had to suffer, the men in Congress whom he held responsible would suffer doubly later on. He was convinced the people were still overwhelmingly with him. Although the truth is there were few evidences of popular enthusiasm for the court plan, he expected the voters to see him as a sort of martyr to the willfulness of an obstinate and disloyal Senate, and he counted on the voters' taking their feelings out on the appropriate senators. Therefore, he made no objection when Garner turned the conversation to the best method of liquidating the problem at once. After some talk, it was decided that Garner should spend the day on the Hill, feeling out how things stood, and return late in the afternoon with Alben Barkley, Pat Harrison and Key Pittman to plan out the next step.
The uncommited senators gathered in Prentiss Brown's suite in the Senate Office building a couple of hours after Garner left the President. Bulow, of South Dakota; Andrews; Herring, of Iowa; Johnson, of Colorado; Overton; Russell, of Georgia; Adams, of Colorado; and Brown made up the group. Various suggestions, such as a joint resolution to recommit the court bill to the Judiciary Committee, with instructions to the committee to prepare a constitutional amendment reorganizing the judiciary, were talked back and forth. At length it was obvious that in any case everyone there, except Russell, of Georgia, was ready to recommit. Bulow, the acute old countryman, interrupted the discussion.
"Jack Garner's office is right across the hall," he said. "He told the President this morning that he thought he was out on a limb and he's going down again to see him again this afternoon. How about going over and talking to him?"
Brown telephoned Garner to see if he was free, and five minutes later the whole group, still with the exception of Russell, trooped into the Texan's lair. Garner greeted them like long lost brothers - so warmly, in fact, that some of the senators suspected him of wondering whether he had oversold the President on his defeat, and being delighted to have his warning so quickly confirmed. He listened eagerly while they told him they were in no hurry, but that if, withing a reasonable time, the President did not offer a substitute bill involving no additional justices on the Supreme Court, they would all vote for recommittal.
It was about 5 o'clock when Garner carried the new to the President. He and Harrison, Barkley and Pittman found a surprisingly realistic Franklin Roosevelt. Once more Garner was allowed to dominate the discussion. It was taken for granted that the Supreme Court was out of the picture. Different face-saving expedients had been canvassed, and Harrison proposed that a sort of arbitration committee, made up of five Administration and five opposition senators, might be delegated to work out a substitute bill dealing with the lower courts. The President liked the proposal, but a final settlement of the matter was put off until after the vote on the Majority leadership next morning. The President said good night to them pleasantly enough. Garner left the White House so coolly in command of himself and the situation that he remembered to telephone Senator Wagner immediately, to warn him not to answer the Lehman letter.
July 21. The Democratic members of the Senate met for a vote on the leadership at 10am in the white marble Caucus Room of the Senate Office Building. That strange chamber, which looks as if it had been decorated by an expert in the confectionery architecture of wedding cakes, contained a deal of bitterness by the time the assembly was complete. To all the factional fury of the court fight had been added the anger of the Harrison supporters who were saying that the President had double-crossed Pat.
The Harrison men remembered the early White House pressure for Barkley and the White House announcement of neutrality. They knew that, the announcement notwithstanding, a three-cornered telephone conversation between a representative of the White House, a representative of the Kelly-Nash machine in Chicago, and Sen. William H. Dieterich, of Illinois, had taken place only the day before. Dieterich had told them that what he heard over the wire forced him to desert Harrison and vote for Barkley. They knew, too, of the zero-hour Administration effort to make Sen. Harry Truman, of Missouri, a Barkley voter. They were laughing, more than maliciously, at the story of how a telegram ostentatiously sent to Truman by the Pendergasts' Kansas City organization had been followed up by a telephone call telling him to pay no attention, to stick to Harrison.
The voting was by secret ballot, and the votes were counted one by one. With only the last ballot still unopened the count stood, Harrison, 37, Barkley, 37. Barkley bit through his pipestem while the teller was fumbling with the slip of paper's folds. Finally, he tore it open. It was for Barkley.
Jack Garner had been waiting eagerly for news. Word of Barkley's election was carried to him at once, and he acted without hesitating an instant. He went straight to the office of Senator Wheeler, where he was received with open arms.
Burt, you can write your own ticket," were his first words.
Thus it was that the Administration capitulated in the court fight. Wheeler wrote his ticket on the spot. The Supreme Court out of it; no roving judges in the lower courts and no Supreme Court proctor; no additional judges in the lower courts except on the basis of actual need - that was the ticket that Wheeler wrote. Nothing was left of the President's first sweeping measure, drawn so that it virtually subordinated the whole judiciary to the will of the White House, but a permission of the Attorney General to intervene in suits touching constitutional questions, a limitation on the lower courts' power to enjoin the Federal Government, and a provision for direct appeal of constitutional decisions from the lower to the high bench. Garner accepted what Wheeler said without argument, and asked only that the opposition spare the President the final humiliation of a recommittal before the substitute bill should be worked out. Had Pat Harrison, whom he trusted, been elected leader, Wheeler would probably conceded the point, but with Barkley, whom he regarded as the obedient servant of the White House, in charge of the Senate he was adamant.
"Nothing doing Jack," he said. "We're dealing with a bunch I don't trust. That bill must come off the calendar."
Garner, who had hurried to Wheeler because he well understood how Barkley's election would effect him, had nothing left to do but submit. The matter was settled and Garner and Wheeler parted. Funnily enough, at that very moment, Barkley and the President thought that they were settling the matter themselves. Barkley and Harrison had been asked to the White House for lunch, ostensibly to smoke the pipe of peace, actually to try to get Harrison's help in the coming debacle. Harrison preferred his own cigar to the peace pipe. He sat back, puffing and listening and making it very clear that he did not feel obliged to concern himself in any project to save the President's face. Therefore, it was Barkley who proposed that he had better see Wheeler and work something out. The President's only request was the bill should remain on the calendar, and it was with this as hi sine qua non that Barkley wen to call on the leader of the opposition. Rather naturally, he was unpleasantly surprised when Wheeler told him of his talk with Garner. He tried to protest, but Wheeler broke in. (pp. 110, 112)
"All right," he said, "if you want to leave it on the calendar, we'll go in tomorrow and move to recommit ourselves. We've got the votes, make no mistake about that."
Barkley had to give in, and he joined Wheeler in asking Ashurst, of Arizona, chairman of the Judiciary Committee, the glorious clown of the court-fight drama, to call his men together for the next morning.
July 22. The Judiciary Committee assembled at 10 o'clock, with Garner, Wheeler and Barkley also present. Every leading figure in the court fight, except the President, Joe Robinson, and the plan's original author, Attorney General Cummings, was there around the table. Garner opened the proceedings with a stump speech to the Democrats, calling upon them to bury the court bill and their animosities together as quickly as they could, "for the good of the country and the Democratic Party."
Then he turned to Wheeler; and while the others listened intently, the two men outlined the settlement they had made on the 21st. Joe O'Mahoney hastily noted down its provisions. Suddenly, Barkley tried to exert himself, with a vehement renewal of his protest that the bill should be allowed to stay on the calendar until the substitute was ready to be acted on. The opposition senators shouted him down, and even Garner showed some irritation. The discussion wandered for awhile, and finally Burke acted to bring things to a head, with a motion that the Judiciary Committee request the Senate to return the court bill to it for revision along the lines suggested. Once more Barkley and the Administration men tried to protest, and Ashurst, the old master of inconsistency, spoke up soothingly.
"Senators, senators, let the chair state that we did not meet here today to take any action," he said.
The natural reply that the Judiciary Committee was in full session and could do what it pleased came from half a dozen mouths. The Arizonan rose, grinning as usual, and made a low bow to the meeting.
"Quite right, gentlemen," he said, "Ashurst to Ashurst "
The Burke motion passed at once. Someone suggested that Barkley might propose the recommittal on the floor, but the leader, who was obviously horribly disturbed by the proceedings, hastily refused. Logan, of Kentucky, was deputed to do the job, and Joe O'Mahoney turned his notes over to him. As a tiny sop to the Administration's pride, it was agreed that the words "Supreme Court" need not be mentioned on the floor by Logan or anyone else at the meeting, and the gathering broke up on a note of peace and general relief when Garner promised there would be no political reprisals against Democratic members of the opposition and Barkley echoed him, significantly adding, however, "so far as I am personally concerned."
The rest is ancient history. A few minutes after the meeting ended, the Senate convened. A bill was up for consideration, and Logan had to wait on into the afternoon before he could offer his motion. There was dead silence when he spoke his little piece in his odd cracked voice. The word had got around that something important was coming, and an immense crowd jammed the galleries, but there was still dead silence when old Hiram Johnson, of California, rose in his place. He had been party to no agreement of the Judiciary Committee, and he asked his brutal question, "The Supreme Court is out of it?"
"The Supreme Court is out of it," replied Logan solemnly.
"Glory be to God!" said Johnson, and the galleries broke into a wild clapping. Only a few seconds later, the Logan motion passed by a vote of 70 to 21. The court fight was over, but the battle within the Democratic Party which set it off had only just begun. (pg. 112)
Comments: As far as the Constitution was concerned, it didn't matter what happened with the court bill, it's death was certain no matter how the court bill drama was acted out. The Supreme Court justices that FDR was able to appoint to the bench before death ended his presidential career were: (1) Hugo L. Black, 1937; (2) Stanley Reed, 1938; (3) Felix Frankfurter, 1939; (4) William O. Douglas, 1939; (5) Frank Murphy, 1940; (6) James Byrnes, 1941; (7) Robert Jackson, 1941; and (8) Wiley Rutledge, 1943. Hugo Black was a staunch New Dealer and one of the senators that were in favor of the court packing bill. Stanley Reed was the Solicitor General and helped to draft the court packing bill. Felix Frankfurter was one of the brain trust leaders that helped to draft the great mass of executive legislation that was rubber stamped by a servile Congress - all of this in violation of Article I, Section 1 of the Constitution. William O. Douglas served on the Securities and Exchange Commission before being appointed to the court. Frank Murphy was Attorney General before being appointed to the court. James Byrnes was a New Deal senator and close associate of FDR before being appointed to the court. Robert Jackson was Assistant Attorney General and was in favor of the court packing bill. FDR promoted him to Solicitor General and then Attorney General before he was appointed to the court. Wiley Rutledge spoke out in favor of FDR's court packing plan while dean of the University of Iowa Law School. FDR appointed him to the federal appellate court in 1939 where he proved that he would rule in favor of New Deal laws; hence he was elevated by FDR to the high court four years later in 1943. So, what do you think of such a court? Would you expect to get justice from it? Would you expect these justices to respect the truth and rule in favor of the Constitution? It turned out that FDR was able to pack the Supreme Court anyway, and all his appointments to the lower courts were no doubt of the same mind. In a speech by Senator Stephen A. Douglas, of Illinois, a Democrat, on July 17, 1858 at Springfield, Illinois, Douglas aptly described this type court that FDR formed with the approval of the Senate. Douglas stated:
But Mr. Lincoln intimates that there is another mode by which he can reverse the Dred Scott decision. How is that? Why, he is going to appeal to the people to elect a President who will appoint judges who will reverse the Dred Scott decision. Well, let us see how that is going to be done. First, he has to carry on his sectional organization, a party confined to the Free States, making war upon the slaveholding States until he gets a Republican President elected. ["He never will, sir."] I do not believe he ever will. But suppose he should; when that Republican President shall have taken his seat (Mr. Seward, for instance), will he then proceed to appoint judges? No! he will have to wait until the present judges die before he can do that, and perhaps his four years would be out before a majority of these judges found it agreeable to die; and it is very possible, too, that Mr. Lincoln's senatorial term would expire before these judges would be accommodating enough to die. If it should so happen I do not see a very great prospect for Mr. Lincoln to reverse the Dred Scott decision. But suppose they should die, then how are the new judges to be appointed? Why, the Republican President is to call upon the candidates and catechize them, and ask them, "How will you decide this case if I appoint you judge?" Suppose, for instance, Mr. Lincoln to be a candidate for a vacancy on the Supreme Bench to fill Chief Justice Taney's place and when he applied to Seward, the latter would say, "Mr. Lincoln, I cannot appoint you until I know how you will decide the Dred Scott case?" Mr. Lincoln tells him, and then asks him how he will decide Tom Jones's case, and Bill Wilson's case, and thus catechizes the judge as to how he will decide any case which may arise before him. Suppose you get a Supreme Court composed of such judges, who have been appointed by a partisan President upon their giving pledges how they would decide a case before it arose,what confidence would you have in such a court? Would not your Court be prostituted beneath the contempt of all mankind? What man would feel that his liberties were safe, his right of person or property was secure, if the Supreme Bench, that august tribunal, the highest on earth, was brought down to that low, dirty pool wherein the judges are to give pledges in advance how they will decide all the questions which may be brought before them? It is a proposition to make that Court the corrupt, unscrupulous tool of a political party. But Mr. Lincoln cannot conscientiously submit, he thinks, to the decision of a court composed of a majority of Democrats. If he cannot, how can he expect us to have confidence in a court composed of a majority of Republicans, selected for the purpose of deciding against the Democracy, and in favor of the Republicans? The very proposition carries with it the demoralization and degradation destructive of the judicial department of the Federal Government.
In May of 1937, two decisions were handed down by the Supreme Court that had challenged the Social Security Act. They were: Helvering v. Davis, 301 U.S. 619, and Chas. C. Steward Mach. Co. v. Davis, 301 U.S. 548. The Act was upheld by a 5-4 margin with strong dissenting opinions from justices McReynolds, Sutherland and Butler. Van Devanter agreed with the dissenters. It was McReynolds who said:
No defense is offered for the legislation under review upon the basis of emergency. The hypothesis is that hereafter it will continuously benefit unemployed members of a class. Forever, so far as we can see, the states are expected to function under federal direction concerning an internal matter. By the sanction of this adventure, the door is open for progressive inauguration of others of like kind under which it can hardly be expected that the states will retain genuine independence of action. And without independent states a Federal Union as contemplated by the Constitution becomes impossible.
The Social Security Act had nothing to do with an "emergency," and we've already seen that it's origins came from the Socialist Party, not the Democratic Party.
Justice Sutherland stated:
If we are to survive as the United States, the balance between the powers of the nation and those of the states must be maintained. There is grave danger in permitting it to dip in either direction, danger-if there were no other-in the precedent thereby set for further departures from the equipoise. The threat implicit in the present encroachment upon the administrative functions of the states is that greater encroachments, and encroachments upon other functions, will follow. [The word "equipoise" means "perfect balance."]
Sutherland was correct. Federal power over the people and the states has only grown since then. The Federal Government has become the rich man, and the states have become the beggars that gather the crumbs that fall from the rich man's table. In the majority opinion that upheld the Social Security Act in the Helvering case, we read that "The District Court held that the tax upon employees was not properly at issue, and that the tax upon employers was constitutional." You see, it was the position of the court that since an employer was before the court challenging the constitutionality of the act, they would not rule on the constitutionality of how the act operated upon employees. In other words, the act may be blatantly unconstitutional when applied to employees because it enslaves them, but constitutional when applied to an employer, but unless an employee is before the court, the court will not address that issue even though the employer in his case tries to bring it up. What a wonderful system of justice! So, after seeing this, I began researching the Supreme Court Reporters to try and find the case where an employee challenged the federal laws that imposed taxation upon his/her labor (wages). I didn't find this case until the 1991 term of the Supreme Court, and even then the constitutional issues were avoided because the court reversed convictions on criminal tax charges in the District court on the statutory ground of "willfulness." The case is Cheek v. U.S., 498 US 192. Cheek was an airline pilot who was a wage earner that bucked the system after studying income tax issues with a study group and concluded that wages were not withing the power of the Federal Government to tax. The Supreme Court ruled that Cheek did not act willfully in evading income taxes because of his beliefs. However, the court did say the following: "It is common ground that this Court, where possible, interprets congressional enactments so as to avoid raising serious constitutional questions." If there were no "serious constitutional questions" involved in taxing the labor of working people, then why did the court make this statement? In concluding my comments on the court fight articles, I shall quote the dissenting opinion of Justice Blackmun in the case, in which Justice Marshall joined:
The Court acknowledges that the conclusively established standard for willfulness under the applicable statutes is the "voluntary, intentional violation of a known legal duty." Ante, at 201. See United States v. Bishop, 412 U.S. 346, 360 (1963), and United States v. Pomponio, 429 U.S. 10, 12 (1976). That being so, it is incomprehensible to me how, in this day, more than 70 years after the institution of our present federal income tax system with the passage of the Revenue Act of 1913, 38 Stat. 166, any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections. One might note in passing that this particular taxpayer, after all, was a licensed pilot for one of our major commercial airlines; he presumably was a person of at least minimum intellectual competence.
Six days after the date of this issue, on October 22, 1937, George Lorimer died.