The Washington times., 1937-12-02
SENATE GROUP
WEIGHS MERIT
OF EDGERTON
Court Appointee Eyed
For Record on Law
BY THEODORE HUNTLEY

by IHEODOHE HUNILE1
Three Senators were sitting as a
court today in the case of Henry
White Edgerton, of New York,
nominated by President Roosevelt
as an associate justice of the
United States Court of Appeals for
the District of Columbia.
They were trying to decide,
after reading several thousand
word thesis written by Mr.. Edger-
ton for the Cornell Law Quarterly,
whether he does or does not believe
the Supreme Court of the United
States has the power under the
Constitution to hold laws passed
by Congress to be unconstitutional.
MAY OPEN COURT ROW
On their decision rested the
possibility of a revival of the SUI
preme Court fight in the Senate,
with Senators dividing on the
nomination of a man for high
judicial post whose views are re-
garded as at variance with the
majority conception of the Su-
preme Courts highest function.
Senator Borah of Idaho recog-
nized as perhaps the best author
ity in the, Senate on the Consti-
tuition and a close student of Su-
preme Court decisions, is mem
ber of the subcommittee of the
Senate Judiciary Committee which
has the Edgerton nomination be-
fore it.
On the subcommittee with him
are Senators Burke of Nebraska
and Van Nuys of Indiana, both
Democrats. All three opposed
President Roosevelt's so-called
court packing" proposal in the
last session of Congress, and were
active in the long fight which
ended in his defeat.
Senator Borah, after what he
described as "haSty reading" Of
the Cornell Quarterly article, said
to have been in preparation for
IS years, was impressed by a
predatory statement by the author
In which he disclaimed any pur-
pose to challenge the Supreme
Courts power to review acts Of
Congress.
"a hasty reading of the article
would indicate that Professor
,Edgerton was not questioning
the power of the court to de
clare an act of Congress uncon-
stitutional," Senator Borah said,
but rather surveying the deci-
sions of the court for the pur-
pose of illustrating what the
effect has been on general in
5terestS."
Senator Ashurst (D.) of Arizona,
chairman of the Senate Judiciary
Committee, which will get the
Edgerton nomination after the
subcommittee completes its study
of the nominees record and views,
Is q "traditionalist" in his view
that the Supreme Court under the
American system not only is the
court Of last resort on cOnstitu-
tional questions but necessarily
exercises this function rather than
Congress.
PASSAGE QUOTED
One of the passages in the
Edgerton treatise which Senators
studied with special care is the
following:
when legal scholar says I
am for continuance of the Su-
preme Courts power of revue!
:. I wonder what cases seem so
valuable to him so to outweigh
the Dred Scott case which
helped to entrench slavery; the
Civil Rights and related cases
which protected the oppression
of Negroes; the employers liza
bility and workmen's compen-
sation cases, which denied relief
to injured workmen; the child
labor and minimum wage cases
which protected the hiring of
women and children at Starva-
tion wages; the income tax
cases, which prevented the shift
ing of the tax burden from the
poor to the rich, and the many
minor instances in which the
courts power of review has done
harm to common men,"