The Washington times., 1938-11-25


!. ! i. !. !. !
we'll to recall the big and ongstanding Su-
preme Court problem which hasn't been
solved yet. We mean the problem of the N ID
Courts assumed power to legislate by de- -
caring acts of Congress unconstitutional
The worst use the Court ever made of - g
this power was in the bred Scott decision
of 1857, when it declared slavery consttu-
tiona in all States and Terrific cries,
whether any State Territory wished to by
be non-save not That decision Inc me. late AssO
brought on the Civil War four years later Benjamin n
and as we've remarked before, it was CardO1O
versed by Gen. Ulysses S. Grant at Appomattox Court
house, Va. when he received Gen. Robert E. Lees
render there on April 8, 1865.
There is as yet guarantee in the shape of a law
specifically defining the Supreme Courts powers that
shall have future need of another General Grant
verse some decision that flies in the face of American
majority opinion.
When the various New Deal reforms began reaching
the Supreme Court in 193435 the Court began knocking
them like ninepins New Deal losses before the
. court included NRA go decision),
NeW DedCS AAA (6-3), Guffey Coal Acts wage
Scoro Cord hour provisions (6-3), Federal "hot
oil" regulation (8-1), Farm Mortgage
Moratorium Act 800, Railway Pension Act (5-4),
Municipal Bankruptcy Act (5-4).
The New Deals only real Supreme Court victories in
those days the Sd decision uphoding Roosevets
clause in Government bonds and the restricted 81 dec
sion OK.ing in part sale Of IVA power from Wilson
Dam.
A sea change the Court after the President
proposed to unpack it and otherwise curta it's powers
The President lost the battle largely because he neglected
to salve lot of touchy Senators before sprngng his
plan Congress, but he the war.
The Supreme Court has liberal complexion, for
the time being. Conservative Justices Van Devanter and
have andli T. Rlack and
Stanley Reed have been appointed by the President to
succeed them But to repeat, there is still guarantee
that the present court won't unresponsve to the
peoples wishes as its members grow older.
Who is to succeed Cardozo? Plenty of possibilities
talked of, and objections raised to all of them.
Mention Governor Frank Murphy, of Michigan and
you get the that we already have
LOIS OF Catholic pierce Butler) on the
uo,of,,Io Court Mention Felix Frankfurter and
you're told that two Jewish justices out
of total of nine (Brandeis is jewish Cardozo)
would be out of line with the percentage of Jews in
total population Geographical objections also cut
siderable ice. (See map on opposite page)
In fact the President has five big factors to think
about in filling the Cardozo vacancy: Judicial ability, of
course, but also religion geography and the age
of the man he appoints Without mentioning it, he
doubt thinks of sixth factor namely paying off
political debt. You pay off huge political debt
with such plum Supreme Court justiceshp.
We believe the best way to get good Supreme Court
justices would be to appoint them from the lower Federal
courts-the Federal district courts and the Circuit
Courts of Appeals. Such system should also go to
improve the calber of lower Federal court decisions,
since those judges would feel that they had chance to
get to the Supreme Court by making good records on
the lower benches.
And think the Supreme Court justices should be
empowered to choose their Chief Justice instead of
having now to take any Chief Justice the President
appoints when the Chief Justiceship falls vacant Chief
Justice Hughes does excellent job, but not all of
Chief Justices have.
Anyway, we believe the President could make vau-
able precedent if he would fill the Cardozo vacancy with
able and liberal and fairly young Judge now in
comparative obscurty some lower Federal bench.