Evening star. [volume] (Washington, D.C.) 1854-1972, 1937-05-09
NEW-bL00D PLAN
FOR COURT URGED
President Could Appoint One
Jurist at Least With
out "Packing."

A novel suggestion for dealing with
the Supreme Court issue, which has
created some interest at the Capitol,
has been advanced by Arthur p Davis
Of this city. 1t calls for the appoint
ment Of one additional Justice of the
Supreme Court within a period Of six
months after the Inauguration of a
President OF the United States. The
first vacancy in the Court, caused by
retirement or death, thereafter, will
Be considered filled by the appoint
ment 50 made, and the President would
not appoint new member to I'LL the
vacany. II the membership of the
Court shall at any time fall below
the nine. the President then shall ap-
point In the usual manner a member
or members to maintain q minimum
OF nine justices at all times
The plan suggested provides for the
infusion Of new blood" on the bench,
and at the same time gets away from
the question Of retirement because of
age.
In the general discussion of the
supreme Court changes" said Mr..
DAVIS, discussing his proposal, there
Is one criticism of the existing order
which seems quite valid to the aver
age man and so far has not been
met by any plan. During the past
nve or six years the political ideas
Of the country, and the world, have
undergone g decided change. 1t is
fair criticism to feel that these new
political ideas approved by large ma
jorities should have some represent
tation or recognition in the Supreme
Court
Held Flaw Of the Law.
The existing method of appoint
mont. depending upon chance for va
cAncies. either death or retirement, has
20 worked out, as we have seen in
the past f1ve years, that no opportunity
has arisen for the appointment Of a
new member representing these new
political ideas. This is a fundamental
fault Of the law, which can easily arise
again to cause trouble. 1t should be
corrected by some such plan as that
now suggest. It is really the under
lying cause for the present attempt
by President Roosevelt to have some
OF his own appointees on the court.
The aim of the plan now suggested
L. to meet the criticism I have stated
and yet make it possible for the ST.
preme Court to retain its individuality
as distinct third part of the Govern
ment as heretofore. The simple work.
ing OF the plan may be easily under
stood. Within the first six months
after his Inauguration the President
appoints new Supreme Court justice,
increasing the total membership Of
the court OF 10. Within two years,
we Will say. q vacancy occurs, The
size OF the court reverts to nine mem
beers. and the President Is not allowed
10 NIL this vacancy. Shortly after this
vacancy, we may assume, another
vacancy occurs. In this case or in
the case OF any subsequent vacancy.
the President will appoint a new mem
Der to the court, as has been customary,
to maintain the minimum of nine
members.
Let us consider how this plan
would have worked during recent his
tory, since 1882. The President would
have appointed one new member Of
the court after his first inauguration,
that Is in 1898, increasing the mem
bership to 10. No vacancies occurred
during the Presidents first term
After his second Inauguration, in 1887,
ne would have appointed another
new member Of the court, increasing
the membership to IL. This same con-
dltlon might obtain In 1941, increasing
the court to II, but Is most unlikely.
due to the passage of the recent act
permitting justices OF the Supreme
Court to retire at 10 years Of age on
full pay.
Would Revert to Nine,
Referring again to the total court
OF IL members, let us assume that two
vacancies occur in 1898, bringing the
number down to 8. The President
may not appoint new members to NIL
these vacancies. The court would then
consist OF nine members.
One feature OF the plan is that
new blood will be injected into the
court at least once every four years.
Any personal resentment or political
argument because the President has
not been able to appoint 4 member
OF the Supreme Court will fall. II
this plan had been in effect in 1892,
1t is quite unlikely that the present
crisis over the court would have been
brought about by the President. For
two OF the members of the court
would have been appointed BY him,
whom he could scarcely have criti-
cized As he has criticized the present
court.
The possible increase, 1T times,
to IL or IL members of the court is not
Objectionable or unwieldy and can
be used as an argument for expediting
the business Of the court. Appoint
ments under this plan could no more
be considered packing the court than
are the usual appointments under the
present system