The Waterbury Democrat., 1938-10-29

At the beginning of 1852, the great Oliver Wendell Holmes, then 9l years old, was suffering anguish from lumbago as he conscientious ly came every day to his place on the bench. For many years his New England conscience had tormented him with the worry that he might not be pulling his full weight in the work of the Court.
 On the eleventh day of Janu- ary, Holmes remarked as he left the robing room, T shan't be here tomorrow"
 Next day Herbert Hoover re- ceiyed his letter Of resignation.
 Holmes was a mountain of a man, the acknowledged legal scholar of his time, then the dis- senting prophet of what are now the accepted constitutional theories of the renovated Supreme Court. His resignation brought an insistent demand throughout the country that the successor should be someone of Holmes own stature in the legal profession, not just an ordinary supreme court justice, but someone imbuec with Holmes great tradition.
 On this basis the obvious choice was Benjamin Cardoza of the New York Court of App peals, who always referred to Holmes as "my master" and to whom Holmes referred as "a great and beautiful spirit". The legal profession was almost unanimous in recommending him.
 A WHOLE MONTH WENT BY. BOrah and Hoover
 Senator Borah, members of the Judiciary Committee of the Sen- ate, had for many years been close to the problems of the Su- preme Court. He decided to take up the matter personally with Hoover.
 One Sunday afternoon in Feb- ruary, Borah pleaded earnestly with the President to appoint Car doza as @ worthy successor to Holmes. Their colloquy is one of the most magnificent moments in Borah's long and distinguished public service.
 Senator" countered the presi- dent, T agree with you that Cardoza is a good judge. But there are many other judges who are good enough and who I think would better fit into our scheme, of things" He added that he had been thinking about Q certain District Judge in California.
 "Mr. President, if you nomin- ate him to the Supreme Court, I shall myself lead the opposition against him."
 And on what ground?"
 "On the adequate ground of Obscurity; Q Justice of the Su- preme Court must be some- body"
 But there are geographic con- alterations. There are already two justices on the court from New York, Stone and Hughes. Cardoza will make a third"
 "Mr. President, man of Car doza's attainments is above geo. graphy. Cardoza belongs to the whole United States: he belongs as much to Idaho as he does to New York"
 'But Cardoza is . Jew and there is a good deal of anti Semitism abroad in the land."
 MT. President, the way to deal with anti-Semitism is not to yield to itl Why don't you make out Cardoza's commission now?"
 Hoover, silenced but not con- vinced, refused to do anything more than think 1t over."
 Political Expediency
 Then Borah, shrewd politician as well as Judicial idealist, played his trump card. From the White House he went to see Jim Wat son of Indiana, Republican floor leader in the senate. Watson, no idealist, but the hardest-headed realist among Hoover,s senatorial supporters, was one of the few effective members of the rear guard trying to beat off the mounting attacks on the demor- alized Hoover regime.
 "Jim," said Borah. "I've just seen Hoover about the Supreme Court appointment. He has an idea he's going to save California in November by appointing some obscure district judge out there. Now I'm Far Westerner and you're a Middle Westerner., But you know and know that the