Roosevelt (53 page)

All that remained was the matter of how to present the plan. Why did Roosevelt insist on almost conspiratorial secrecy? Why did he spring the plan suddenly on Robinson, who would have to manage the fight in the Senate; on Ashurst, who just before had hotly denied that Roosevelt had any plans for packing the Court, on his old progressive ally Norris, on Brandeis and Stone, on Rayburn and Garner, on Farley and Ickes, even on McIntyre and Early? Roosevelt explained to Farley that he feared premature disclosure by the press. This explanation is unconvincing. Roosevelt was too astute a politician to think that secrecy was worth the price of excluding key leaders from the decision-making conferences. Moreover, Roosevelt himself had leaked the essence of the plan to a
Collier’s
writer a few weeks before the announcement.

The explanation lies deeper—deep in Roosevelt’s personality. He had won what he considered to be a personal election victory over the Old Guard. Now the Old Guard remained entrenched in the ramparts of the judiciary. The stage was set for a Rooseveltian onslaught against the citadel as exhilarating and triumphant as his rout of the Republicans. He set the stage with his old flair for timing and suspense. His final presentation combined in a curious fashion two Rooseveltian traits—his instinct for the dramatic and his instinct for the adroit and circuitous stratagem rather than the frontal assault.

Both instincts failed him. “Too clever—too damned clever,” said one pro-New Deal newspaper. The President’s liberal friends were disturbed. Some of them had hoped that Roosevelt would make a direct attack on the Court’s conservative veto. Others used his disingenuousness as an excuse to desert the cause. Still others disagreed with his particular plan. Years before, Roosevelt had lamented that reform came slowly because liberals had such difficulty in agreeing on means. His words would fly back to mock him in 1937.

Battle lines formed quickly but not in a way that was to Roosevelt’s liking. He was not surprised that Republicans and conservative Democrats flared up in opposition. This was to be expected. But alarming reports reached the White House from the Senate. Two noted progressives, Burt Wheeler and Hiram Johnson, were opposed. So were Democrats Joseph O’Mahoney of Wyoming, Tom
Connally of Texas, Bennett Clark of Missouri, Ed Burke of Nebraska, and a dozen others of the kind of men on whose loyalty the President had counted. And—worst blow of all—Norris. Although in the end he supported the bill, the old Nebraskan, within a few hours of Roosevelt’s announcement, said quietly, “I am not in sympathy with the plan to enlarge the Supreme Court.”

Something was happening to the Grand Coalition that had carried Roosevelt to his election triumph. Something was happening to the Republicans too. Knowing that their little band in Congress could not overcome the President in a straight party fight, they resolved to stay silent and let the Democrats fight one another. When Hoover, Landon, and other national leaders wanted to rush to the microphone and make the court plan a party issue, congressional Republicans McNary, Borah, and Vandenberg, acting quickly, headed them off. The Liberty League, moribund after November 1936, was silent. Roosevelt found himself aligned not against Republicans but against his own fellow partisans.

“What a grand fight it is going to be!” Roosevelt wrote Creel. “We need everything we have got to put in it!” To visitors he declared confidently that “the people are with me.” Were they? Within a few days it was clear that the proposal had struck deep into the complex of American emotions. There was a crescendo of protest. The New York
Herald Tribune
gave seven of its eight front-page columns to the proposal. Patriotic groups moved quickly into action. New England town fathers called mass meetings. Bar associations met and denounced. Mail flooded congressional offices; some senators received over a thousand letters a day. What amazed congressmen was less the amount of opposition than the intensity of it. There was a pervasive element of fear—“fear of the unknown,” columnist Raymond Clapper thought—and a deep reverence for the Supreme Court.

Many of the protestants cited their middle-class background, their little property holdings, their fear of labor and radical elements. Events helped sharpen these fears. During the early months of 1937 a rash of sit-down strikes broke out. The picture of grinning, insolent workers barricading factories against the owners was disturbing to people who wanted law and order, and a curious, emotional link was created in the conservative middle-class mind between the court plan and labor turbulence. For the first time, William Allen White wrote Norris, opposition to Roosevelt was coming “not from the plug hat section but from the grass roots.”

The protest was not wholly spontaneous. Busily stoking the fires were Roosevelt’s old friend Frank Gannett and other prominent conservatives. “Get busy fast!” Borah urged Gannett; the New York publisher put $49,000 into the campaign and raised almost $150,000
more from several thousand contributors. Full-page advertisements blossomed in the newspapers; fervent oratory filled the air waves; speeches were franked by the tens of thousands through congressional offices and out to the country. And still the hand of Republican leaders was hardly visible.

One early effect of this surge of protest was to strip Roosevelt’s proposal of its “efficiency” façade and to show it plainly as an attempt to liberalize the Court. Abruptly shifting his tactics, the President decided to wage his campaign squarely on this basic issue. And he resolved on a direct appeal to the country. “The source of criticism is concentrated,” he wrote a friend late in February, “and I feel that as we get the story to the general public the whole matter will be given wide support.”

Significantly, his first appeal was to his party. Addressing a resplendent Democratic victory dinner at the Mayflower Hotel on March 4, the President summoned his partisans to defend his proposal. Roosevelt seemed in the best of humor, but his voice was stern and commanding. He warned his party that it would celebrate victories in the future only if it kept faith with the majority that had elected it. “We gave warning last November that we had only just begun to fight. Did some people really believe we did not mean it? Well—I meant it, and you meant it.”

A new crisis was at hand, the President asserted—a crisis different from but even graver than four years before. It was the ever-accelerating speed of social forces now gathering headway. The President dwelt at length on the fate of remedial measures at the hands of the courts. Then he brought his speech to a stunning climax:

“It will take courage to let our minds be bold and find the ways to meet the needs of the Nation. But for our Party, now as always, the counsel of courage is the counsel of wisdom.

“If we do not have the courage to lead the American people where they want to go, someone else will.

“Here is one-third of a Nation ill-nourished, ill-clad, ill-housed—NOW!

“Here are thousands upon thousands of farmers wondering whether next year’s prices will meet their mortgage interest—NOW!

“Here are thousands upon thousands of men and women laboring for long hours in factories for inadequate pay—NOW!

“Here are thousands upon thousands of children who should be at school, working in mines and mills—NOW!

“Here are strikes more far-reaching than we have ever known, costing millions of dollars—NOW!

“Here are Spring floods threatening to roll again down our river valleys—NOW!

“Here is the Dust Bowl beginning to blow again—NOW!

“If we would keep faith with those who had faith in us, if we would make democracy succeed, I say we must act—NOW!”

The President’s fireside chat a few days later was more pallid and more defensive. Again he dwelt on the conditions of four years before, the “quiet crisis” that faced the country, the failure of the Supreme Court to pull together with the other horses in the “three-horse team” of the national government. The Constitution must be saved from the Court, and the Court from itself. He directly met the charge of packing the Court by denying that he had any intention of appointing “spineless puppets.” He explained at length why he had not chosen the amendment alternative. He pointed to his own record of devotion to civil and religious liberty.

“You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part.”

The President was not depending on oratory alone. From the outset a special White House staff, under Roosevelt’s close direction, managed an aggressive campaign. They dispatched speakers to the country, channeled ideas and arguments to friendly legislators, and put pressure on senators hostile or silent on the measure. The form of this pressure was a subject of open wrangling among Democrats. At the very least, Corcoran and the other administration agents put it up to senators in stiff terms to back up the President. Senators were tempted with new patronage arrangements and with federal projects for their states, and even with judicial appointments for themselves. Pressure was also brought to bear on a number of senators through Democratic organizations in their home states, including Chicago’s Kelly-Nash machine and Pendergast’s Kansas City organization. Some senators—certainly Robinson himself—could hardly forget that passage of the measure would mean that the President could allot six Supreme Court judgeships—the most highly prized appointive job in America.

Roosevelt’s appeal to the people had some impact. Support for the plan reached its highest point in mid-March. But the actual deciding would be done on Capitol Hill, and here things were not going so well.

Roosevelt’s aides were not operating on Capitol Hill with their usual efficiency. Part of the trouble was caused by James Roosevelt, whom his father had appointed as an assistant early in 1937. Eleanor Roosevelt, foreseeing the pressures amid which James would have to work, opposed the appointment, but her husband saw no reason why the fact that he was President should deprive him of his oldest son’s help. Eleanor’s doubts were vindicated. James made promises that seemed to have special authenticity but in fact did not;
the efforts of the other aides on the Hill were undermined; and congressional friction and bitterness increased.

The senatorial opposition, on the other hand, was functioning with extraordinary skill and smoothness. The Republicans were still relatively quiet. On the Democratic side Carter Glass supplied the moral indignation and Wheeler and O’Mahoney the liberal veneer, while middle-of-the-road Democrats like Royal S. Copeland of New York, Frederick Van Nuys of Indiana, and Connally furnished the anchor line of votes. Against them was aligned a solid core of New Dealers and a group of senators who went along with the bill largely out of personal loyalty to the President. A score of senators were—openly, at least—on the fence.

In mid-March the seat of battle shifted to the reverberant, multi-columned Senate caucus room, where the Judiciary Committee held hearings on the measure. Cummings led off for the administration with a statement that reflected the President’s original plea for a more efficient judiciary. He was followed by Assistant Attorney General Robert H. Jackson, who tried valiantly to bring the subject back to the issue of liberalizing the Court. Both were subjected to a barrage of unfriendly questions. So effective was the cross-examination that a dozen experts from the American Bar Association were rumored to be in Washington furnishing ammunition. Other administration witnesses testified over the next ten days, including President Green of the AFL, political scientists Edward S. Corwin and Charles Grove Haines, Editor Irving Brant of the St. Louis
Star-Times.
Then it was the opposition’s turn.

Shrewdly handled, the congressional hearing can be a powerful weapon against the executive. Although not himself a member of the Judiciary Committee, Wheeler was ready, through his friends on the committee, to use it to turn the administration’s flank. A veteran of Montana’s stormy politics, he was a man temperamentally at his best in opposition: tireless, vengeful, resourceful, and often choleric. Despite his protestations of love for the President, he had reason to feel disgruntled; an early and strenuous worker for Roosevelt’s nomination, he had had little recognition, and he knew that he—who had been, after all, the Progressive party running mate of the great La Follette in 1924—had taken a more liberal position than the President on many relief and reform measures.

Wheeler opened the attack on the court bill before the committee. Suddenly he produced the opposition’s bombshell—a letter from Chief Justice Hughes showing categorically that the Supreme Court was abreast of its work and arguing that a larger court would lower its efficiency. In the few minutes the letter took to read it made three things clear: that a coalition had been forged between the senatorial opposition and the politicians of the judiciary, who
were quietly doing what they could against the plan; that this coalition was attacking Roosevelt on his weakest salient, his original charge of inefficiency; and that the political skill of Hughes himself had been thrown into the fight.

Outwardly Hughes had preserved his usual benignity in the face of the court plan. “If they want me to preside over a convention,” he said, “I can do it.” But the old politician’s fighting instincts were aroused. He wished to speak out—but how could he in the face of the restraints that tradition imposed on the Court? Roosevelt’s use of the inefficiency argument gave him the perfect opportunity to attack the plan in the guise of supplying data. The Chief Justice was ready even to appear personally before the committee, but Brandeis objected, so a letter had to do. Working feverishly over a week end to meet Wheeler’s timetable, the Chief Justice turned the letter over to the Senator with a smile. “The baby is born.”

Hughes’s political leadership and shrewdness matched Roosevelt’s. He had not been able, he informed the committee, to consult with every member of the Court, but he was confident that his letter was in accord with their views. Actually, at least one justice, Stone, resented Hughes’s failure to consult him and disagreed with part of the letter. Perhaps the Chief Justice knew or suspected that Stone disparaged Hughes’s reputation as a liberal Justice, that Stone, through Irving Brant of the St. Louis
Star-Times,
was letting his views be known to the White House. In any event, Hughes’s strategy was perfectly executed.