Evening star., 1937-03-19

Sti NdllNt IL ID lllOl Z COilSbTNdl 1--WE
than amending the commerce and due
process of law clauses of the Consti-
tuition, or adopting legislation which
would deprive the Supreme Court Of
any of its present powers or making
an adverse vote Of more than ma
an act Of Congress.
Furthermore, it is more conserva-
tive of existing institutions than to
do nothing, for to do nothing is en-
evitably to invite radical and re-
grettable action
Lewis pointed out that the problem
of meeting conditions created by the
relation of age to judicial capacity is
simple to solve in a satisfactory man.
ner Since the Constitution provides
for life tenure of office by Federal
judges, he said he was convinced the
Presidents recommendation is the
best suggestion yet offered
Working Day Shortened.
We all know judges of 70 or over
who are not only in full possession of
their mental faculties" said Lewis,
but in some cases are capable of
working as long and as hard as they
ever worked. In the majority of
cases. however, the man going through
his 70s, while he may be as mentally
capable as ever, the length OF his
working day is progressively short
ened."
He referred TO the late Elihu Root
who in his S0s said: Il think l can
work as well as I ever did-for the
first two hours"
Lewis argued that it would be
mistake to compel all Judges to retire
at 10 and pointed out that the retire.
ment of the late Justice Holmes. who
remained on the bench for a score Of
years after 70, would have been
real loss.
Lewis argued that to have fixed
number of judges appointed for life
and then make no provision for the
appointment of additional judges, as
the sitting judges grow older, in
evitably throws on the stronger men,
bers of the court an amount of work
which they should not be asked to
carry"
He said that, II at present, there
were not six members of the Supreme
Court over 10, President Roosevelts S
recommendation would have been
hailed by the bar. the bench and the
public as a happy solution Of this
problem.
Lewis contended that it is desirable
the President should now have the
power TO appoint as many as six addi-
tional members of the court. He said
that many cases before the Supreme
Court involving doubtful constitutional
law arise under two clauses Of the
Constitution-the commerce clause
and the due process of-laW clause. He
said that there were two conflicting
theories of the method to be employed
in interpreting these clauses.
"One theory would interpret them
primarily in the light of privacy and
the economic facts and contest the
social justice out of which these con-
QALAOilo dlOSS. Aie ollici Nou40 iieSA
pret these clauses primarily in the
light of present economic and social
facts and concepts"
He said that almost every one of the
New Deal laws enacted, or probably to
be enacted, involves an Interpretation
of these two clauses of the Constitu-
ton. Their constitutionality will be
determined, he said, according to the
theory the judges adopt as to the
proper method of interpreting these
clauses. He insisted that any one of
reasonable intelligence who knows an
others background and the general
tendency of his thought can in most
cases foretell, with high degree of
certainty, how a judge would decide
questions involving these two clauses
and other clauses of the Constitution.
Therefore, he said. the President un-
doubtedly can, and will, select judges
who will interpret the Constitution in
a manner that would uphold New Deal
laws.
Can Foretell Attitude.
ITO accomplish this result" said
Lewis, "the President need make no
bargain with any of his appointees.
Indeed, no honorable President would
suggest such bargain, but, never
thelsss, being a person of reasonable
intelligence, as stated, he can foretell,
not with absolute, but with reasonable
certainty, the attitude of his ap-
pointees on admittedly doubtful though
vital questions of constitutional law"
The witness declared that to do
nothing about the Supreme Court
would do more to break down respect
for that court than anything that
might occur to the Presidents bill.
He based this belief on the probable
attitude of the people, who see laws
declared unconstitutional which they
regard as essential to public welfare.
DR.. Lewis told the committee the
American Law Institute is an organ
ization composed of the leading judges,
lawyers and law teachers in the
United States. 1t was founded in 1923.
he said, and has since been engaged
in preparing restatement Of the
common law.
DR.. Lewis, formerly dean of the Law
School Of the University of Pennsyl-
vania, emphasized, however, he was
testifying as private citizen and
could In no sense speak for the IN
stitute.
Replying to a query by Senator
Logan, Democrat, of Kentucky, he
said that in his opinion Congress pos
sibly has the power to enact legisla-
ton which in effect would deprive the
Supreme Court of appellate jurisdic-
ton in constitutional cases.
But" he added, such legislation
to me would be anathemA."
When Senator Logan asked Il Con-