Visibility Poor

The three subordinates on whom President Roosevelt depends to win his Senate victories are Majority Leader Joseph T. Robinson of Arkansas, the bull-voiced, heavy-fisted field commander; Pat Harrison of Mississippi, the shrewd committee and cloakroom horsetrader; and James F. Byrnes of South Carolina, the suave personal envoy. All three were present one noon last week when Senator Robinson summoned newsmen to his office to discuss the President's breathtaking proposal for rejuvenating the Judiciary (TIME, Feb. 15). Talk skimmed over various features of the plan. "Speaking solely for Joe Robinson." the 64-year-old Majority Leader, who hopes his next step up will be to the Supreme Court bench, observed that justices might well be superannuated at 75 instead of the President's 70.

As the interview ended, one reporter lingered to suggest that the public would view the plan more favorably if it were assured that the Supreme Court might be increased to 15 only temporarily. That, declared Senator Robinson, was exactly what the President contemplated. With interpolations by Senator Byrnes, he proceeded to dictate a statement making the point entirely clear: "Any increase above nine in the membership of the Court can exist only so long as there are judges eligible for retirement. When judges retire the number is reduced by the number retiring. The purpose is always to keep nine members of the Court who are under the retirement age."

All the President would say in regard to the Majority Leader's statement was:

Look at the bill. Correspondents looked, found in Subsection A the proposal to add a new judge for each one past 70. In Subsection B: "the number of judges of any court shall be permanently increased by the number appointed thereto under the provisions of Subsection A."

The astonishing misapprehension of Senators Robinson, Byrnes & Harrison was typical of the confusion which prevailed in Washington last week after the first shock of the President's proposal had passed. California's Hiram Johnson, Missouri's Bennett Champ Clark and Montana's Burton K. Wheeler made up their minds against the plan. But after the first quick division for & against, the 30-odd remaining Senators who held the balance of power were lying low, waiting to see how the wind blew. Letters from constituents and memorials from State Legislatures were mostly pro-Court, but there were enough pro-President to give Congressmen pause. Asked why he had suddenly canceled plans to introduce two non-controversial items of the President's program in a separate bill, Chairman Hatton W. Sumners of the House Judiciary Committee spoke the troubled mind of many another Congressman: "The visibility is poor, it's foggy, the barometer is too low and the wind is not in the right direction. So I decided not to take off."

Real reason for Chairman Sumners' grounding was White House orders. The President did not propose to have his chances of "rejuvenating"' the Supreme Court lessened by letting that feature of his program stand alone. But one bill relating to the Court was passed by the House last week with full Presidential approval. All Federal judges who have served at least ten years on the bench may resign at 70, automatically be pensioned at full pay. Such pensions are, however, subject to reduction or withdrawal by Congress.-- * Lower court judges may avoid this risk by retiring instead of resigning. So doing they remain on call for judicial duties and, by thus technically retaining their service status, they also retain their service pay. The bill passed by the House would give Supreme Court justices the same security as lower court judges. Plain cynics asserted that the bill was intended to bribe at least two elderly conservatives to retire.

That chance, however, was what Franklin Roosevelt calls "too iffy." Well aware that he had put his prestige to its greatest test, the President sent his Congressional contact men charging up the Hill, did his own bit by summoning doubtful Senators to the White House for heart-to-hearts in groups of two to six. They reported him affable, patient, conciliatory, uproarious at the suggestion that he wanted to become a dictator--and determined to gain his end. Any doubt of his single motive was dispelled at week's end when he took his press conference into his confidence for a 20-minute "background talk" on the history of his plan. He had been thinking of ways to bring the Supreme Court into step with the New Deal, he said, ever since NRA was killed in May 1935. Hundreds of plans had poured into the White House, been carefully studied by him, Attorney General Cummings and Solicitor General Stanley F. Reed. They had discarded the idea of a Constitutional amendment because organized minorities in a handful of States might block it, and in any event it would take too long. As for the idea of a law requiring a more-than-majority Supreme Court vote to nullify acts of Congress, he and his advisers had concluded that the Court would probably hold such an act itself unconstitutional, since court decisions had been made by majority vote for centuries under English common law. That left the plan which he finally adopted. The election of 1936 made him surer than ever that the nation wanted the kind of legislation which the present Court was blocking. Shortly before he left for South America last November he had turned his program over to Messrs. Cummings and Reed for final formulation.

In this history, correspondents noted, there was no mention of overcrowded dockets, of "aged and infirm judges." Many a friendly critic wished the President had been as frank in his message to Congress.

By week's end the lines on which the great Court battle would be fought were clear. The President's supporters were trying to keep the issue immediate and concrete, as pertaining only to the conflict between the New Deal and the pres-ent Court. "What," cried Attorney General Cummings over a nation-wide radio network, "is the real objection [to the President's plan]? Those who wish to preserve the status quo want to retain on the bench judges who may be relied upon to veto progressive measures."

Retorted Virginia's Carter Glass: "The country is infinitely greater in need of an Attorney General than of additional judges of the Supreme Court, of judicial wet-nurses for six of the present members of the Court."

Opponents of the plan were centering their fire on principle and precedent. Declared Senator Wheeler: "Every labor leader, every farmer and every progressive-minded citizen in the United States would have been shocked, and protested from the house tops if President Harding, President Coolidge or President Hoover had even intimated that they wanted to increase the Supreme Court so as to make it subservient to their wishes. The progressives would have said, and rightly so, that it was fundamentally unsound, morally wrong and an attempt to set up a dictatorship in this country."

--*The late Associate Justice Oliver Wendell Holmes's pension was temporarily reduced 50% by the Economy Act of 1932.

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