Evening star., 1939-02-14

conservatives as extremely radical,
and there was an effort to block
his confirmation which constituted
one of the bitterest fights on
judicial appointment that the Sen
ate has ever witnessed.
Yet today Louis Brandeis retires
amid the plaudits of conservatives
and radicals alike. During the
years in which he used his power
full and penetrating mind to tackle
the most complicated of legal ques-
tions, he gradually came to be re-
garded by conservatives as a justice
who had deeper respect for pri-
vate property rights than they had
imagined. Again and again, the
conservatives have quoted from his
decisions to formulate their briefs
against radical doctrine.
Warned Against Business Bigness.
But while Mr. Brandeis was
singularly fair to conservatives, he
was, on the other hand, never the
defender of exploitation in any form.
He was quick to strike down arbi-
trary practices, if he deemed them
unconstitutional, whether they ema-
mated from radical or conservative
legislation. Generally speaking, he
has steadfastly maintained that the
State Legislatures and the Congress
should not be interfered with by
the judicial branch of the Govern
ment in working out social and
economic problems within the Con-
stitution. If he leaned in any di-
rection, it was toward the un-
trammeled rights of the several
States to be considered as 48
laboratories in which social and
economic legislation might be
worked out experimentally in our
democracy. And if his social
and economic doctrine could be
epitomized, it was constantly
warning against bigness in business
and the encouragement of little
business as against competitors COM
prising powerful aggregations OF
capital.
Undoubtedly, President Roosevelt
will feel free now to give geo.
graphical considerations more at
tention by appointing Westerner
to the bench, because, when he ap-
pointed Justice Frankfurter, there
were indications that he also ia
vored Judge Harold Stephens of
the Court of Appeals of the District
of Columbia, who halls from Utah.
Mr.. Stephens was an assistant at
torney general in charge of anti
trust legislation under the New Deal
before he was elevated to the bench.
He represents, however, the same
kind of broad-gauged judicial
mindedness which is so Characters
tic of Justice Stanley Reed. His
promotion to the Supreme Court
would, therefore, please radicals
and conservatives alike.
AS matter of fact, men of pro-
nounced prejudices or preconceived
class consciousness are not likely
to be confirmed so readily by the
Senate as men of the Judge Stephens
type, and that's why it would not be
surprising to see the Utah jurist
named to succeed Justice Brandeis.
Does Not Upset Balance.
So far as affecting the basic point
of view of the present. Supreme
Court on certain fundamental is
sues, the retirement of Justice
Brandeis does not create change
There Is still q combination of five
justices of the original nine who
ipvalidated the N. R. A. because it
was an unlawful delegation of leg
islative power, and the same five
Messrs. Hughes, Stone, Butler, Nc
Reynolds and Roberts-Would prob
ably agree in applying the brakes
to legislative extremes of the N. R.
A. sort. There is, on the other
hand, a combination of five So