September 25, 1937 - Article - The 168 Days, The Ghost of Justice Robinson, by Joseph Alsop and Turner Catledge (part 2)

The death sentence of President Roosevelt's Supreme Court plan was spoken by Chief Justice Hughes. The occasion was the handing down of the court's five decisions upholding the Wagner Labor Relations Act; the date, Monday, April 12th.

With such a leading actor and such a setting - those squabby Numidian-marble columns, inept basreliefs, overpompous crimson velvet and makeshift white cotton curtains - it was as perfectly staged and as perfectly cast a little incident as American history can show. Its only defect was a trace of overtheatricality. Its ironies - the court's destruction of the President by giving him what he wanted - were just a trifle too cosmic. There was a suspicion of the Eugene O'Neill touch.

The President had little time, however, to criticize the dramatics of the incident when the tickers brought him the great news a few minutes later. For two years he had been demanding a liberal court. Two months before, he had taken radical steps to get a liberal court. His first reaction was instant anger.

The truth was that the news, with all its implications of danger to the court plan on which he had gambled so much, came as a severe shock to the President.

He and his subordinate strategists had been expecting the court to commit a sort of judicial harakiri. They had been counting on the justices for a series of conservative decisions, decisions which would have surely put a very different face on the President's fight for court packing. Instead, the court astonished the President, his advisers and most of the competent lawyers of the country.

The President was doubly astonished. Not only had his legal experts informed him that, in view of the court's past decisions, adverse holdings on the Wagner Act, the Social Security Act and the other great New Deal measures were foregone conclusions. The White House inner circle also believed it had a leak from the court itself. It was one of those fantastic things that can happen only in Washington. Justice McReynolds had said something at a private party. On its way through the cities whispering galleries, the remark had been magnified, so that the report at the White House was that McReynolds had loudly sworn that nothing, not even the President's threat to pack the high bench, could frighten the court's conservatives from their position blocking the New Deal's path. It is of such silly stuff that great political miscalculations are made, and the New Dealers had made one.

Angry and surprised as he was, the President was faced with the necessity for a prompt decision. There were three alternatives before him. He could announce that, since the court had liberalized itself, he would abandon his court plan, or he could intimate that, under the circumstances, he would be pleased to compromise on a smaller number of additional justices. Or he could call the court's move "political" and press on with his original bill. Had he chosen either of the first two courses, he would surely have saved himself, his great prestige, his power in his party and his command of Congress. Instead, with hardly a moment's hesitation, he chose the third, which left him fighting onward with no sure support except for his most slavish personal admirers, his most obedient partisan followers, and those mercenary congressional troops which the three P's of politics - pap, patronage and projects - always enabled him to hire. (pp. 20-21)

The President's choice and his quick public announcement rang the curtain up on the third of those five acts into which the court-plan drama was as neatly divided as any Elizabethan play. In Acts I and II, the plan had been born and offered to the nation - offered with every promise and hope of success. Now, in the third act, came the turn. In its opening scene the President missed his first great chance to retrieve all he was destined to lose. In its closing scene, after the retirement of Justice Van Devanter, his second chance was missed. Thereafter there was nothing left but compromise for the fourth act, and, for the fifth, the final tremendous climax of the death of the President's best leader, Sen. Joseph T. Robinson, of Arkansas, and the President's own utter defeat.

This is the story of the two lost chances and why they were lost.

There were not a few who were puzzled at the time, when they saw his chances come to the President, and saw the President muff them. One thing is sure: Those missed chances were the President's own responsibility, for he did not welcome advice. After the upholding of the Wagner Act, he made his choice almost without previous consultation, and then calmly called in his congressional leaders and informed them of his decision. Sen. James F. Byrnes put the question that was in many minds. "Why run for a train after you've caught it?" he asked a friend.

The South Carolina senator's question was his private comment on the go-ahead orders given by the President to the congressional leaders. A good many of the leaders agreed with Byrnes, but they were not in a position to advise the President. He had revealed his court plan to them on a take-it-or-leave-it basis. Yet shortly after the plan's announcement the leaders, deeply concerned in the violent split it was producing in the Democracy, had ventured to suggest compromise to the President. The President had laughed and pointedly ignored the suggestion. It was then that the leaders learned their lesson. It was then that the leaders learned their lesson. It was then that, sore and angry, they resolved to offer no more advice until it was asked for.

When he called them in after the Wagner decision, therefore, they merely listened to his orders. He told them that the fight must go on. He declared that the court's change of front was a political move, that the justices could not be depended on to stay liberal, and that, in any case, the whole reversal of the court's direction hung on one man's whim. He gave them to understand that nothing had happened to make him more receptive to suggestions. And so the leaders bowed themselves out, still worried and uncomprehending.

They might have expected what they got, had they taken into account the President's state of mind. It's central element was such an overconfidence as must come to any man after four years' unbroken success in great matters. The overconfidence which blinded the President to his two great chances to save himself was no new thing. A full year before, he had ended a discussion of one of the country's most important problems, with one of the country's most powerful men, by offhandedly telling his caller to forget about the matter. He had explained that, as a master of individual and crowd psychology, he was able to lead the nation and its Congress pretty much wherever he chose. He had intimated that sooner or later he would solve the problem by himself. And that was before the election, which Mr. Roosevelt took as a completely personal endorsement from the people of the United States. His view of his tremendous majority was revealed one day during the court fight, when he brushed aside advice from a congressional leader with the remark that he was the man the people had voted for on November 3rd.

With his overconfidence to drive the thought of defeat from his mind, it was only natural that the President should wish to press on, past a mere bloodless victory, to a resounding triumph over the Supreme Court and the large element in Congress which had rallied to the court's defense. In the first place, he was in the position of a monarch who believes a campaign so important that he supercedes his generals and takes the field himself. In the court fight, for the first time in the history of the New Deal, the President was in personal command of his forces, and his congressional leaders were rather out in the cold. Monarchs who take the field in person have a fondness of returning loaded down with laurels. Then, too, he regarded the court's long pre-election series of decisions against the New Deal as so many personal injuries, and he wanted to be avenged. Moreover, he and his advisers felt that if they could carry the court plan, opposition in Congress would be killed for good. And finally, in Senator Byrnes' phrase, he had not quite caught the train he wanted.

The truth seems to be that the President wanted something more than a liberal court, something which he disclosed during the struggle to Prof. Willam Zebina Ripley and Sen. Joseph C. O'Mahoney. The old liberal from Harvard and the young liberal from Wyoming had been summoned to the White House, to have their fears about the court plan soothed away. The found the President sitting at the big desk in his sunny oval office, among the flags and ship pictures. He radiated a good humor, greeting them genially, waving them into chairs with his long cigarette holder, asking them to tell him everything that was on their minds.

The two men took up their tale together. Both of them said they could understand why he had made his first attack on the court, but they asked why he would not compromise when he got the liberal majority he wanted on the bench. For proof they pointed to the Wagner decision.

The President's reply was to explain that a 5–4 majority was not enough for him. He said he wanted a court which would "co-operate" with the White House. He needed six new justices that would be friendly and approachable, men with whom he could confer, as man to man, on his great plans for social and economic reform and experiment. In his days as Governor of New York, he recalled, he had a close relationship with members of the New York Court of Appeals, and it had worked very well. He thought that where great questions were involved, it was in the public interest to have the court and the executive work things out together, rather than to have a long interval of uncertainty between the executive's action and the court's reaction. This ambition of the President was not a new one. Shortly before his inauguration on that wild day in March, 1933, he had revealed it to two friendly newspapermen. And in the very first few months of the New Deal he had suggested "co-operation" to Chief Justice Hughes, who had met the overture with anything but warmth.

Nevertheless, his ambition's revelation scarcely had the desired effect on Senator O'Mahoney and Professor Ripley. Their ideas of the American constitutional structure were rather more conventional than the President's. As they listened to the President calmly explaining what he wanted, they could not forget the doctrine of separate powers. They answered him as best they might, but they were so astonished that when they left the cheerful office they took the trouble to compare notes on what they had heard. Eventually, what they had heard was heard by others, and the leaders of the opposition to the court plan accepted it as the best proof of their fears.

Besides the President's state of mind, there was one outside factor which had its weight in his decision to press on- his two-year-old promise to Senator Robinson to give him the first Supreme Court vacancy which occurred. Just how the promise came to be given may never be known. Perhaps it was to still a momentary doubt arising from Joe Robinson's essential conservatism. Perhaps it was a reward for good work well done. At any rate, it had been given, and so irrevocably that the President had asked Republican Senate Leader Charles L. McNary, of Oregon, Robinson's close friend, for assurance through a third person that Robinson's appointment would not be opposed in the Senate. (pp. 21, 44)

The two-year-old promise to Robinson and the President's overconfidence were the minor and major themes of the central action of the court drama. Always his optimism drove the President too far onward, and whenever he showed signs of wanting to call a halt, there was his promise to Robinson to spur him on. In the choice of course at the time of the Wagner decision, the promise to Robinson was merely an influence. When Justice Van Devanter's retirement gave the President his second chance, it was deciding.

The trouble was that the President and the ambitious young intellectuals around him could not forget Robinson's conservative past. They lumped him in with all the other powerful Southerners who were still, in those days, going along with the New Deal for reasons of political convenience. The President's intimate advisers, and to a large degree the President himself, thought of the Southern group as a pack of dust-stained politicians, good enough to lead Congress, but unwarmed by an adequate flame of idealism. They suspected that the Southerners would revert to their original conservatism just as soon as political necessity permitted it, and they felt that there was no place in which Robinson would be more likely to revert than in the protected security of the high bench.

At the same time, the White House knew that Robinson must be given the first vacancy arising from the retirement, resignation or death of one of the sitting justices. More than one vacancy in the near future could hardly be counted on. Therefore, additional justices were necessary to offset the Robinson appointment when it had to be made. There was, of course, the compromise of two extra justices instead of six. But at the White House it was remembered that the court plan was supposed to have comfortable majorities in both Houses of Congress. In march, Robinson reported that there were 54 votes in the Senate, and from the House had come word that it had a margin of 100. If additional justices were necessary, then why back down at all? Why not drive forward to one of the greatest victories any Administration ever had? So they reasoned, and so the President failed to take his first great chance to save himself.

But driving forward was impossible. None of the White House inner circle realized it at the time, but the Wagner decision put the Administration permanently on the defensive, by destroying the only convincing argument for the court plan - that the court must be liberalized. Not only had they lost their best argument; they were losing their best allies, the labor lobbyists on whom they relied for a great pressure campaign on the Hill. The Administration forces could no longer attack, and the opposition, stronger every day, smartly commanded by a steering committee led by Sen. Burton K. Wheeler, of Montana, was able to carry on a cruel guerrilla warfare against them. Such was the state of affairs throughout the interval between the President's two great chances.

They worked hard, these men who were the President's advisers, his eyes and ears and hands during the first three acts of the court fight. They felt the burden of their responsibility, for the President had passed over his generals, his congressional leaders, and chosen them to do his work for him on this great occasion when he took the field in person. Tom Corcoran, young brain truster, and Joseph B. Keenan, Assistant to the Attorney General, had been told off to handle the Senate together. Under Secretary of the Interior Charles West, chief White House lobbyist at the Capitol, was in charge of the House. James Roosevelt shared with his fellow secretary, Stephen Early, the duty of maintaining contact with Robinson and the other congressional potentates. Charles Michelson, the Democracy's ghost writer and strategist, was general idea man, and occasionally Postmaster General Farley lent a hand. The little group met at the White House almost every day, sometimes in the early morning, sometimes for lunch, sometimes after a day's work among the nation's legislators. (Note: I would have called them ex-legislators) Every day they reported to the President.

Their first effort after the Wagner decision was to blast the bill out of the Senate Judiciary Committee, bring it on to the floor and get a vote on it as soon as possible. They sensed the dangers of their defensive position and they tried hard to avert them. Unfortunately for them, however, the man they had to deal with if they wanted to hurry their bill along was Ashurst, of Arizona, chairman of the Senate Judiciary Committee, whose motto was: "No haste, no hurry, no waste, no worry."

Senator Ashurst was the great comic figure in the court-bill drama. The senator was no ordinary clown, but one worthy of the play. Indeed, the senator was two clowns in one, a sort of split personality. In his first incarnation he exhibited the pomposities of Malvolio; in his second he was Mercutio, giggling acidly at his Malvolio foolishness of two minutes before. "The prelude to tyranny," was what he called court-packing only a few days before the President's plan was announced; on the day of its announcement he signified his approval in a one-line statement; and thereafter he carried with him printed copies of an oration on the beauties of inconsistency, for distribution to all and sundry. He used to tell witnesses caught in contradictions that inconsistency was "one of life's greatest virtues."

Poor Tom Corcoran and Joe Keenan never knew where to find such a man. Time and time again they thought they had pinned him down; time and again they heard his mocking giggle and realized he had eluded them. First the hearings ran on to seven weeks, and then the Judiciary Committee went into executive session which seemed interminable until it did terminate on May 18th, three months and thirteen days from the date of the bill's introduction. Uncertainty had begun to breed suspicion in the inner circle, and the President's advisers, confronted with Senator Ashurst's committee's endless delays, suspected him of conducting an endless filibuster against the court bill. Meanwhile, the senator enjoyed himself to the full, being courtly and giggling at his own courtliness by turns. It was during this period that he received a letter from a constituent, fulsomely praising his heroic stand on the President's bill. He replied with two words: "Which stand?" (pp. 44, 47)

The opposition took full advantage of the Judiciary Committee's delays. Under the management of Sen. Edward R. Burke, of Nebraska, opposition witnesses, all carefully chosen for their liberal affiliations, followed one another endlessly on the committee's witness stand. Opposition senators, Wheeler, Burke, Van Nuys, of Indiana, Walsh, of Massachusetts, and many others, stumped the country as the opposition senators had done at the time of the very similar League-of-Nations fight. The opposition steering committee had an efficient espionage service, an effective apparatus of research, and, in the senators themselves, a set of lobbyists more useful than any entrenched interest or pressure group has ever been able to hire. All the members of the opposition were active, and most of them were confident - they were men fighting for what they believed in at considerable probable sacrifice to themselves. Only the Republicans lay low, avoiding any utterances which might stir up partisan feelings among wavering Democrats.

In the little council of war at the White House there were some who did not share the President's serene optimism, some who saw how successful the opposition strategy was proving. Keenan invariably estimated the court bill's strength in the Senate well below the figure accepted by the others, and West was never confident, either. All of them could understand that things were going badly, and the daily conferences at the White House were much occupied with schemes to stem the tide.

One scheme was to break the Senate deadlock by turning to the House. There the left-winger, Maury Maverick, of Texas, had got his name tacked on to the original bill by seizing a mimeographed copy, scribbling his signature on it and dropping it in the bill hopper half a minute after the measure arrived at the Capitol. Maverick was not overpopular with his fellows, and dealing with a Maverick bill seemed an unnecessary handicap. Therefore the first step in the scheme was to get Rep. Fred Vinson, of Kentucky, to introduce a slightly revised bill. The war council figured it would be easy enough to obtain enough House members' signatures to a petition to bring a Vinson bill out of the hostile House Judiciary Committee. But Speaker Bankhead and Majority Leader Sam Rayburn were so infuriated by the effort to make the House do the dirty work that the scheme was abandoned. Other schemes more or less feasible were suggested, discussed and dropped during those April days.

All the while the war council hoped that pressure from the country, strong enough to put their bill over, would materialize. The President's answer to senators and representatives who mentioned the immense volume of mail protesting the court plan was always that they did not know the country as he did, that the country was behind him and him alone. Nevertheless, no pressure came. The farmers remained at home, quietly hoeing their fields, and the labor people, who would have swarmed over Capital Hill like angry wasps if the Wagner Act had been thrown out, forgot the court plan in the fury of their intramural squabbling. The war council had nothing to do but try to supply pressure of its own.

All through April and May, while the Administration was making its last convulsive effort to hold its troops in line, the Capitol corridors buzzed with stories of Administration pressure. Plenty of them were false or overdrawn, but plenty of them were true too. The bargain with one senator from the industrial Midwest, who was allowed to nominate a Federal Judge or so for his promise top go along, was almost a matter of public record, and it was know generally that judicial patronage was being rather freely used in other cases.

Projects were another weapon. In one case punishment was administered and reward was given simultaneously. Before the court fight, Senator Wheeler had virtually been promised the $17,000,000 Buffalo Rapids Dam for his state, but when Wheeler went into opposition, Montana was not deprived of its dam. Instead, Sen. James Murray, Wheeler's colleague, was called down to the White House and permitted to announce the new candy from the steps. Fires back home were industriously built under recalcitrant senators. Their enemies were offered fat jobs. Members of their local part machines were warned that unless the senators changes their stands, no more pap, patronage and projects. The national Democratic organization moved ponderously into the struggle, and all sorts of minor propaganda groups were set to yapping in the districts.

The quality of the whole business was summed up in Postmaster General Farley's remark to a group of newspapermen in the hall of the White House offices. He was suggesting that sooner or later Senator O'Mahoney and Sen. Pat McCarran, of Nevada, both of who were veering toward the opposition, would return to the Administration fold. Actually, he made two of the court plan's bitterest and most determined enemies.

"When Senator Mahoney comes around for help on a sugar bill," he said, "his conscience won't be bothering him then, will it? Neither will Senator McCarran's when he wants something for his state. It's all in the point of view."

Meanwhile, Although the Administration war council was having trouble with its recruiting, the opposition was having none. At last only the President remained an optimist. He had a peculiar belief that, if worst came to worst, he could always muster an adequate number of votes by appealing to the senators personally. Indeed, he was rather impatient of anything but optimism in those around him, and when anyone dared to predict trouble, he would smile and look out the window.

Even his own war council could not share his hopefulness. Their shrewdest scheme for retrieving the situation was borne of their gloom. Tom Corcoran, Assistant Attorney General Robert H. Jackson, who was an occasional adviser, Joe Keenan and West talked matters over. Their immediate chances of success, they decided, were growing steadily dimmer. A new restiveness was spreading was spreading so fast in Congress that the Democratic Party appeared to be publicly disintegrating. No good end could be served by continuing to press for action on the court plan. They agreed that the best way to handle the problem would be to let the plan drop for the present, with an announcement that it would be taken up at the next session. Thus, they felt, they would have time to rally their forces, arouse the labor groups and consolidate their position, while the fervor of opposition would cool with the passing months, and a sword of Damocles would still hang over the court.

The President had already left on his Texas fishing trip when Corcoran and Keenan, Jackson and West matured their scheme. It was while he was away also, that a move to save the situation was made by the congressional leaders. Since they believed their advice unwanted, these men had been pretty much out of touch with the President all through April. They had done their routine duties and let it go at that. Then, while the President was catching his tarpon under the gulf sun, they could stand it no longer.

Early in May, Joe Robinson, Pat Harrison, of Mississippi, and Alben W. Barkley, of Kentucky, invited Jimmy Roosevelt to lunch with them in the private office of Col. Edwin A. Halsey, Secretary of the Senate. At the lunch, Robinson and Harrison and Barkley told Jimmy the unvarnished truth as they saw it. In the first place, they said, if the President continued to insist on his original plan for six additional justices, he would be beaten. In the second, they warned him that the bill, with all the bitterness it had aroused, was raising hell with the Democratic Party. They besought him to make the President see reason, to persuade him not to run his head into a stone wall. They asked to be allowed to handle the bill themselves, and they promised to do their level best for the President. Finally, they insisted that Jimmy take their message to the President before his return to Washington. Robinson was the spokesman.

"Mr. Roosevelt," he said, "you tell your papa that he'd better leave this whole thing to us to get what we can out of it. We'll do our best for him."

How Jimmy Roosevelt reacted to this interview is not known. Nevertheless, it is certain that in the White House inner circle which he most frequented, the view was that the congressional leaders were defeatists. The President himself, on one occasion, had applied that exact word to them in conversation with another adviser. He was explaining that he could not rely on the leader's advice. He told the adviser that in September, during the campaign, when the Democracy's congressional bigwigs visited him in Hyde Park, he had had to spend all afternoon allaying their fears and convincing them that a triumph was in store. Why humor such a proved pessimist, the President had asked. Either because he was infected with his father's opinion, or simply because he did not wish to act on his own, Jimmy Roosevelt called a luncheon meeting of the inner circle for the next day.

The whole group gathered at the White House. Corcoran, Keenan, West, Michelson and Early were all there, and Attorney General Homer S. Cummings had also been invited. Jimmy told them of his talk with Robinson, Harrison and Barkley, and in this case the inner circle agreed with the leaders on the Hill. All the men at the luncheon urged Jimmy to give Robinson's mesage to the President without softening it in any detail. Some of those present were so eager to see the word passed on that they even tried to reach the President by telephone, but they found he was at sea. The next suggestion was that Jimmy fly to Galveston, but it was thought that such a step would be too conspicuous. At length it was decided that Jimmy should go out to Indianapolis with Jim Farley, to meet the President on his way home. (pp. 47-48)

A good many members of the inner circle were lighter-hearted when they left that luncheon table, for they saw a dawning of hope of a solution. Corcoran and Keenan and West must have believed that here was their great chance of promoting the scheme of letting the bill go over. The meeting broke up at once, and only Cummings lingered on with Jimmy; Cummings, the proud author of the plan to pack the court, the only man with personal reasons for wishing it to go through intact. Neither Cummings nor Jimmy has revealed what was said in private conversation, but some suspect that Cummings persuaded the President's son to forget the advice of the meeting, and to soften the leaders' message, after all. Whatever happened, the President returned to Washington still, apparently, determined to fight on.

His first action was to summon Robinson, Bankhead and Rayburn. To them he announced that the fight must go on. Once more he laughed at their fears, and this time he emphasized his intentions by putting the court bill at the top of his list of legislative "musts." What is more, he used a sort of indirect threat to ginger them up in their determination to get him what he wanted. Naturally, such delicate matters are vaguely put, but he left them with a clear impression. They understood him to say they could and should get him the court bill, but if they failed, he would still be content, for then he would be able to take the issue to the country in 1938, or even 1940.

They veiled that intimation that the President might not be through in 1940 upset the leaders pretty completely. So did the President's statement to them that they did not know what was going on in their own districts. He flatly told Sam Rayburn that, having visited his part of Texas, he could assure him the sentiments for the bill was very strong, whereas Rayburn, one of the veterans of Congress, believed that it was not. Robinson had additional cause to be disturbed and irritated, for he was convinced that Jimmy Roosevelt had failed to repeat his message to the President with all its black emphasis. All in all, it was not a cheerful trio returning to the Hill that day.

Events moved very rapidly in those days. The President got back from Texas at the end of the second week in May, and he saw Robinson, Bankhead and Rayburn the same afternoon. His orders to them were a great disappointment to the members of the White House inner circle who agreed with the leaders about the darkness of the outlook, but Corcoran and Keenan, West and Jackson did not give up.

After waiting a day or so, they presented their scheme to the President. In the brief interval, perhaps, the fears of the leaders had had time to sink into the President's mind. Moreover, the Corcoran-Keenan-West-Jackson scheme was more appealing than the immediate compromise which Robinson sought. It allowed time to harry the opposition and to rally the Administration forces. It concealed nothing, but promised instead to give the President his bill intact at the next session. It permitted him to make an announcement that, since the court had reversed itself, he was in no hurry, so long as he could keep a threat hanging over the court to prevent another reversal.

At any rate, the President was far more amenable. He said that he liked the scheme, and would consider it very seriously. He gave the impression that he might well resort to it in the near future. The men who had hatched the scheme breathed sighs of relief - sighs which were breathed too soon. The trouble was while the excited discussions were in progress, the opposition had already prepared the event which was to destroy the great scheme. To be sure, it was also the event that gave the President his second chance to save himself, but the President was ready for the Corcoran-Keenan-West-Jackson scheme, where he was completely unready to seize his chance.

Throughout most of the fight the opposition senators were in pretty close touch with certain members of the Supreme Court, and one strong faction among them, headed by Senator Burke, desired to use these contacts to prevent any resignations or retirements from the bench. They were the die-hards, greedy for an absolute victory over the President. The two most important members of the opposition, Senator Wheeler and Sen. William E. Borah, of Idaho, were, however, of a different opinion. Their one desire was to prevent the packing of the court, and they believed a retirement or so would weaken the President's case almost as much as the court's change of front in the Wagner decision had done. Borah, an intimate friend of Justice Van Devanter's, knew that the justice was anxious to retire. He told Wheeler about it, and they schemed the thing out together. Borah dropped a hint to Van Devanter that his retirement would strengthen the opposition, and, after some consideration, the justice decided to leave the bench. About the same time the opposition achieved an absolute majority on the Judiciary Committee, O'Mahoney, McCarran and Hatch, three of the committee's four uncommited members, plumped against the bill.

With this latest development to give him assurance, Senator Wheeler made an overture to the Administration. Naturally, he had learned from Senator Borah of Justice Van Devanter's decision. Through a third party he passed the word along to Charles West, with a message that the time had come to compromise. Wheeler's suggestion was that the President announce himself satisfied with Van Devanter's retirement , so long as he got long-term reform in the shape of the Wheeler amendment permitting Congress to override court decisions by a two-thirds vote after an intervening election. The suggestion was refused, partly on the ground that Wheeler, regarded as the blackest of the Democratic traitors, ought not to be allowed to get any glory out of the court fight.

For the day or so they had to wait, the war council hoped against hope that Wheeler's news was untrue. West must have received the tip with dismay, for it meant just one thing - that the scheme to let the bill go over must be abandoned, for it would have confronted the President with the prompt necessity of putting Joe Robinson on the court alone, without offsetting appointments. (pp. 48, 50)

Thus matters were at a standstill on the morning of May 18th, when the President received Justice Van Devanter's letter while he was breakfasting in bed. Whether or not it was by prearrangement, it was only two hours later that the Senate Judiciary Committee met to vote, 10 to 8, to report the President's bill unfavorably, with a recommendation that "it do not pass." The committee action merely underlined the importance of the opportunity offered by the Van Devanter letter. After the decision on the Wagner Act, the President had publicly announced that a 5-4 liberal majority on the court was "too uncertain." He had argued that it could not be depended on, since the whole matter hung on one man.

That argument was now also destroyed, and, so far as the public could see, there was no reason why the President should not be content with the opportunity to increase the liberal majority on the court to six.

Of course, that was not the real chance to save himself which Van Devanter's retirement gave the President. Robinson had to be appointed, and the chance was for a quick compromise, with a couple of extra justices, and a good face put on the whole business. Yet the President muffed it.

The key to his mistake was to be found that same day in the Senate chamber, where an extraordinary scene was being enacted. Joe Robinson, grinning and thoroughly happy for the first time in the history of the court fight, was holding a sort of reception at his desk in the front row. One after another his colleagues, both Democratic and Republican, bustled up to congratulate him on the promotion they believed the Van Devanter retirement would surely bring their friend. They clapped him on the back, they put their arms around his shoulders, they pump-handled hum energetically, they called him "Mr. Justice." The whole Senate was aware of the President's promise to Robinson and pretty nearly ever Senator was determined the President should redeem it.

The White House saw the state of affairs with sickening clarity. Steve Early tried to be jaunty with his comment, "One down and five to go," but there was no jauntiness in private. They seemed to have found their situation so hopelessly uncomfortable that they knew no way to turn. Toward Robinson they behaved as though they were a newly rich family, ashamed to allow a shabby poor relation to dine with them in public. Otherwise, for several days, they merely wriggled on the hook. One or two of the bright young men began to put the word around that Robinson wouldn't be appointed, although they certainly never had any such assurance from the President. When that set off a loud explosion, they hurriedly sent out a contradictory report that the place was safe for old Joe. Meanwhile, they said absolutely nothing to Robinson. It seems incredible now, this failure to do the handsome thing, but probably the White House was infected with a sort of nervous irritation at being put on the spot.

At any rate, the failure to do gracefully what had to be done anyway proved quite disastrous. As had been pointed out, a quick compromise was feasible after the Van Devanter retirement. The pleasure of the Senate at seeing old Joe get his heart's desire might have been brought into play. The forces of the Administration might have been rallied while they were still in a rallying mood. The President might have braved things out, proclaiming the appointment of that great liberal, Joe Robinson, and two extra justices would give him an ample majority. All that was needed was for the President to call old Joe down to the White House, and publicly vest him with Justice Van Devanter's cast-off robes. After that it would have been easy.

Instead the White House enraged Joe Robinson by making no sign. To be sure, Jim Farley telephoned him after a few days and tell him to "think no more about it," that the place was surely his; but what Robinson wanted was a public recognition of his services. Meditating on his four and one half years of complete faithfulness to the President, nursing his grievance, he made up his mind in anger. If the White House made no sign to him, he would make no sign to the White House. If the President desired to communicate with his strongest officer on the Hill, he would have to make the overture.

Among his friends Robinson was perfectly frank about his hurt and his decision. Several days after the Van Devanter retirement, Senator Byrd, of Virginia, asked him if he would like the Virginia congressional delegation's unanimous endorsement for the Supreme Court. Joe was almost childishly pleased with the offer. Byrd and Carter Glass quickly arranged the matter together, and the endorsement was made public the same evening. Next day, as soon as Joe saw Byrd, he hurried up to thank him.

"Harry," he said, "I can't tell you what it means to me to have fellows like you and Carter Glass come out for me. It's moved me very deeply these last days to see how many friends I have. Why, I tell you, Harry, everybody's told me they're for me except that fellow in the White House, and I swear I won't say a word to him until he says it first to me."

The result was that Robinson was completely out of touch with the White House for two vitally important weeks. In a way, the situation was ludicrous, but to the main actors in it, it was tragic. As the days passed and Joe still kept the White House in sort of a one-man Coventry, the President and his advisers grew more and more nervous. After all, Joe Robinson was their chief strength in the Senate, and they could not allow an estrangement to grow up. At the same time, they had to come to a definite decision that there must be a couple of extra court places for recognized liberal thinkers to balance Joe's appointment, and that was horribly embarrassing to tell Joe.

At first they thought it would be best for the President to call in Joe and tell him frankly what had been decided. Then they realized that their delay had so infuriated Robinson that if the President took any such line with him, an explosion loud and violent enough to blow the court plan and the Administration's congressional machine sky-high together would surely follow. So they had recourse to the old device of a mutual friend. A messenger was sent to Joe to explain the White House attitude. It was a pretty bitter pill for Robinson to have to swallow, hearing that the President believed that other appointments were needed to make his own look respectable. But after some grumbling, he swallowed it.

The White House settled down to wait for Joe. Joe never showed up, however. More days passed and still there was no word from Joe, until the White House understood that nothing less than a definite invitation would satisfy him. Once again the inner circle canvassed the situation. Luckily, a patronage matter in which Joe was concerned was hanging in the fire. It was decided that Jimmy Roosevelt should visit him in his office, ostensibly to talk the patronage matter over, and that an invitation to the White House should be casually slipped into the conversation after Joe had been promised whatever it is he wanted. Accordingly, Jimmy did visit Joe. Joe received him pleasantly enough, and the patronage matter was soon settled. Then Jimmy remarked: "Father's been wishing you would come see him, senator. In fact, he's rather hurt that you've stayed away so long."

Joe replied gruffly that he had been embarrassed about visiting the President, that he feared to seem to seek the Van Devanter place. Jimmy replied that Joe's feeling was ridiculous, that the President would never think anything so foolish, and, as the prearranged scheme was, he reached for the telephone. In a moment he had the President on the wire. The President made a great joke of Joe's hesitations, and asked him to call that very evening after dinner.

The President's talk with Robinson that night of June 3rd marked the end of a phase in the court fight just as clearly as the Wagner decision did. At the Wagner decision the tide had turned against the President, be had thought he could stem its flow by ordering it back. Now at last he realized that he was wrong. For the first time he acknowledged the possibility of defeat, and, in acknowledging it, he relinquished his personal command of the fight and passed his field marshal's baton to Joe Robinson. The President had acted at last, but he had acted too late. His last chance was gone.

The course of the talk at the White House was simple enough. The state of affairs explained to Robinson by the White House messenger was taken as a foregone conclusion. With it as a point of departure, the President and Joe discussed the whole situation. Robinson told the President that the Senate would surely beat him on his original bill. The President asked for advice, and Joe suggested he be allowed to settle matters as best he could. The President assented, and after a brief discussion of possible compromises the talk was over. Joe Robinson left the White House a happy man. When he hinted to newspapermen on the steps that compromise was in the air, he was beaming from ear to ear.

That evening in June the 119th day of the court fight's 168 was drawing to its close. On a hot July morning only 41 days later, Joe Robinson was found sprawled on the floor of his ovenlike apartment bedroom, still clutching a copy of the Congressional Record. He had arranged his compromise; he had made his list of votes: he had obtained his personal commitments from the senators - and then his death released the senators from their commitments. (pg. 50)

Comments: It was Ben Franklin who said that "the family of fools in ancient." In a documentary on FDR that was on the History Channel in 2005, Harry Truman was reported to have responded to a question by a journalist after Truman's presidency was over. The question was what he thought about Franklin Roosevelt. It was reported that Truman paused for a few seconds before answering the question, then he said: "Franklin Roosevelt was cold - very, very cold. He didn't care about you, he didn't care about me or anyone else." Joe Robinson should have know that FDR didn't keep his promises. It was part of the record. It is clear that FDR thought that his complete court bill would pass. If it did, then Robinson's influence on the court would have been a moot point since he would have been one of six new justices. But to replace Van Devanter with Robinson and leave the court at nine justices wasn't what FDR had in mind. Joe Robinson's death solved that problem. We can also see that FDR indicated that he had no intention of limiting his presidency to two terms, as had been the tradition since the first president, George Washington. A majority of people saw to it that FDR remained in power until his death on April 12, 1945. The train that carried FDR's dead body from Warm Springs, Georgia to Washington, D.C. moved slowly along the tracks while thousands of tearful people watching the train pass by mourned the death of their beloved king.

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