Evening star., 1937-03-02
BY WILLIAM C. McCLOY.


BY WILLIAM C. McCLOY.
Few will dispute President Roose-
~elt's assertion that modern COM
plexities call for a constant infusion
Of new blood in the courts" But
many insist that 1t is both unwise and
unnecessary hastily to change a sys-
tenn thai has so long and SO carefully
guarded the country during the criti-
cal period of developing its resources.
To avoid unforeseen complications,
the admitted problem demands the
most patient and careful study.
The first paragraph of the proposed
bill reads:
When any judge of court
of the United States appointed to hold
his office during good behavior has
heretofore or hereafter attained
the age of 76 years and has
held a commission or commits
sions as judge of any court or courts
at least two years continuously or
otherwise, and within six months
thereafter has neither resigned nor
retired, the President, for each such
judge who has not so resigned or re-
tired, shall nominate and by and with
the advice and consent of the Sem
ate shall appoint one additional judge
to the court to which the former is
commissioned. Provided. that no ad-
ditional judge shall be appointed here
under If one judge who is of retire.
ment age dies. resigns or retires prior
to the domination of some additional
judge
Section (B) of the suggested draft
proposes:
e.. That no judge shall be ap-
pointed if such an appointment would
result in more than Is members Of
the Supreme Court"
Six Would Be Affected.
Should the proposed draft become
law. the present members of the
Supreme Court who would be af-
fected by it are Justices Brandies. 80:
Van Devanter, IS; Hughes Chief
Justlce), IS; Sutherland, IS: Mercy
nolds. rs; Butler, 71-six in all-bring-
Ing the total number of justices to IS,
the full limit of the proposal.
Those favoring the Presidents pro-
posal say such change would be
enough to allow the administration.
with the consent of the Senate. to
carry out the economic plans that an
overwhelming majority of the elec-
torate made mandatory upon the
President.
Those opposed to the proposed draft
Insist it would establish emeritus
Justices and give the President die
tatorial powers over the court
Changing conditions call for chang
ing treatment The electorate, gen.
orally speaking. always has been in
clined to resent quarrels between the
legislative or executive branch of the
Government and the Supreme Court.
The contest in 1868 over certain
phases of the reconstruction acts is an
example of this.
The question bringing on the crisis
didn't mean much to the man in
the street" but. in reality, its settle
ment either way was of paramount
Importance. President johnson con-
tended that the Confederate States
had never really been out of the
Union. but only thought they had
been. The radical Republicans, led
by Thaddeus Stevens, insisted the
Confederacy had set itself up as
hostile nation and should be treated
as such. In the particular case which
brought the Supreme Court in con-
dict with Congress ss-historically known
as ex parte McCardle-Chief Justice
Chase asserted the secession ordi-
nance of Texas, the State involved,
was nullity, the State never having
been out of the Union.
Two-thirds Bill Passed House.
The contest became very bitter.
While it was pending the House of
Representatives, by vote of 116 to
80. passed a bill providing that two
thirds of the Supreme Court justices
must concur to render invalid any
act of Congress. This bill was held
up in the Senate, but in such a way
as to permit its revival at any time
When the McCardle case was called
the Supreme Court postponed con-
sideration until the next term. The
quarrel between the President and
Congress during this interval took
other forms and the case was not of
much interest later. But it served to
rank in the public mind as defeat
for the Supreme Court and seriously,
at the time, impaired its prestige.
On its face, the new proposal of
Senator Borah to rewrlte the four
teenth amendment so that it would
limit the activity of the FEDERAL Gov
ernment" in social and economic leg
islation will seem to many persons
excellent.
T. These problems Of today could be
met" said the Senator in speaking of
this bill. The State of New York,
for instance, ought to be permitted to
work out its own problems without
being censored by foreign govern
ment, which the Federal Government
is-so far as local problems are cen
cerned. My amendment would give
to the States full power to handle
social and economic problems within
the States"
But such suggestions do not always
work out practically, as Senator Borah
learned in his hasty advocacy Of
seven-to-two decisions. This new pio-
posal Of his might easily establish. in
The wars tn come AZ forms of laws
within the country for covering social
and economic legislation. The Sena-
tor might profit by reading John
Bright's celebrated speech in the Brit
ish Parliament during our Civil War.
when certain British statesmen
thought it would be good thing for
Great Britain # the United States
were severed. Mr.. Bright said:
There cannot be rleaner motive"
than to say 'it would be better for us
that the American continent should
ba &C %ha copfipapt of EiIrOnn Is in