Court Packing Plan: Hughes Checkmates the President
Even FDR can't win them all.
The Supreme Court reorganization legislation is in a very bad way on Capitol Hill, and the President has only himself to blame. Two months ago the program had an assured majority of six in the Senate and from fifty to seventy-five in the House. Today the original six-judge bill is entirely washed up, and the prospects even of a compromise on a two-judge basis are none too bright. Finally aroused to the danger of damaging defeat which faces him, the President is bestirring himself and cracking the whip. He probably will succeed in preventing a complete rout, but he is in the tightest spot of his incumbency, and if he emerges with even part of his skin he can count himself lucky.
For a highly touted political wizard the President's generalship on the court legislation has been a brilliant flop. His opening maneuvers had all the elements of dynamic leadership and astute strategy—surprise, boldness, and aggressiveness. He sprang his plan without warning, catching the opposition off guard and unprepared. While it was still floundering around, disorganized and leaderless, he followed up his offensive with two smashing radio attacks. The situation was clearly in his hands. He had only to push home his drive by forcing speedy legislative action. Instead, Mr. Roosevelt stopped dead in his tracks and amiably let the opposition rally its cohorts and launch a shattering counter-attack. Every dictate of ordinary horse sense called for starting the bill through the legislative mill in the House. That was, and still is, the weak point of the opposition. The chamber's limited-debate rules and general amenability to party Control lend themselves readily to parliamentary manipulation by a forceful and determined leadership. Committee hearings could have been rushed and the bill jammed through the House in a few days. Then with this okay in his hands, the President would have been in a powerful position to deal with the Senate. For one thing, the fence straddlers and waverers there would have been less inclined to rebel. Also, on the ground that public views already had been heard in the House, committee hearings in the Senate could have been either dispensed with entirely or held to a minimum. Finally, there was the psychological factor. House approval would have put the Senate opposition on the defensive.
But despite all these patent advantages to be gained by starting the ball rolling in the House, the President and his corps of master-minds, for some still unexplained reason, decided to launch their Congressional offensive in the hard-boiled Senate. As one disgusted Democratic floor leader expressed it, "This proposition wasn't tough enough, they had to make it tougher by going at it the hardest way."
Given the advantage in maneuvering, the surprised and delighted opposition lost no time in making the most of its opportunities. It outsmarted, outlobbied, and outdemagogued the Administration at every turn. While the latter was complacently planning to raise the party issue, the opposition secretly got together and arranged with the Republicans and Liberty Leaguers to lie low and let the dissenting Democrats carry the torch and do the breast-thumping. Then, screening their operations behind a furious hullabaloo about censorship and strong-arm tactics, the oppositionists conducted a wily filibuster in the Senate Judiciary Committee, dragging out the dull and inane proceedings nearly two months. These hearings did not contribute a single new valuable fact to the controversy. But they did enable Chief Justice Hughes to get in some hefty blows at the President's proposal. Few realize how important a part Mr. Hughes has played in the fight against the court bill. He has conducted his operations with consummate deftness and finesse—and tremendous effectiveness. He alone is responsible for the three five-to-four decisions (Washington minimum-wage, Wagner labor-act, and Herndon civil-liberties cases) that have so heavily undermined public and Congressional support for the President's bill. More than any other factor these decisions have been responsible for the defensive dilemma the President now finds himself in. They took the sting out of his attacks on the court and gave the wavering Senators, whose votes he needed to win, just the alibi they needed to line up against him. Mr. Hughes has played high politics these last three months and played it with boldness and agility. Not only did he reverse himself, but he accomplished the much more difficult feat of persuading justice Roberts to stop nesting with the four diehards and loop the loop with him.
In the inner White House circle, where the full significance of the Chief justice's activities are thoroughly realized, there is bitterness and fury against him. So much, in fact, that a few weeks ago a serious canvass was made of the Constitution and statutes to ascertain whether, in the event the court bill passed, he could be replaced with a new Chief Justice.
While Mr. Hughes and the opposition were steadily cutting the ground from under him and he was clearly losing votes in the Senate, the President persisted in his complacent confidence. Several of his younger lieutenants tried to warn him, but he brushed them aside as overzealous. "Give the opposition plenty of rope," he laughed; "they'll hang themselves," There was a hanging party all right, but it wasn't the opposition that dangled from the end of the rope. Not until the President returned from his Texas fishing trip did he discard his cocky attitude of disparaging the capabilities and strength of his foes and get down to earth. By then his six-judge bill was defunct. The two votes needed in the Judiciary Committee—Senator Joseph O'Mahoney of Wyoming and Senator Pat McCarran of Nevada—to get a favorable report there had been lost. Both of these men could have been held in line had they been properly handled. McCarran comes up for election next year and must have Administration backing to win. He is a pompous, blatant glad-hander with reactionary leanings but can be wooed to an occasional liberal vote if the bait is tempting enough. McCarran wanted particularly a United States marshalship for one of his henchmen. His colleague, Senator Key Pittman, also wanted the plum. Pittman had declared for the President's bill. Why under the circumstances he could not have been persuaded to take something else is a mystery none of the Administration wirepullers have been able to explain. The reason probably is over-confidence. They didn't think they had to trade with McCarran. O'Mahoney, a notch higher in caliber than McCarran, is a hand-made product of the Administration. From an unknown Cheyenne lawyer it elevated him to First Assistant Postmaster General and then put him in the Senate. Between Jim Farley and O'Mahoney existed close personal and political ties. In the early days of the fight Big Jim could have "done business" with Joe. But, again, over-confidence caused the Administration manipulators to delay too long, and O'Mahoney, peeved at what he felt was lack of regard for his importance, gradually worked himself into a rage and wound up carrying an opposition banner.
The unfavorable committee vote was a body blow to the President. It was the first time in his four years in office that a measure bearing his official blessing had been turned down by a committee. Not even the fiercely fought holding-company bill had suffered such a rebuff. The stinging defeat whipped the President into a flurry of belated activity. The new wage-and-hour (Connery-Black) bill was hurriedly completed and introduced at once instead of being delayed until the court measure had been disposed of, as was originally intended. It was hoped that by this move indirect support could be rallied for the judicial bill on the ground that its defeat would also spell doom for the drastic labor proposal. On his part the President began summoning uncommitted and critical Senators to the White House—something he should have done months ago. In these conferences he is making it clear he is willing to accept a compromise. No definite formula is being suggested, but practically any proposal that will enable him to add several justices to the bench is sure to be acceptable. Publicly, however, the White House is maintaining the pose of "standing pat" on the six-judge bill. Secretary Stephen Early even went to the length last week of bawling out the White House correspondent of the Associated Press for saying in a story that the President had told Congressional leaders he was willing to compromise. But behind this window-dressing the stage is being prepared for a back-down. Already Administration mouthpieces are claiming a "moral" victory in the resignation of Van Devanter and the three liberal decisions.