Evening star., 1937-04-06
BY JOHN H. CLINE.

Asserting President Roosevelt's ad-
visers have abandoned principle for
expediency," Charles c. Birmingham.
former president of the New York Bar
Association, appeared before the Sen
ate Judiciary Committee today and
called on Mr.. Roosevelt to "retrace
his steps and proceed on the road
charted for him by the Constitution"
if he desires to change the Supreme
Court.
Telling the committee the court bill
should be abandoned in favor OF an
amendment, the witness said:
What so many of us who have
supported the President oppose is the
method he is adopting to achieve his
ends. The fundamental question be-
fore the people is not the minimum
wage, the N R. A., the A. A. A., or
any other part Of the New Deal. Nor
is it the size of the court or the age
of the judges; it is whether the Su-
preme Court is to be independent or
controlled.
ITO lawyers, the independence Of
the judiciary should be as indisputable
as the multiplication table
Discussion Intensified.
Prior to Burlingham's appearance,
an agreement between Senator's
Wheeler, Democrat, of Montana. and
O'Mahoney, Democrat, Of Wyoming,
intensified discussion OF possible
constitutional amendment as an alter
native to the Roosevelt measure.
Wheeler, an outspoken objector to
revamping the Supreme Court, said
he would vote for OMahoney's
amendment to require a two-thirds
majority of the court to invalidate
any statute.
Criticising Attorney General Cum
mings for his connection with the
plan, Birmingham, q former president
Of the New York Bar Association, said:
"A strange thing about this pro-
posal is the reluctance OF its sponsors
to acknowledge its authorship. 1t has
been praised by cabinet members as
direct and straightforward, quick and
easy method of accomplishing
much needed aid to New Deal legisla-
| ton. Why, then, does no one come
| forward to claim at least that he
inspired or suggested this marvellous
makeshift? Do they fear that they
might take credit from the Attorney
General or even from the President
himself?
Certainly the President has got
all the credit he can get--and more.
As to the Attorney General, he is
almost unique or, to quote Shake
speare. is alone the Arabian Bird
Il do not believe that in our his
tory there are more than two other
Attorneys General will not name
them or help any one to identity
| them-who would not have resigned
their Office rather than have any part
or lot in such shabby enterprise.
A Richard Olney or Moody or 4
Gregory would have advised the Pres
ident to stop, look and listen and turn
back and take the constitutional
path"
One New York attorney. describ-
ing himself as a friend Of the Presi-
dent, said it is absurd and unthink-
able" to imagine that Mr.. Roosevelt
is reaching for more power to make
himself dictator
| But" he added, Franklin D.
Roosevelt is not the last President Of
the United States; there will be
others. All the Huey Longs are not
dead and as the political pendulum
swings we may have reactionary
Presidents and reactionary Senators
who with this bill as \ precedent may
make q new court responsive to their
will: and liberals and radicals, and
labor, too, may curse the day when
the Roosevelt bill was conceived. AS
| a supporter, an admirer and friend
of the President, l cannot refrain
from saying that think he has made
= great blunder and should retrace
his steps and proceed on the road
charted for him by the Constitution
mean by amendment.
| Two Kinds Of Amendments.
There are two kinds Of amend
ments, which should be sharply dis
tinguished.
First there are substantive amend
ments, as, for example, to extend the
scope of the commerce clause or to
give Congress the power to legislate in
social d economic fields. The other
class of amendments gives to the Con-
stitution the powers or the functions
Of the court itself. I submit that the
best of these is Senator Burkes, fixing
an age limit for retirement of all Fed
eral Judges. The precise age Is not i'm
portant, but it would be unfair to the
elderly Justices themselves and would
disrupt the court if Ave judges should
be retired compulsorily at one time.
II yield to no man in my respect
and regard for the President, but he
is the last man in the world to claim
that he is a great lawyer. He must
rely on others to advise him as to the
Constitution and the law, and I regret
that his advisers have abandoned prin-
ciple for expediency.
Quite apart from the principle in
volved, see great value in proceeding
by way of amendment to the Consti-
tuition. The discussions Of the last
two months have convincingly shown
the need of educating the people In
the principles of our Government. The
hearings before this committee, with
the reports in the press and the dis
cussions which are taking place all
over the country, have been of great
value, but they have ranged around
. piece of so-called emergency OF
crisis legislation. If, instead, the sub
ject Of discussion were an amend
ment to the Constitution, it would
be fully and ably debated In both
Houses Of Congress, and on the adop-
ton Of 4 joint resolution the discus
sion would be continued at the cleo
tions of members of the State Legis-
latures or delegates to State conven-
tions, and the proposed amendment
would be debated fully in these Legis-
latures or conventions.
Senator Dieterich. Democrat. OF
Illinois asked the witness to please
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