Evening star., 1937-03-09
PRECEDENT PERIL
0NCOURT SECUTED
Observer Sees Plan as
Unique Solution to
Unique Crisis.
BY CHARLES S. COLLIER,
GeorRe Washinfton University.

When one has reviewed the several
possible solutions for the acute con-
flict between law and politics that led
to the Presidents much-debated pro-
posal for judicial reform" he may be
willing to admit the need Of some
radical corrective effort in this field
on the part of the effective political
leadership of the country. and yet,
he may be disposed most seriously to
question the method and manner Of
the Presidents action. He may ask
himself whether the Presidents plan,
though perhaps defensible In theory.
will not actually do more harm than
good. viii it not lead actually to
"packing the courts" with unflt
judges? Will it not create harm
full precedent that will serve the pur-
poses of the enemies of democracy
and real liberty at some future time?
The catch-phrase, packing the
court is constantly used in the dis
cussion of the Presidents proposal.
This phrase seems primarily a device
to paralyze thinking. 1t has an emo
tional connotation which renders it
difficult for any one to use his free
judgment in answering. and 1t Is used
constantly as a signal to abandon in
tellectual reflection on the whole sub
ject and turn ones mind over to ones
emotions.
The truth is that the phrase pack
ing the court" is highly ambiguous.
Taken in one sense. it calls up the
thought Of a dsgruntled litigant in
some way obtaining judges who favor
his side Of case by some abuse IN
selecting the members Of the tribunal,
or perhaps through bribery or cor
ruption. 1t Is naturally thought that
such q court cannot render Just or
legal Judgment. But there Is no
ground whatever for the assumption
that the President will pack the
court" In this sense. The newspaper
statements to the effect that the Presi-
dent will appoint "his own hench-
men," and will exact from them agree
ments OF some sort to vote IN favor
Of New Deal measures are merely loose
defamatory statements that have no
justification whatever, neither in any
known facts, nor In the probabilities
Of the case.
To Select Sympathi.ers. However.
There is another meaning, however
for the phrase packing the court.
which has greater plausibility. 1t Is
true enough that the President Will
attempt to pick for the new judgeships
men who are in sympathy with his
general social and political point OF
view. He is likely to pick lawyers
with what is called liberal or pro-
gressive outlook, rather than hard
boiled practitioners Of the strictly in
dividualistic school. But this sort OF
choosing among the different types OF
men found in the legal profession has
always been characteristic OF presi'
Dental appointments. and can hardly
be avoided. When President Lincoln
had the opportunity to appoint ne
judges in the Civil War period, HI
naturally selected men who were ir
sympathy with the objectives OF hi'
administration. rather than those Of
plSNlUuS dLiOil Va ACoA-
dent Buchanan. Though one or two
of his nominees were Democrats, OF
had been at times affiliated with the
Democratic party, they were al
"dyed-in-the-wool' supporters of the
President and his policies. Similarly,
when President Harding had an op-
portunity to appoint four justices in
the years 1928, he chose men who
can fairly be described as outstanding
leaders in the conservative school OF
opinion, such as Chief Justice Taft
and Justice Sutherland. President
Wilson, in 1916, deliberately under
took to liberalize the court to a Ger.
tain extent by the appointment. o1
Justice BrandeiS, who was then al
ready we'll known and widely criti.
cized for his liberal views, and Justice
Clarke, q liberal and humanitarian
leader in his previous career. Presi.
dent Jackson at an earlier period un-
doubtedly sought, by the appointment
to the court Of political associates Of
his own. like Roger B. Taney, to alter
the ultra conservative and nationals.
tic tone Of opinion dominant in thu
Supreme Court, as constituted wher
he himself first assumed the presi.
dental office.
Natural Tendency Seen.
There is thus nothing new in the
Idea Of judicial selection to represent
Q general conservative, or liberal, o.
nationalistic, or States rights tend
ency on the part Of the President. Il
Is simply the natural tendency of al
Presidents, and it has been illustrated
in many examples through our history
Now the slur on President Roosevelt ir
reference to packing the court" !.
given bit of plausib.lity by this am.
biguity, and by it alone. It is known
to be likely that he will pick men o.
social and political views somewhat
similar to his own. From this 1t /!
inferred without the slightest justifica.
tion that the men selected will be mere
underlings, "henchmen" as the news
papers say. rather than outstanding