Evening star., 1936-02-19
LAW TACTICS HELD
VITAL TO'NEWD DEAL
Experienced Counsel, Not
Brain-Trust Lawyers,
Seen as Saviors.
BY DAVID LAWRENCE,


The T. v. A. decision marks the
beginning of the end of ''brain-trust"
lawyers. For the New Deal won be-
cause 1t hired as special counsel o
man who knew the law and the Con-
stitution and he was invited into the
case notwithstanding the fact that he
was a Republican and an appointee
of President Hoover, namely John Lord
OBrian of Buffalo, N. Y.
O'Brian came into the litigation
after the New Deal had lost in the
District court, but when he developed
his argument before the Circuit Court
Of Appeals in New Orleans he so mar
rowed the issue as to win a complete
triumph. The Supreme Court accepted
the reasoning of the Circuit Court of
Appeals.
O'Brian has had long experience
in arguing cases before the Supreme
Court. Had men Of his type been
chosen, the New Deal might have
succeeded before in narrowing the
issues before the courts. At any rate
it is clear that corporation lawyers
can be found in America who can help
draft laws that conform to some of the
New Deal objectives, but nevertheless
do not take in so much territory as to
render these statutes vulnerable to
attack.
Concessions Made.
Yet it is significant that in order to
win his case. O'Brian had to make
concessions as to the scope of the
Governments purposes in T. v. A.,
which the Department of Justice it
self might have been reluctant to
make and which T. v. A. attorneys
themselves might have hesitated to
proclaim. The probabilities are that
O'Brian's own philosophy about the
Government engaging in business in
competition with private companies Is
not much different from those people
who are today fighting the T. v. A..
but the decision of whether the
T. v. A., as whole, is or is not wise
step or an American policy is some
thing for the people at the polls to
decide and not for the courts.
Incidentally this is one of the ad-
Vantages of a narrow issue decision.
Now the people of various parts of the
country who are going to be affected
by T. v. A. will have to meet the ques-
tion squarely. Will T. v. A. 60 out
into Ohio. as was alleged last year, and
seek industries to move to Tennessee?
Will New England lose some of her
factories as the arrangements find
lower power rates in the South attrac-
tive? And what of real estate values
and the business of merchants in cities
which are to lose population as the
drive to build up new industrial areas
gets under way?
Sentiment May Divide.
These are matters that have the
n1akingS Of great conflicts between Sec
tions. And it may well happen that
by the time the other large power
projects get under way, public opinion
may swing against them on the ground
that they are drains ON the treasury,
paid for by citizens of one section who
do not derive the same benefit as do
those in the areas where the power
dams are being constructed.
In the numerous law suits that will
arise, the New Deal will have need for
able counsels. The "brain-trust" law
yers came here with plenty of crusad-
ing zeal, but with lack of knowledge
Of constitutional law in actual cases
before the Supreme Court itself. Since
Stanley Reed was made solicitor gen.
eral at the Department of Justice he
has insisted on selecting counsel that
best fit each case at the bar and he
has introduced an element of prac-
ticality himself which indicates that
the New Deal is going to make much
better showing in the future before the
court than it has in the past though
unfortunately some Of the statutes
have been so clumsily drawn that most
Of them are destined for the scrap
heap and cannot be saved no matter
how skillful the special counsel.
May Curb Criticism.
Reaction here to the Supreme Court
decision in the T. v. A. case is one
of rather general satisfaction. The
T. v. A. Is regarded for the moment
as giant work relief project by many
people. The courts opinion limits
what can be done by the T. v. A. The
sponsors and managers of the project
will continue to expand their activities,
many Of which will no doubt be found
invalid
The fact that the New Deal won an
important case may have the effect Of
diminishing some of the bitter criticism
leveled at the justices by the New
Dealers. Any idea that the court was
stampeded into giving the New Deal a
favorable decision so as to balance
some of the unfavorable is, of course,
absurd. The cleavage inside the court
and the first vote as to the merits of
the particular case in which the opin.
ions were handed down this week un-
doubtedly occurred many weeks ago
when the case itself was argued. In
other words, the justices doubtless took
their positions on the T. v. A. case
privately long before the storm on the
A A. A. decision broke. The inter-
vening weeks were occupied in reading
the record of the lower courts and
doing the research work and writing
the voluminous opinions that were
finally handed down.
The Supreme Court is not stampeded
by popular passions and while its mem
bers may differ vehemently on con-
troverted points the tribunal is as dis
interested as human independence can
make 1t.