The Charlotte News

Saturday, February 12, 1949


Site Ed. Note: The front page reports that the Soviet news agency Tass broadcast that Yugoslavia could not receive aid from Moscow under its Economic Council of Mutual Aid until it changed its hostile attitude toward the Soviets. Yugoslavia had protested being left out of the agreement formed the previous month between Russia, Bulgaria, Hungary, Poland, Rumania, and Czechoslovakia.

In London, it appeared at the Big Four Foreign Ministers Council meeting that Yugoslavia was preparing to compromise its territorial claims against Austria, a major roadblock to conclusion of the Austrian treaty.

In Vatican City, Pope Pius XII warned of a "conspiracy against the Lord" being conducted in certain countries and excommunicated those connected with the arrest, trial and sentencing of Josef Cardinal Mindszenty in Hungary. In addition, he issued a declaration of infamy and perjury against those involved.

In Geneva, Methodist Bishop Paul Garber, former dean of the Duke University Divinity School, stated that the arrest of the 15 churchmen in Bulgaria for alleged treason and espionage was a deliberate violation of religious freedom under the Bulgarian Constitution. The World Council of Churches, whose members were included in a list of alleged spying "contacts" released by the Bulgarian Government, denied any involvement in spying. Dr. Garber, also listed among the "contacts", said that he had visited Bulgaria in November, 1947 for an annual Methodist conference in Sofia but that his visit was entirely connected to religious affairs and was not secret.

In Berlin, Edward Lada, former American paratrooper, was sentenced by a U.S. military court to seven months in jail and fined $70 for hitchhiking to Berlin to see his German girlfriend and their two-year old child. He was acquitted of the most serious charge, illegal entry through the French zone of Germany from France, for lack of jurisdiction. He was convicted of having illegal American and British currency and of a three-day jail escape at Christmas, as well as illegally having his Army identification after his service had been terminated. Mr. Lada said that he hoped to wed his girlfriend soon. When he had originally come to Berlin, a second girlfriend had stepped forward but said that she was through with him when he said he had come only to visit the other.

A House Armed Services subcommittee approved plans for building a 161 million dollar radar screen around the country which could, with the cooperation of Canada, extend across Canada to the north. The full Committee would likely consider the bill the following week.

In Philadelphia, the transit strike of 11,000 workers continued into its second day, as Michael Quill, head of the Transport Workers Union, predicted that it could last a month. The Mayor called for resolution lest a state of emergency be declared "with all that means". He did not explain what it would mean. Traffic continued to be snarled and many commuters hitch-hiked to work.

In Newark, N.J., a five-year old girl without arms underwent a successful operation to provide her with one mechanical limb, operated from her existing musculature. Her other stump was not yet developed enough for the procedure but could later be adapted. A railroad engineer, who had wondered why the little girl never waved as did other children when the train passed, became aware of her condition and got other trainmen and newspaper readers involved in raising $4,200 for the procedure.

Near Quincy, California, 4,000 dam workers in the Feather River Canyon were stranded in snow, while another 500 persons had been stranded in Stibnitz, Idaho for more than a week. An airlift of food was being arranged for the latter group. High winds and sub-zero temperatures continued to plague other parts of the West.

In Raleigh, a law was introduced to the Legislature which would ban "immoral and indecent shows" and fortune telling in Haywood County, among other light business of the day, as the House adjourned early for President Lincoln's birthday.

Dick Young of The News advises residents in the Charlotte suburbs who had unpaved streets and wanted them paved with lightweight macadam to make their requests forthwith for the summer months and have cash in hand for the City to perform the procedure, at a cost of $1.80 per frontage foot for both sides of the street, divided between opposing property owners.

We'll take three feet, for a footpath across the way.

Permanent paving, with a concrete base, could be effected at a higher cost, payable over ten years, provided a majority of the property owners on a given street signed a petition for the paving. Normally, this paving was accomplished by bond money but presently there was none available until after the June bond election.

We'll settle for the three feet.

John Herndon, in Winston-Salem, tells of Forsyth County celebrating its centennial in May and, in preparation for the event, the male residents having adopted 19th century hirsuteness, with 10,000 residents growing beards to match their pioneering forebears. Chairman Joe King of the Bushgrowers' League estimated that 5,000 citizens were participating in the chin growth. Contests were being held for various types of beards and civic clubs were planning to award prizes to their hairiest members. The Police Department was also participating, with patrolman "Shorty" Harrison having grabbed first prize of $20.

On the editorial page, "Keeping Up With the Joneses" tells of Governor Kerr Scott candidly telling the General Assembly that it could not pass his whole program without raising taxes. He proposed 80 million dollars worth of spending on education beyond that proposed by the Advisory Budget Commission, which had recommended a record overall budget of 467 million dollars for the ensuing two years. The spending proposal would consume all of the postwar surplus except for a 30 million dollar buffer fund to protect State salaries, a departure from spending tradition.

The piece concludes that the people likely would prefer the Governor's education spending program before the rural road spending program of 200 million dollars over four years, though both had merit. But the State could not afford all of the Governor's program and remain on sound fiscal footing.

"Marshall Plan Is Working" finds the Marshall Plan to have been a success in its first year of operation and so urges passage by the Congress of the 5.58 billion dollar appropriation sought by ERP administrator Paul Hoffman for the second year. The piece agrees with Mr. Hoffman that it was a good investment in stability and peace.

The best evidence that the plan was working was that the recipient nations had shifted their needs from asking for more than half the aid in food and consumer goods to machinery and other capital equipment, indicative of economies being placed on self-sustaining foundations, based on production rather than consumption.

A piece from the Atlanta Journal, titled "The Bill to Gag Georgia's Press", tells of a bill passed by the Georgia House which would provide for punitive damages for libel by a newspaper for any false, defamatory statement about a person, despite honest and unintentional errors.

The piece suggests it as a move to allow attorneys to engage in "libel shystering" as before 1939 when the existing law had been enacted. It would chill Georgia editors, especially of small publications, and restrain criticism of public officials.

It had been suggested by one legislator that a June 9, 1946 editorial in the Journal critical of the gubernatorial candidacy of the late Eugene Talmadge would have been a proper subject under the new statute. But, it assures, truth would have been a defense had Mr. Talmadge elected to sue, which, to his credit, he had not.

One State legislator had even suggested that the 1939 law was an attempt "to fuse the races and make us mongrels."

The right to express opinions on matters of public concern was fundamental to liberty and a free press, and had to be preserved against attacks as that presented by the proposed libel law, embracing negligent defamation.

While not pertinent to the proposed law under examination in the editorial, for more on the law of defamation of public officials, where "actual malice", that the defendant knew that the defamatory fact published was false or that it was published with reckless disregard of its truth or falsity, is now required to be shown by the plaintiff before recovery of damages may be had, see New York Times v. Sullivan, 376 U.S. 254, decided in 1964. For the law of defamation of a "public figure", not an official, requiring for recovery for a false, defamatory statement a showing by the plaintiff that the defendant engaged in "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers," see Curtis Publishing Co. v. Butts, 388 U.S. 130, decided in 1967.

Drew Pearson tells of Missouri Congressman Dewey Short of the House Armed Services Committee lecturing Pentagon generals against increasing the number of Army officers by 3,500 and Air Force officers by 7,500, compromised downward from higher figures. Mr. Short urged that more planes, weapons and enlisted men were needed, not more officers.

A Philadelphia dairyman complained to the President about the Missouri Highway Patrol forcing one of his trucks, making an emergency delivery of milk to relieve a shortage, to stop for being overweight and then requiring the driver to dump on the spot 1,800 pounds of milk. The truck was not allowed even to proceed a few miles to a milk station to dump the milk where it could be preserved.

New Senator Lyndon Johnson of Texas said that he had never had any luck at drawings when twelve new Senators were asked to draw lots for two available seats near the front of the Senate chamber. All of the other ten Senators then drew before Senator Johnson and Senator Robert Kerr of Oklahoma. Both men then reached into the hat at the same time and drew the short straws for the two front seats. Senator Johnson had bet Senator Clinton Anderson a nickel that he would get one of the preferred seats and thus won the bet.

A GOP caucus of House members showed many favoring the reciprocal trade agreement extensions proposed by the Administration over the limitations imposed by the 80th Congress. He provides details of the behind-the-scenes discussion.

Marquis Childs finds that Governor Thomas Dewey's Lincoln Day dinner remarks to the GOP rang true, that the party was schizoid, torn between the loving past of the Old Guard and a hostile future of progressivism. Mr. Dewey had recommended a middle course.

Governor Dewey's optimistic suggestion that a shift of 29,000 votes in three states would have delivered the electoral college to him ignored the fact that had it not been for Henry Wallace and the Dixiecrats together siphoning off 2.2 million votes, the President's landslide would have been of even greater proportions, both popularly and electorally, Governor Thurmond having grabbed 38 traditionally Democratic electoral votes in the South. Additionally, the shift of only a small number of Wallace voters in New York to the President would have given him that state's 47 electoral votes and deprived Governor Dewey of the victory in his adopted home state.

The truth was that the Democrats had won despite the desertion of the left and right wings of the party and despite President Truman being unpopular.

Senator Margaret Chase Smith of Maine had recommended a new type of Republican committee, with three Senators, three Representatives and two members of the RNC. In that manner, with new blood infused to the Committee, the traditionalists presently controlling the RNC would be outweighed.

Mr. Childs finds it surprising that Governor Dewey had, during his speech, berated Administration policy on China when the Communists were taking over that country with American weaponry seized from the demoralized Nationalist troops who had given up. He offered no alternative policy to that pursued by the Administration, limited aid without direct military involvement. Governor Dewey had never offered any alternative policy during the campaign.

Also sounding hollow was his taking to task the Administration for top-heavy bureaucracy and waste at a time when a majority of Republicans in Congress were objecting to implementing the recommendations of the bipartisan Hoover Commission to provide the President with reorganization authority. Such may have been the result of an eighteen-year habit of saying "no".

Mr. Childs suggests a good psychiatrist for the GOP. But as in mental illness, the patient had to want to get well before recovery could begin.

James Marlow discusses the first two of fifteen scheduled reports from the Hoover Commission. The initial indications were that salaries of Government personnel were too low to obtain those best qualified, that the Executive Branch was too cumbersome to enable spotting of its best personnel for advancement and was far too large. In less than twenty years, the number of civil service employees had risen from 570,000 to 2.1 million. The number of bureaus, agencies and services had multiplied four times to 1,800. The annual budget had increased from 3.6 billion to over 42 billion dollars. (He does not, however, point out that over half of that latter sum was for defense and foreign aid spending.)

The Commission consisted of six Republicans and six Democrats and was not an attack on President Truman's Administration. The President agreed with former President Hoover that the Government needed reorganization.

The Commission had heard from over 300 experts during its 16-month tenure and delivered the most thorough analysis of the Executive Branch ever conducted.

The 80th Congress had asked for the report but now that the new Congress was getting it, there was a tendency to try to carve exceptions for particular favorite agencies, something which the Commission had warned would undermine the process of reorganization before it got started.

A letter writer finds that ABC-controlled sale of liquor was not justified because of the criminal activity which occurred from use of alcohol.

A letter writer responds to a letter of February 4, saying that he knew of few instances of British friendship to the country while able to list many acts of British enmity, starting with the Revolution, the War of 1812, and the British support of the South during the Civil War. He asserts that Winston Churchill was able, in his "wily, flattering approaches to Roosevelt", to inveigle the U.S. into World War II.

Americans, he asserts, had the right to hate England but England had no right to hate Americans. He concludes, however, that it is a trait of human nature to hate the person one had deliberately wronged.

A letter writer finds extravagant the rural road-building program proposed by Governor Scott.

The official Republican response to the death of Justice Antonin Scalia yesterday, led by that of Senate Majority Leader Mitch McConnell of Kentucky, is, as an understatement, outrageous and constitutes an attempt to undermine the Supreme Court and an assault on the fabric of the Constitution. It calls for nothing less than ouster of Senator McConnell from his leadership position, if the Republican Party is to retain any semblance of credibility as anything more than a bunch of partisan hacks.

No sooner than the announcement of the death of Justice Scalia was made, the campaign began to try to sidetrack the nomination of a replacement by President Obama, with more than eleven months left in his term, nine months until the election. The general party line went: "So sorry to hear of the death of the great Supreme Court Justice Scalia, and any replacement should wait until the next president takes office."

That is not only stupid but unseemly. The idea of hamstringing the Court business for nearly a year is outrageous beyond words. Not only is the Court absent a Justice but is also absent a swing vote, meaning that 4 to 4 decisions would leave standing lower court decisions in all such cases, rendering the Supreme Court a nullity for a full year in those matters most hotly contested before the Court, causing confusion to justice and the state of the law in those areas for the time being.

There is no better precedent for a President in his last year in office or during a re-election year making an appointment to the Supreme Court than that of President Washington in 1796, appointing both Samuel Chase, confirmed in late January of that election year, and Oliver Ellsworth, confirmed in March, President John Adams, who appointed Alfred Moore of North Carolina in April, 1800, when President Adams was standing for re-election, and then appointed John Marshall as Chief Justice in early 1801 after his defeat for re-election, President Thomas Jefferson, who appointed William Johnson in May, 1804, when President Jefferson was standing for re-election, and President James Madison, who appointed Joseph Story in May, 1812, as President Madison stood for re-election. If four of the principal Founders believed it appropriate, who is some Republican Party hack in 2016 to quibble with that process?

Senator Charles Grassley of Iowa, a non-lawyer who is chairman of the Judiciary Committee, threw in his two-cents worth, claiming that no appointment of a Justice had been made by a "lame duck" President in eighty years. That statement betrays a lack of understanding of history through which Senator Grassley lived. In 1968, Chief Justice Earl Warren, appointed in 1953 by President Eisenhower, announced in June his intention to resign the Court as soon as a replacement was confirmed. President Johnson, not running for re-election, immediately nominated Justice Abe Fortas to be elevated to Chief Justice and U.S. Court of Appeals Judge Homer Thornberry to be his replacement on the Court. Afterward, there proceeded the disgraceful spectacle of a Southern filibuster of the nomination of Justice Fortas, who became a target also of Republicans, causing him to withdraw from the nomination process and ultimately, the following year, to leave the Court. The result was that President Nixon got two immediate appointments to the Court, Warren Burger as Chief and, ultimately, after two failed nominations, those of Clement Haynesworth and Harold Carswell, Harry Blackmun, eventual author in 1973 of Roe v. Wade, as Justice.

That sea change began a shift of the Court to the right, even if Justice Blackmun, himself, turned out moderate to liberal. When Justice Hugo Black retired in 1971, he was succeeded by Lewis Powell in 1972, a moderate. At the end of 1971, Justice John Harlan died and President Nixon appointed William Rehnquist, the most conservative Justice on the Court since the 1930's. At that point, with the confirmation of Justices Powell and Rehnquist on the same day in early 1972, Republican appointees were in the majority on the Court for the first time since early 1939, when Justice Felix Frankfurter became FDR's third appointment, replacing Hoover-appointee Justice Benjamin Cardozo, starting the shift to the FDR-dominated Court, complete by 1943. Only the seat of Justice Owen Roberts, appointed by President Hoover, remained Republican, and continued to be so when President Truman appointed his successor in 1945, Republican Senator Harold Burton. Chief Justice Harlan Stone was also a Republican, originally appointed by President Coolidge, though elevated by FDR at the retirement of Chief Justice Charles Evans Hughes.

By January, 1972, the Court consisted of six Republican appointees and three Democratic appointees, two by President Eisenhower, Justices William Brennan and Potter Stewart, four by President Nixon, Chief Justice Burger, and Justices Blackmun, Powell, and Rehnquist, one by President Kennedy, Justice Byron White, one by President Johnson, Justice Thurgood Marshall, and one remaining FDR appointee, Justice William O. Douglas. Justice Douglas retired in 1975, succeeded by Justice John Paul Stevens, appointed by President Ford, making the Court then seven Republican appointees and two Democratic appointees. It would remain in that array until 1991 when Justice Marshall resigned and President George H. W. Bush appointed Clarence Thomas as his successor, raising the Republican appointees to eight in number. That majority continued until 1994, when Justice Blackmun resigned and President Clinton appointed Stephen Breyer as his replacement.

The Court has thus remained a majority of Republican appointees since 1972, 44 years, until the death yesterday of Justice Scalia. The Court now consists of four Republican appointees, one by President Reagan, one by President George H. W. Bush, and two by President George W. Bush, and four Democratic appointees, two by President Clinton and two by President Obama.

Only once before in the history of the republic has one party dominated the Supreme Court for as long as 44 years. That was during the period between 1864 in Abraham Lincoln's Presidency and 1939, 75 years.

It is time, once again, for a change.

The ideological make-up of the Court has never followed party lines, probably for the reason that good jurisprudence is always liberal in its outcome if it is based, as it ought inherently to be, on the most liberal of governing documents the world has ever known, the United States Constitution. We do not wish to trade in that document, via third-rate interpretations, for a conservative Constitution, which the Founders, plainly by the words, did not ever intend, that is one which favors corporate rights over those of individual citizens, one which seeks to truncate civil liberties in favor of the State rather than policing assiduously and limiting Government intrusion on civil liberties, one which seeks to elevate the rights of states over the Federal Government and the Supremacy Clause.

There are many examples of moderate to liberal Republican appointees to the Court in modern times, Chief Justice Stone, Justice Cardozo, Justice Owen Roberts, Chief Justice Warren, Justice Harlan, Justice Brennan, Justice Stewart, Justice Blackmun, Justice Powell, Justice Stevens, Justice David Souter, appointed by President George H. W. Bush, etc. There are also examples of Democratic appointees who have tended at times in certain areas of the law to be conservative, Justice White, a Republican appointed by President Kennedy, Justice Frankfurter, Justice Sherman Minton, appointed by President Truman, Justice James McReynolds, appointed by President Wilson, etc.

It should also be noted that the last time there was a Democratically-appointed Chief Justice was in 1953, when Chief Justice Fred Vinson, appointed by President Truman in 1946, died. His replacement, Chief Justice Warren, was more liberal than Chief Justice Vinson. Nevertheless, we have not had one party controlling the appointment of the Chief Justice for 63 years since the early days of the republic when President Adams, in 1801, appointed John Marshall, followed by the tenure of Roger B. Taney, appointed in 1836 by President Andrew Jackson, remaining as Chief Justice until his death in 1864. During the long Republican domination of the Court between 1864 and 1939, there was a Democratically-appointed Chief, Melvin Fuller, appointed by President Grover Cleveland in 1888, remaining until 1910, when President William Howard Taft elevated a Democrat, Justice Edward White, appointed originally by President Cleveland, to become Chief, remaining until 1921.

So, with Republican domination of the Court for the last 44 years and Republican control of the Chief Justice's seat for 63 years, there is absolutely no justification for any Republican asking President Obama to refrain for nearly a full year from appointing a successor to Justice Scalia in the hope that it might result in continued Republican domination of the Court. Republicans trying to politicize the Court and sustain its "conservative" tilt do not seem to respect the popular will of the American people in the last two quadrennial elections or the last five of six presidential elections. Why should the Supreme Court be an institution dominated by Republican conservatives when in only one of the past six presidential elections have the majority of the people voted for such a candidate?

And to try to make the next election a referendum on the make-up of the Supreme Court is an abomination to everything we hold true in our democracy and certainly an abomination to the Constitution, which seeks, to the utmost practicable degree, to insulate the judiciary from the vicissitudes of transitory political winds. Were the shoe on the other foot, we can bet that a Republican President would no more hesitate than did President Nixon from 1969 through 1972 to appoint Republicans and conservative Republicans to begin to tilt the balance of the Court, following the debacle of the withdrawn Fortas and Thornberry nominations of 1968 under President Johnson.

If the Republicans try in the Senate to hijack the process and refuse to confirm President Obama's choice to the Court, then that ought be a critical issue in the coming election for the control of the Senate and the Presidency, to test whether the Republican Party as a whole today respects the Constitution and its provision for executive powers, except when they occupy the White House, and whether, more generally, they respect it as a liberal document or merely pay lip service to the parts they like, such as an absurdly narrow reading of the Second Amendment, reading out the inceptive words regarding a "well-regulated militia", and reading out, by fiat accomplished through Republican conservative jurists, the other language they simply do not like, until we have a Government of the billionaires, by the billionaires, and for the billionaires, such that billionaire government will not perish from the earth.

We hope that President Obama nominates a person to the Court of impeccable legal credentials, already well-known to the country and the Senate, so that there can be no issue of qualifications, and one who is decidedly liberal in viewpoint. And if rejected, we hope that the President will continue to send nominees to the Senate as many times as there are months before the next election, to make the point and to keep the point in the headlines, daily, until next November.

There is a reason why the Republicans want to control the Supreme Court. They are quite aware that, more than any other institution of the Federal Government, the Supreme Court directly affects our lives on a daily basis by its decisions, more so than the Congress, more so than the President. For it is the Supreme Court which, in contested matters regarding the limits of state or Federal power, always gets the last word. And it is the Supreme Court to which appointments are made for life tenure, as in the other Federal courts.

Ordinarily, under such circumstances, we might suggest a moderate replacement for Justice Scalia. But not now, not after the way the Republican leadership, especially the irresponsible leadership of Senator McConnell, has disgracefully handled the matter during the past 24 hours. If they continue their struggle against reality and succeed in blocking a good nominee, or, in series, two or three or four or five or six or seven nominees in the next nine months prior to the election, they might wind up getting what they richly deserve from President Clinton next January, the most liberal Justice in the history of the country, confirmed easily by an overwhelmingly Democratic Senate. We suggest therefore to the Republicans that they curb their overly voracious wish list and take what they have placed before them.

The question in the nomination and confirmation process of the next Supreme Court Justice ought not be whether the nominee is sufficiently conservative or objectionably liberal or somewhere in the middle of the political-judicial spectrum. Rather it should be whether the nominee first has the requisite legal qualifications for the position and then only whether the nominee has the general outlook which befits the Constitution, not as some small few of the people would like it to be written, not as some slap-happy linguistic gymnast, making pretension to legal scholarship, would interpret it by bending it back on itself in casuistry, but rather how it was meant to be interpreted, by its plain words redundantly stated, liberally, with an eye toward expansive rights of the individual and the people as a whole, whether confronted by the individual State or the United States as a governmental entity, not a narrowing of those liberties. That was the Spirit of '76 and remained the spirit of the Constitution, as embodied most clearly in the both the Preamble and the Bill of Rights.

Happy Valentine's Day.

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