The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1907-01-14
SMALL CALIBRE
OF THE JUDGES
Federal Bench Regarded as
Cushion for Lame Ducks of
House and Senate.
FITNESS NOT CONSIDERED
RECENT DECISIONS PROVOKE
COMMENT.
lsnecial TO The Herald.N

Washington. Jan. 13-Judge Evans de-
cision at Louisville. holding the employ
ers' liability act unconstitutional. fol-
lowed quickly by a similar decision by
Judge Mccall Of Memphis, and the an
nouncement of the presidents intention
to press an appeal, has caused a great
deal of comment among congressman.
particularly senators. 1t has brought to
the surface a feeling which has been cur
rent a long time. Summarized the feel
ing is this:
The greatest lawyers in the senate. men
like SpOOner. Bailey, Culberson and Knox,
work for months on some bill. as they
did on the rate bin. Great lawyers out
side the senate, like Root and Taft are
called in to aid. Finally the bill becomes
law. and is declared unconstitutional by
some eX-congressman who, if he were
still in the senate or house, would have
not regarded himself as a good enough
lawyer to dare enter the debate with
them.
inferior Congressman.
Both Evans and Mccall have served in
the lower branch of congress. Judge
Evans was appointed by Mckinley and
Judge Mccall by Roosevelt Neither
greSs- Mccall was a one-termer and an
accident. The president did not want
to appoint him. but on the threat Of the
Tennessee senators to defeat Judge Nc
Reynolds for confirmation if he was Sc
lected. the president finally chose Nc
Call. who was urged by Representative
BrOwniow
The ease and dispatch with which fed
eral judges declare laws unconstitutional,
which, in the language of the president
have been sOlemnly considered by con-
gress, is a frequent subject Of discus
sion in the senate cloak rooms. Nobody
knows better than the senator's how these
federal judges are made and what they
stand for representative or sena-
tor loses his job and has no visible means
of support. Straightway there is a move
ment to give him the first vacancy on
the bench. In nine cases out of ten this
senator or representative was, at best,
a congressman of inferior attachments.
If he had attempted 10 discuss, a con-
stitutional question in the senate his col
leagues would have deserted the floor
and the galleries would have quickly
emptied His speech would have been
passed as a joke.
Another Shining Example.
There was Quarles Of Wisconsin,, for
example. who was recently appointed a
federal Judge Any attempt on the part
Of QuarleS to reply TO a constitutional
argument made by Spooner would have
been regarded as an act of presumption.
McComas of Maryland is another sena-
tor defeated for office and promoted to
the bench. Pritchard of North Carolins
is still another defeated senator recently
rescued by a lifetime place on the bench.
The Inauguration cannot draw q picture
of Pritchafd arguing the constitutional
ity of a law point with Knox or Bailey
or Foraker.
over on the house side the calibre OF
men chosen is about the same What
sort of figure would Dayton Of West
Virginia cut in a constitutional debate
with Littlefield Of Maine?' asked ono
OF those who discussed the subject to-
day.
Contrast Is Marked.
federal bench and the calibTe OF men who
necessarily consider important legislation
recommended in a presidents message is
most marked. The employers liability
act aptly illustrates the point The pres
ident first recommended this legislation
i'm a message to congress in December,
1904. Mr., Knox, certainly one of the fore
most lawyers in America had shortly be-
fore retired as attorney general to be-
come senator. In the cabinet during
the time the president was urging this
legislation were his closest advisers. Elihu
Root and W. II. Taft. Root by common
consent is in the foremost rank Of Amer
lean lawyers. Judge Taft is concededly
one of the country's great lawyers. From
consideration by such men q bill recon-
mended in a message to congress goes.
Dismissing the house from consideration,
the. measure is discussed in the senate.
It must stand the grueling examinations
of SpoOner. Bailey. Rayner. Foraker,
Knox and many Others Knox declined
a pOSlllOn Oh the supreme DtQCn AFTER
having served as attorney general. Three
presidents have offered Spooner a place
in the cabinet as attorney general Meth
er of the other senators mentioned could
be induced to consider appointment to
the federal bench, land yet said one
of the critics today "a two-by-nine fed
eral judge somewhere can without hest
tatiOn declare their combined efforts I'M
constitutional and in criminal cases, as
pointed out in the presidents message.
the government has no appeal.
Rate Bill Debate.
The subject Of federal judges came up
for discussion in the senate when the
rate bill was before that body for con-
sideration. AS q compromise between the
contention of Bailey that congress had
the right absolutely to prevent congress
sional court from issuing injunctions and
the contention of Spooner that this power
could not be taken from the courts, an
agreement was reached providing that at
least two circuit judges must sign the
restraining order.