Evening star., 1939-11-17

ta . af fe,,r @&a ~ 4
years, and it is David Lawrence.
particularly significant that this op-
portunity has arisen within the
short space of two and half years,
since the timew hen Mr.. Roosevelt
started his public attack on the de-
cisions of the court and urged Con-
gress to pass bill to enlarge the
court by adding more justices so as
to overcome what he termed the
conservative point of view of the
bench.
Until the death of Mr.. Butler
notwithstanding that four new JUS
tices had been appointed, it still
was true that five of the original
mine old men" who unanimously
declared the N. R. A. unconstitu-
tional were still in active service. OF
the five vacancies occurring in the
last two and a half years, only two
were due to death and three to vol
untary retirement Justices Bran
deis, Sutherland and Van Devanter
are still technically members of the
judiciary, drawing retired pay.
Senate May Reject Radical"
The fifth justice to be appointed
by Mr.. Roosevelt may have a diff
cult time getting confirmed by the
United States Senate. The nomi-
nation will doubtless be sent to the
Senate next January and if the
nominee is of the radical type and
has in the past taken a position in
favor of the so-called court pack
ing" bill of 1887, the independent
Democrats and Republicans may de-
eide to make an issue of it, thus
reviving for the l940 campaign the
whole Supreme Court controversy
which has arisen since the 1885
election.
There is one man who would be
readily confirmed. He now is JUS
tice on the Court of Appeals of the
District of Columbia. His name is
Harold M. Stephens. He comes from
Utah and was runner-up in the last
process by which names were sub
mitted to the President by the At
torney General, but the friends of
Chairman Douglas of the Securities
and Exchange Commission sue
ceeded in persuading Mr.. Roosevelt
that the objections due to geographic
cal considerations were really not
tenable. Mr.. Douglas hailed origi-
nally from the Northwest and,
though he has not lived there very
much, he was finally considered by
Congress to be eligible to fill the
vacancy as representative of the
West.
The law does not require that ap-
pointments be filled on geograph-
ical basis, but it has been the Gus
tom for Presidents to try to keep
the court balanced regionally. The
East now has more appointees on
the bench than is customary, and
hence another appointment from
the Rocky Mountain region-this
time man who has lived there most
of his life-would give the Supreme
Court the much discussed geograph-
ical balance.
Like Butler, a Catholic.
Judge Stephens fits into the pic
ture from another angle. While
religion does not play a part, never
theless, all things being equal, Presi-
dents do try to have every faith
represented. Justice Butler was a
Catholic. Judge Stephens is Cath
olic. His ability to serve as a Su-
preme Court justice was attested by
the fact that the Attorney General
recommended him when the last
vacancy occurred. He is the logical
choice this time.
AS matter of fact, once before a
"runner-up," so to speak, got the
nomination. Originally Stanley
Reed was recommended for the va
cancy which was filled by the ap-
pointment of Senator Black, and the
next time nomination was made it
came to Mr. Reed.
When Judge Stephens, who is a
Democrat, came to Washington he
served as an Assistant Attorney
General and stood so highly that
when a vacancy occurred on the
al-important Court of Appeals of
the District of Columbia, his selec-
tion was widely acclaimed. He Is
particularly familiar with the prob
lens of conservation law which
arise out of the West and would
make a fitting successor in that
respect either to Justice Van De-
vanter, who hailed from Wyoming
or Justice Sutherland of Utah,
whose familiarity with Western
problems has not been replaced by
recent appointments.
Opposed Enlargement.
Mr.. Stephens did not favor the
enlargement Of the Supreme Court
as sponsored by the President in
1887. Like many other lawyers, he
expressed himself on the subject
moderately and, of course, with the
greatest friendliness to Mr.. Roose-
welt.
There have been indications that
Mr.. Roosevelt in other judicial ap-
pointments has selected lawyers who
were opposed to his Supreme Court
enlargement plan so it is not be-
lieved this circumstance would pre-
vent an appointment. The princi-
pal advantage in appointing Judge
Stephens, entirely apart from his
ability, lies in the fact that he would
be SO quickly confirmed, for he is
widely and favorably known on
capitol Hill among Republicans and
Democrats.