Evening star., 1937-07-13
THE POLITICAL
MILL
BY G.. GOULD LINCOLN.


have from the beginning asserted that
any change In the court at this time
should be through amendment of tn,
Constitution. Through constitutional
amendment, they maintain, the people
will themselves have an opportunity to
express their will. Through the action
OF Congress, demanded by the admins
tration, only the will of the Chief Execu-
tive Is expressed. The reply OF the
administration and of the President has
been that constitutional amendment is
too long \ process and too uncertain.
y ~
But now the opponents OF the court bill
and the compromise substitute offered
for 1t are considering the possibility of
substituting a constitutional amendment
for this legislation. They believe that
such an amendment, providing for COM
pulsory retirement OF justices OF the
Supreme Court at IS years OF age, may
well prove way out of the controversy
that has tied the Senate into q bowknot,
and threatens to prolong the present
session indefinitely They feel that Sem
ators who are willing to enact legis-
lation which In effect renders retire
ment at the age OF IS necessary should
be willing to vote for a constitutional
amendment which accompliShes the
same end
There Is nothing it is said that would
prevent the Offering OF a constitutional
amendment as substitute for the pend
ing legislation. Nothing, that is In the
parliamentary rules OF the Senate. With
such understanding, II the Senate Ju-
dietary Committee recommends the
nj
ponents OF the bill believe this subst-
tuition might be accomplished. And
even II the committee does not bring
forth . resolution proposing a constitu-
tional amendment, one could be offered
bill.
Whether this plan will be carried into
effect remains to be seen. At least it is
being carefully considered today by the
opponents OF the BILL II they can obtain
enough votes for constitutional amend
ment they will at least have ef1ectually
sidetracked the court bill.
Several amendments to the Constitu-
tion dealing with the Supreme Court
have already been offered and referred
to the judiciary committee OF the Sem
ate among them those OF Senator
Andrews OF Florida and Of Senator Burke
OF Nebraska. At the meeting OF the
Judiciary Committee yesterday. Senator
Andrews appeared before 1t to discuss his
proposed amendment The committee
took no action. But 1t is expected that
Senator Burke. \ member OF the COM
mittee, and others before long will insist
upon the consideration of a constitu-
tional amendment Burkes own amend
ment would compel retirement from the
Supreme Court at IS. 1t has other fea-
lures, including 4 provision that the
Supreme Court may declare an act OF
Congress unconstitutional only by q two
thirds vote or more.
+HAA
The chances are. however, that when
the proposed amendment Is finally
offered 1t will provide merely for COM
pulsory retirement at rs, and perhaps
fix the number OF the members of the
court and provide. too, for voluntary
retirement at seventy. Burke has recon-
mended that the number Of the court
be fixed at nine. a Chief Justice and
eight associate justices. This may be
increased to ten associate justices, max
ing the membership eleven. That, how
ever. Is 4 matter that will remain to be
determined.
Senator Andrews proposed amend
ment provides that the Supreme Court
shall consist OF 4 Chief Justice and one
associate justice for each OF the judicial
circuits Of the United States. Objection
Is raised to this. 1t is argued that Con-
Rress can and will from time to time
increase the number OF judicial circuits
and thereby increase the membership of
the Supreme Court. The present situa-
tion. with an administration seeking to
increase the court membership for its
own ends might again arise, 1t Is urged
There is some support for the idea
that each judicial circuit should be rec
ognized, with . member on the Supreme
Bench. At present there are ten judicial
circuits. II each were recognized with
member Of the Supreme Court, there
would be ten associate justices and 4
Chief Justice, court OF eleven members
Today there has been no attempt to
place on the bench q member from each
judicial circuit. Indeed, some of the
circuits are represented In the court by
more than one member and others have
no representation at all New York. for
example, which lies In the second judi
cial circuit. is represented In the court
by Chief Justice Hughes and Associate
Justices Stone and Cardozo.
As the country grows there may come
demand for additional judicial circuits,
In order to bring about more expeditions
transaction of business and Justice How
ever. II the Constitution should provide
that each judicial circuit shall be rep
resented by = member Of the Supreme
Court, 1t might easily happen that the
court would at times be composed Of an
equal number Of justices-twelve, four
teen or even sixteen. An even number
OF justices, 1t is pointed out, might result
in an equally divided court, and ruling
become impossible, II the court divided
evenly. There Is, therefore, 4 disinclina-
tion to write into the Constitution 4 pro-
vision that each circuit must be repre-
sented.
The constitutional amendment method
Of dealing with the controversy in the
Senate over the Supreme Court might
prove 4 happy solution. It might bring
to an end battle which has been tear
ing into the very vitals OF this Demo-
cratic Senate. The debate which Is
now in its second week has increased 4
feeling OF bitterness already existing
when the discussion OF the court bill
began. There Is 4 question as to how
far this kind Of thing can 60 without
bringing 4 rift In Democratic ranks
that would 60 far toward nullifying
much OF the program which President