Evening star., 1935-12-25
NAMING OF JUDGES.
OFFERS PROBLEM
Green's Suggestion for
"Progressives" Reveals
Attitude on Politics.

William Green, president OF the
American Federation OF Labor, has
brought into the open one Of the
questions that has been more or less
eamouflaged recently: namely, the
kind Of judges President Roosevelt
should appoint to vacancies on the
Federal bench.
Mr.. Green has asked Mr.. Roosevelt
TO appoint progressive minded"
sudges, and he leaves the plain INFER
ence that Judges who will decide
things according to the viewpoint OF
organized labor would be progressive
minded and the ones who decide
things against organized labor but
within the Constitution would not be
progressive-m minded.
The A. F. of L. recently voted in its
annual convention a criticism of the
Supreme Court power to interpret the
Constitution, Notwithstanding the fact
that the record. as revealed by Charles
Warren, historian, shows that the Su-
preme Court has many more times
sided with labor than against labor.
There are vacancies in the lower
ccsts and new judgeships being Gre
ated by Congress from time to time.
The lower courts can grant injunc-
tions restraining the operation of laws
they deem to be unconstitutional.
Their power is vital in a period of
history like the present, where the
Constitution is being disregarded by
the executive and legislative branches
of the Government and the question
of validity or invalidity is passed over
70 the courts to decide in the slow,
long drawn out processes of judicial
review. Meanwhile, political advan-
tage and political benefits are derived
by the members of the Congress and
the President because, when the laws
are subsequently declared invalid by
the highest court. the legislators and
the executive shift the blame to the
courts and not to the historic inter
probation of the Constitution, which
they themselves chose to ignore.
Supreme Court Policy.
This particular charge is beginning
70 be answered by spokesmen for the
administration with comments rang
ing from the statement that the Su-
preme Court has often reversed itself
to arguments that the people have
themselves amended the Constitution
three times to correct what the Su-
preme Court has held to be an I'M
warranted use of power by Congress.
Tharo Of l1aI
contradictory decisions by the Su-
preme Court. To some critics they
are "reversals" of earlier decisions.
Careful examination of these cases
would doubtless reveal that the sets
of circumstances were not always
alike or that the reversals occurred
because of highly ambiguous point
was resolved in different periods of
American history in different ways.
Attorney General Cummings, in a
recent speech, took the position that
'if no act of Congress of doubtful con-
stitutionality were ever passed the
Supreme Court would have little or
no occasion to exercise any function
IN the matter of constitutional inter-
pretation." He added, moreover, that
legislators were not violating their
oath when voting for legislation of
doubtful validity. He states the
proposition thus:
The correct course would seem
to be that the executive and the
members of the legislative branch,
when not clearly convinced of the
AInnnfl ffr1finnn -
otherwise dsirable, should not neces-
sarily regard themselves as thereby
deferred from enacting it, but should
consider the advisability of leaving
the doubt TO be determined where it
can be determined authoritatively,
namely, by the Supreme Court"
, Doubts Of Constitutionality.
Mr.. Cummings is exactly right in
his reasoning. but anybody who has
watched the New Deal close at hand
on these matters and knows the facts
cannot but concede that the LAWYERS
In the executive branch of the Gov
ernment never had any real doubts
and never were really convinced there
were doubts on the major points of
constitutionality that are NOWADAYS
being raised.
The truth is the Department of
Justice is political agency, and as
such must go along with the desires
and wishes of the political personality
at the head of the Government. What
critics OF the New Deal tactics really
object to is the fact that when a
unanimous opinion of the Supreme
Court Of the United States is rem
oered, as 1t was in the Schechter
case, such an opinion is neither con-
Nncipg~nor controlling with the
RoossTsh administration, but all sorts
OF staTutes and amendments are
adopted designed to do by indirection
that which the Supreme Court said
clearly cannot be done directly by
Congress.
Mr.. Roosevelt's criticism of the
schechter case opinion is a matter of
public record. Hence the passage of the
Guftey coal act Immediately after
ward, Notwithstanding the declaration
In the Schechter case as to what the
Federal Governments powers happen
to be, will always remain to challenge
the soundness Of any claim that am
biguous points were involved or that
the decisions of the courts are mere
guesswork and can be as readily
guessed by the flip of a coin.
To attempt to get new set of Judges
VINO Will make the bench as politically
conscious as the administration is
seeking to make the country class con-
selous Is not new in American his
tory, but 1t is interesting to have the
issue clearly defined for what it is, and
chats what the coming campaign no
doubt will do. For the appoint;ve
power is the biggest weapon the presi-
dency can have today in breaking
down the Constitution without poin9
TO the people with request for direct
amendment. DI,
Copyright. 1880
FlREST0NE SEES END