Evening star. [volume], May 19, 1937, Page A-11, Image 11

About Evening star. [volume] (Washington, D.C.) 1854-1972

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.. Van Devanter
Raises Law
Puzzle
His Exact Status and
Effect On Court
Change in Doubt.
BY DAVID LAWRENCE.
FAR from clarifying or even be
ginning to clarify the judiciary
situation, the “retirement from
regular active service" of Jus
tice Van Devanter of the Supreme
Court has produced a number of grave
Complications.
For one thing, it means that if no
•ther justice follows Mr. Van Devan
ter’s lead and if the President’s pro
posed bill to enlarge the court should
pass as ne rec
■ ommended It, the i
Supreme Court ;
hereafter would :i
consist of 14 jus- :
tires Instead of :
15. \
' Thus the court j
could conceivably i
divide 7 to 7 here
after. This is be
cause the Presi
dent's bill pro
vides that no ad- •
ditional justices \
aha 11 be ap- i
pointed alongside 3
of any judge who,
David Lawrence.
having reached the age of 70, gives
notice of his intention to retire.
But apart from the creation of a
Court of an even number of justices—
something that has happened only
rarely in American history—there is
another complication- It will be noted
on examining Justice Van Devanter’s
letter that he did not use the word
"resign." He followed closely the
language of the Sumners-McCarran
law passed by this session of Congress
and signed by Mr. Roosevelt on March
1. He wrote: "I desire to avail my
self of the rights, privileges, and ju
dicial service specified in the act of
March 1, 1937, and to that end I here
by retire from regular active service
on the bench."
Prevents Pay Cut by Congress
The purpose of the act was to allow
a justice to retire and yet draw full
pay because when Justice Oliver Wen
dell Holmes resigned an economy wave
came along in Congress and cut his
salary in half. If, however, a judge
remains in service as a member of
the judicial branch of the Govern
♦ inent, the theory is that he has con
stitutional protection against having
his salary diminished. For the Con
stitution does not permit any judge’s
salary to be reduced by Congress,
The Sumners-McCarran law was
adopted in an effort to give justices
who retired some sort of opportunity
to continue in the status of judicial
officers without actually cutting them
selves off by a resignation. This is in
deed analogous to the status of re
tired Army officers who are subject to
call.
> In a letter to the New York Times
last Sunday, Henry W. Taft, a brother
of the late Chief Justice Taft, dis
cussed these very points. He said:
“This raises a question whether
there can be a retirement which is not
a resignation, and whether the func
tion of a Justice of the Supreme Court
In participating in the exercise by the
court of its judicial power under the
Constitution can be altered or limited
by Congress, even with the assent of
the justice.
Creates No Vacancy.
“The office held by a justice can
not be held in part; if he remains a
justice of the Supreme Court and ex
ercises any part of the powers con
ferred by his commission, there is no
vacancy, and there can be no ‘suc
cessor,’ as provided in the Sumners
McCarran bill.
“The Sumners-McCarran bill also
provides that a justice shall have the
right to retire ’from regular active
service on the bench.’ What does
that mean? If he continues to be a
justice of the Supreme Court he has,
under the Constitution, the right to
demand that he be allowed to sit with
the court and perform his duties; and
his oath of office, ’to support the Con
stitution’ as well as the statutory oath,
requires that he should do so.
“Numerous other questions arise.
How, under the Constitution, can
there be any judicial service which is
not both ‘regular’ and ‘active,’ as pro
vided in the act? How can a man be
a justice of the Supreme Court and
not be counted to determine a ma
jority? That would seem to be im
plicit in the performance of the judi
cial function ‘vested in one Supreme
Court.’
Quorum Question Arises.
•'Furthermore, the present law pro
vides that the quorum of the court
shall consist of six of the nine jus
tices. and the bill proposed by the
President also provides that a quorum
. shall consist of ‘at least two-thirds
of the number of which the Supreme
Court of the United States consists.’
Is a retired justice to be counted in
determining whether the quorum
exists?
“Finally, the Sumners-McCarran
bill makes the nature and character
t of the continued service of a retired
Justice such as he ‘may be willing to
undertake.’ Can the performance of
the function of a justice appointed
under the Constitution and still
bound by his oath of office be made
' dependent upon his willingness to
undertake It?”
’ I have quoted Mr. Taft’s letter at
length because it states the complex
ities of the problem raised by Mr. Van
Devanter’s withdrawal from “regular
v active service” and challenges at once
the meaning of the Sumners-McCar
ran law.
Raises Eligibility Question.
In an entirely separate aspect, there
Is another complication. The Consti
tution forbids the appointment of any
member of the House or Senate to
HOW ABOUT A DATE?
WAT8B TMWSBAYI tTAB
' r
News Behind the News
Evidence of Budget Balancing in 1938 Gleaned
From Roosevelt Talks With Congress Leaders.
BY PAUL MALLOW
UNCERTAIN evidence as to Mr. R.’s seriousness about balancing the
budget came out of his recent series of conferences with his con
gressional leaders. They brought word back to anxious legislators
that he would balance It In the old Spanish manner, “manana,”
i. e„ in 1938.
Although this is unsatisfactory to those who want an immediate
balance, they seem to be somewhat appeased by the new assurance. The
‘ manana” balancing of the budget has been going on for three or four
years now, but this time they profess to believe it will be done.
What makes them so sure is the fact that it could have been done
this year if the President really had wanted to do it, and they do not sea
how he can avoid doing it next
year.
* * * *
That too-healthy tan on Jim
Farley’s face these days is not
premature sunburn. He is Just
smoking from within because he
thought he was talking off the
record when he said:
“Well, w’hen Senator O’Ma
honey comes down here (the White |
House) wanting help on his sugar
Din, ms conscience won't be bothering him, will it? Or when Pat McCarran
wants aid for his State. It's all in the viewpoint.”
Afr. Farley has always talked freely. His friends think too
freely. They are surprised he has not become involved in something
like his present threat to anti-packing Supreme Court Democrats
long before this. Friendly newsmen have occasionally kept him out
of trouble by giving an inkling of how his free talking might sound
in print.
He is now carrying a roll of adhesive tape in his pocket.
★ * * *
The power message which the President has been promising to Con
gress will contain a recommendation for a flock of new power authorities
like T. V. A. There will probably be one for each of the great river systems
of the country. What his advisers have been saying he has in mind is one
for the entire Eastern Seaboard, one for the Pacific Northwest, one for the
Colorado River, etc.
The reason he is sending it up soon is to take the congressional mind
off the more controversial measures now pending.
* * * *
Wall Street has been suffering psychosis neuroses over gold and 100
per cent margins, among other things. Or. at any rate, Government authori
ties attribute the recent declines to widespread shivering over these two
topics. (They do not mention strikes.)
No authorities here have anything very comforting to say about the
gold situation. They know they are in a mess, and if any one has a
satisfactory solution he is keeping it from the others. They comfort them
selves with the thought that there is nothing immediately alarming and
that current irons now in the international fires (the British working
arrangement, for one) may ease their difficulties.
The 100 per cent margins talk, however, seems to be just one of those
Wall Street rumors. The best of
authorities say there is absolutely
nothing in it. and will be nothing
for a long, long time, meaning if
ever.
Apparently what they intend
to do is this: If the market, some
time in the future, gets into a
boom stage which they consider
to be dangerous, they will use 100
per cent margins as one of the
things to hammer it down. That
,m“y a long time on, tne way things are going at present.
* * * *
Mr. R. has been saying he wants the Wallace ever-normal granary
proposal adopted, but all he is sure of getting is a hearing. The House
Agriculture Committee will hold one shortly, inviting all the farm leaders
in to ascertain what they want.
Unless insiders are very badly informed, the farm politicos are
more or less lukewarm, if not actually divived, on the subject. Con
gressional authorities expect to develop that fact at the hearings.
The granary idea was not discussed during any of the recent con
gressional conferences at the White House. The President is advised of
inner House objections. However, the hearings will help to take the national
spotlight off the Supreme Court issue, and anything which accomplishes
this should be a desirable relief, from the White House standpoint.
* * * *
The left-out-in-the-cold mood of Congress is illustrated by a story
concerning Chairman Hatton Sumners of the House Judiciary Committee
Ordinarily he would be the leader in the House for Mr. R.’s court-packing
program, just like Senator Ashurst in the Senate.
One of his dinner partners assumed as much, the other night. She
tried to make pleasant conversation by saying: "Well. I suppose you were
one of those whom the President called in and consulted about his Supreme
Court bill?”
"Nope,” said Sumners—"just called in.”
CCopyrUht. 1937.1
any office which has been created
during the term served by such mem
ber. Is the vacancy now created by
Mr. Van Devanter's withdrawal a
different kind of a vacancy than that
which could exist, before March 1,
1937, and if it is, will this not disqual
ify Senators Robinson of Arkansas or
Wagner of New York or any of the
other members of the present Con
gress to receive the appointment in
place of Mr. Van Devanter?
But contradictions are the order of
the day here, anyway. Almost at the
very moment that Mr. Roosevelt was
sending word triumphantly to the
country that he had in effect forced
one of the conservatives from the
bench because Mr. Van Devanter
allegedly was too old—his age being
78—the President signed a bill just
passed by Congress at his request
creating a special position of Coun
sellor of the Department of State, to
which he now appoints R. Walton
Moore, former member of Congress,
who is 78 years old.
(Copyright, 1937.1
Milk Helps Firemen.
Their eyes streaming, firemen fought
for an hour to shut off the valve of a
cold storage plant at Sheffield, Eng
land, from- which was pouring am
monia gas. In spite of gas masks,
they had to work in relays. A crowd
collected to watch and tearfully car
ried milk to the flreladdies as an anti
dote. Fire broke out in a gas engine,
but the ammoiila itself helped to ex
tinguish it.
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CTHE opinions of the writers on this page are their own, not
* necessarily The Star’s. Such opinions are presented in
The Star’s effort to give all sides of questions of interest to its
readers, although such opinions may be contradictory among
themselves and directly opposed to The Star’s.
Saving Court Prestige
Resignation of Van Devanter May Help Preserve
Traditional Form.
di uunuini inunrsun,
THE resignation of Justice Van
Oevanter does not come as a
surprise to this column. It is
even possible that another
justice, perhaps one from the liberal
side of the bench, will also resign
before the Summer is out. This reala
nation and any
that may follow
It may be vari
ously interpreted.
Some will say
that the retiring
Justice has yield
ed to pressure, as
many have ac
cused Justice
Roberts of doing,
in moving over
on the liberal
side.
In a sense they
have yielded to
pressure, but that
is not the im
Dorothy Thompson.
portant thing about what has hap
pened. It has been apparent that the
nine justices, all of them, without
exception and without regard for
their conservative or liberal predilec
tions, have intended, and do intend,
to save the dignity and the status
of the Supreme Court of the United
States. They have intended, and do
intend, to save the principle of
legitimate, constitutional government
in this country from personal usurpa
tion.
Some may argue that Justice
Roberts’ switch and Justice Van De
vanter’s resignation allow the Presi
dent to win the substance of his pro
posals, merely preserving the tradi
tional form. That is true. But we
may be thankful that on the supreme
bench and in Congress itself are men
who are statesmanly enough to know
that the form is prodigiously im
portant.
Government Must Be Formal.
All government, all civilization and
all democracies must be formal.
Otherwise the Nation heads straight
into chaos.
The Supreme Court does not intend,
and a majority in the Sesate do not
intend, to permit the President to fill
the supreme bench with stooges and
under the most disingenuous excusa
enlarge and pack the court. The
bench is going to be liberalized but
it is going to be liberalized in the
traditional way.
New appointments, if any. will be
legitimate appointments, to fill legiti
mate vacancies, and not newly created
Jobs to assure a yes-bench for the
President, or for any temporary ma
jority. The man who is appointed in
the retired justice's place will be
appointed In the traditional way and
not to represent on the bench the
President's wishes. This is as impor
tant a difference as possible.
Evolution in Sentiment.
The justice’s resignation is the
more effective because it comes when
the fight against the President’s pro
posals is all but won. We have
watched, for weeks now, the slow
change in the attitude of the Senate
Judiciary Committee, from the point
where there was an apparent ma
jority for the President, to yester
day, when the bill was voted out ad
versely by 10 to 8.
We have also watched the group in
favor of some sort of compromise
swing over to outright opposition. A
similar evolution has taken place in
the Senate and, though probably to a
lesser extent, in the House. The Pres
ident's proposals are beaten if they
come to a vote in the Senate, accord
ing to general reports.
Why has this happened? The po
litical strength is overwhelmingly
with the President. The political
machine has been actively support
ing him. It has cracked down on
wavering or adverse Senators with
promises of personal retaliation if
they did not support the proposals.
But the Senators have become de
creasingly fearful of these threats,
as it became increasingly apparent
that the proposal to pack the court
was aeepiy unpopular m the country.
Many Americans have been shocked;
most have been made uneasy; no
body, not even the bill’s public sup
porters, liked the manner In which
it was launched; some of them, like
Morris Ernst, admitted publicly that
it waa creating a dangerous precedent;
altogether, the proposal got the hook,
and the Representatives In Washing
ton knew it and began to feel that
they could stand again In their con
stituencies on this Issue and possibly
be re-elected even with the hostility
of- Mr. Parley.
President’s Greatest Failure.
The whole campaign has been the
greatest failure In the President’s ca
reer. It has been absolutely impossible
for his supporters to make a liberal
vs. conservative Issue out of it. First
of all, the line-up in Congress, the
spontaneous line-up, precluded that
issue.
Senator Wheeler, a liberal, who in
the last Congress fought valiantly for
the utility holding company bill, which
was the target of the ‘‘Economic
Royalists” and was opposed at the time
by his party colleague, Senator Diet
erich, came out to lead the opposition
to the judiciary bill—while his less lib
eral opponent supported it as a regular
party fellow.
Wheeler, Shipstead, Nye, Frazier,
Borah, Johnson. Democrats and Pro
gressives, are all against It. Every Re
publican is against it, which has been
by no means true of the whole Roose
velt program. The conservative Demo
crats are against it. What are left are
mostly yes-men. Not altogether. Let
us be fair. Senator La Follette and
Senator Norris are not yes-men. But
by and large the support for the bill
has been plain subservience to the
President’s wishes—and to Mr. Farley's.
Bench Was for Rights.
The attitude of the members of the
supreme bench also made it impossi
ble to present the proposal as a great
liberal measure. When Chief Justice
Hughes and Justice Brandeis coupled
their names in the statement which
dismissed once and for all the charge
that the bench was not keeping up
with its work, it became apparent that
the bench, also, which has been divided
on many questions, was not divided
on this one.
The supreme bench is an instru
ment of the state, not of the majority.
It does not represent the prevailing
congressional majority and it is not
an appendage of the presidency.
Whether or not that should remain
a fact in our American system of gov
ernment has been the issue, and the
only issue. And the votes against the
President's proposals are votes against
personal usurpation of power, simply
that and nothing more.
Catastrophe Possible.
If the President hardens and In
sists on both form and substance
this column believes that will be his
catastrophe. But perhaps we know
too little of the politician’s mind.
Whenever has it been ignoble to
admit a mistake, or unattractive to
accept defeat in a sportsmanlike
manner?
The court is on the liberal side
now. The conventions until now have
been preserved. We still have legiti
mate government. If the President
goes on insisting, not only that he
wants a liberal court but that he
wants it to be his court, organized in
his way, the whole campaign will
This Changing World
Left Dictatorships Having Difficulty Maintaining
Iron Rule Over People.
BY CONSTANTINE BROWN.
THE dictatorships of the left are seemingly incapable of maintaining
their people under iron rule like Mussolini snd Hitler are keeping
theirs.
In 8pain, despite the struggle for life and death between the
Socialists of all shades from pink to red and the Fascists of Gen. Franco,
six cabinets have been formed within 11 months.
The Spanish leaders don’t get along with each other. Various political
factions want to force their own point of view on the others. It is a
miracle that despite the internal dissension the opponents of fascism
are putting up such a remarkable
light against the Franco merce
naries.
* * * *
Hie U. S. 6. R. is now an old
established proletarian dictatorship.
Its leaders believed that the re
public was sufficiently strong to
follow the organization of the
well-established democratic coun
tries. Not only did Stalin & Co.
provide the Russian Deonle with a
Brand-new moderate constitution, but they freed the army from the politi
cal interference of civilian "inspectors.”
The Russian army leaden pointed out to the government that the old
system of having the actions of a regimental, divisional or army corps com
mander checked up. controlled and countersigned by some Communist
party member was detrimental to the national defense.
* * * *
Stalin, under the pressure of his friend Voroshiloff. and possibly fol
lowing the advioe of some general stafT officers of the allied nations, with
drew the political advisers from the military units.
The soldiers before joining the army were still put through a
strenuous political course, where the Communist ideals and doctrines
were instilled into them by Communist teachers. But there were
no civilians butting into the daily routine of the barracks.
The two treason trials of a few months ago and the investigations of
the secret police, which showed that the army might at any time run away
with the show, especially In the event of a conflagration, led Stalin to
reinstate civilian control of the army. History has shown that after every
sweeping social revolution—such as the French revolution erf 1789—if the
army becomes too strong some brainy general takes matters into his own
hands to sweep aside the high-minded theorizing civilians and establish
a reactionary empire. And the Russians do not want this to happen in their
own country.
* * * *
The result of the teachings of history and the growth in strength
and prestige of the Bed army has decided Stalin to order back commissars
with every army unit.
Henceforth no commander can give an order to his men with
out having previously explained in detail the reason, the scope and
the utility of this order to the civilian representative from Moscow.
The commanding officer's order is not valid unless countersigned
by the respective commissar.
Prom the political point of view this might be useful, because it
keeps a close check on the undue activities of high-ranking army officers.
But from the military point or view it is considered fatal that a civilian,
ignorant of military affairs, should decide as the last authority whether
or not the artillery should shoot off its guns on a certain day, or not.
And while in time of peace this might prove only a serious handicap to
the training of the army, in time of war it would be disastrous. Imagine
the United States being invaded by a foreign power and Jim Parley
ordering Gen. Mac Arthur when and how to attack the enemy.
a a a a
These tribulations of the dictatorships of the left are just so much
more incitement for the other dictators to take advantage of the internal
dissension in these countries and put into effect their plans for territorial
conquests.
a a a a
The French are worried lest the International Exposition to be opened
in Paris next month might not prove the financial success the govern
ment wants it to be.
Because of many rumors of dan
gers of war, possible political trou
ble, passible strikes and what not,
foreigners, and especially Ameri
cans, are somewhat hesitant of
paying more than a fleeting visit
to the exposition.
Press agents are wondering what
stunts they might invent to draw
as many visitors from abroad as
possible to Paris in the course of
this Summer. An enterprising
_ _ t. . ....
him uie rxencn government prevail upon
Edward, Duke of Windsor, and his duchess to be present at the opening
ceremonies and possibly pay frequent visits at certain intervals.
Since Edward Is not quite happy with the Income he is receiving
from his family, it has been suggested that he be approached discreetly
and offered a handsome sum for each visit he and his wife would make
to Paris during the exposition.
cease to have even dignity, and we
shall begin to suspect that the Presi
dent cares more for his personal pres
tige than he care6 for what he started
out to get. But such struggles for
prestige are petty, and petulant, char
acteristic of the politician, not of the
statesman Actually Justice Van I
De van ter has saved the face of the !
President—if he wants to have it |
saved.
(Copyrlsht, 1837.) I
Headline Folk
and What
They Do
Vanderbilt Hurries to
Repair Sloop for
Cup Race.
SMILING bravely at misfortune,
Harold Vanderbilt studies dam
age done to his sloop, Ranger,
in angry midnight seas while
she was being towed from Bath, where
she was built and launched, to New
port.
With the sloop bereft of her du
ralumin mast—valued at $20,000—her
Harold Vanderbilt.
nustiy oLctri scann
ing rigging gone,
Mr. Vanderbilt,
hurrying to
Bristol to meet
his partially
wrecked wind
jammer, spent no
time in repining,
vented no sailorly
rage against the
fates that preside
over wind and
wave. Instead he
system atically
went about figur
ing what could
be done to offset
disaster ana so prepare ms sloop lor
racing as candidate for the honor of
defending the storied America's Cup
against T. O. M. Sopwith's English
challenger, Endeavour II, which has
just arrived in this country to tune
up for the cup series at the end of July.
Not the sort of man to seek sym
pathy from any one, Mr. Vanderbilt
nonetheless has it in goodly measure
from all yachtsmen ana from all men
indeed who hold a brief for sports
manship and an ardent admiration
for sportsmen.
When Mr. Sopwith issued his second
challenge for the famous trophy last
Winter—he had raced unsuccessfully
for the cup in 1934 with Endeavour I—
members of the New York Yacht Club,
custodian of the cup, declined with an
amazing unanimity to have any part
in financing a new cup defender. In
the past, craft of the sort have usually
been built by syndicates of club mem
bers with the expense of some $500,000
thus shared among 8 or 10 or 12
wealthy yachtsmen.
In the present instance, with no one
willing to participate in syndicate en
terprise. Mr. Vanderbilt himself under
took all the expense, all the work, all
the worry incidental to the conduct
of cup defense. And then, with his
mighty sloop built, rigged and ready
to prepare for her initial flights, came
an accident in stormy seas which, but
for a single faint smile of good lurk
in the darkest moment, would have
sent Ranger to the bottom of the
Atlantic.
A real sailor man, Harold Vander
bilt. Unquestionably the greatest rar
ing navigator in this country and prob
ably the world. Son of the late Wil
liam Kissam Vanderbilt, he began rac
ing sail boats as a boy off Newport,
first in diminutive craft and then
finally, after graduation from Harvard
in 1907, larger boats, until at length
his schooner Vagrant became an im
portant factor in regattas along the
Atlantic seaboard. He sailed Rainbow
in the cup series off Newport in 1934,
piloting an inferior craft to victory
over Endeavour I through his sheer
genius as a racing skipper.
What time he is not sailing Mr.
Vanderbilt helps conduct his inherited
interests in the New Tork Central
Railroad. Incidentally, he is one of
the best contract bridge players alive.
CCopyrlgnt. 1937.1
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