The Charlotte News

Friday, September 2, 1938


Site Ed. Note: For more on Sherman Minton, as discussed in "Hold Fire!", see "A Bit Mixed", November 7, 1940, and its accompanying note. Minton was not the appointee to fill this vacancy to the Supreme Court left by the death of Justice Benjamin Cardozo who had died July 9. But Minton was eventually appointed in 1949 by President Truman to the Court where he served with no special distinction for seven years. The editorial's reference to antagonism between Minton and newspaper editors referred to his having introduced a bill in 1938 to make it a felony punishable by two years in prison and heavy fines, plus six months suspension from the mails for the publication, to the editor of any newspaper which published a "known untruth". After he drew nationwide editorial fire, he dropped the proposal.

The eventual appointee, who would not be nominated until January 5, 1939, was Felix Frankfurter, a Harvard law professor who had served during the Wilson Administration in several posts and who had helped to found the A.C.L.U. Generally considered liberal in his views and a proponent of civil liberties, he also believed in judicial restraint. Cardozo, not dissimilar to Frankfurter in outlook, though renowned for his sociological approach to the law, was long considered one of the brightest and most scholarly justices to ever serve. Also a Harvard law professor, he had been appointed by Herbert Hoover in 1932 and was one of three of the "nine old men", along with Louis Brandeis (WW) and Harlan Stone (HH), the latter elevated by FDR to Chief in 1941, who voted consistently to uphold New Deal legislation against constitutional challenges during the mid-30's.

This was Roosevelt's third appointment to the Court, following Hugo Black who replaced Willis Van Devanter (Taft) in 1937 and Stanley Reed for George Sutherland (Harding) at the beginning of 1938, both Black and Reed being New Deal advocates, contra the positions which Van Devanter and Sutherland had consistently advocated: thus, swinging the Court either 5-4 or 6-3, including sometime New Deal proponent Owen Roberts, decidedly away from the positions abhorrent to FDR which had led to his 1937 proposal for the infamous "Court-packing" plan whereby when a justice reached 65, an assistant justice would be appointed up to 15 total. Met with political fallout from both sides of the aisle, the plan withered and died on the vine, costing Roosevelt the considerable newly won political capital from the landslide victory over Alf Landon in 1936.

The deaths and retirements which followed, however, fully eight in quick succession through mid-1941, including Chief Justice Hughes, allowed FDR seven appointments in just four years. Two months after the appointment of Frankfurter would come William O. Douglas, at age 39, replacing retiring Louis Brandeis, a New Dealer for a New Dealer. Then "old man" Pierce Butler (Harding) would die at the end of 1939, replaced by Attorney General Frank Murphy at the beginning of 1940. Then Hughes (HH, Taft as Justice) was replaced by the elevated Stone as Chief, June 12, 1941. Robert Jackson, Attorney General through mid-1939, was appointed justice also on June 12 to fill the vacated justice's seat of Stone. Senator James Byrnes of South Carolina, later Secretary of State under Truman, also appointed on June 12, replaced "old man" James McReynolds (WW), who had died in January, 1941.

While on the subject of the Court, we note that over the Labor Day weekend in 2005 William Rehnquist, longtime member, Justice from 1972 to 1986, and since 1986, Chief Justice, passed away. We often didn't agree with the Chief Justice's stands, and especially the Justice's stands, often a lone dissenter in his early years on the Court. Often he was seen as "intellectually dishonest", that is taking positions which strained established legal principle to reach a pre-ordained conclusion. But he comported himself well as a man and had a rich sense of history of the Court and the country, and for that we respected him.

As history will have strange ironies, Senator Howard Baker of Tennessee was Richard Nixon's initial choice to fill the spot left by the death of John M. Harlan (DDE) in September, 1971. Senator Baker apparently wished to take his own counsel for a bit before accepting the position, but Nixon grew impatient and instead selected his Assistant Attorney General Rehnquist, a former law clerk of Justice Jackson. Thus, by so doing, Nixon began a decidedly rightward turn of the Court which had arguably begun, albeit only by moderate degrees, with the appointment five days earlier of Lewis Powell, a soft-spoken Virginian who had served on LBJ's Crime Commission during the mid-sixties, to replace the staunchly liberal civil libertarian Hugo Black, who had also died in September, 1971, a few days before the more moderate but progressive Harlan, grandson to the lone dissenter in Plessy v. Ferguson in 1896. These two appointments completed four for Nixon who had come to office with two in quick succession, Warren Burger and Harry Blackmun, after the derailment by Southern Senators and Republicans of the elevation by President Johnson to Chief Justice of longtime LBJ counsel and friend Abe Fortas, (originally appointed in 1965 to the Court by LBJ), following the summer, 1968 retirement of Earl Warren, a Republican who despised and distrusted Nixon from his own California gubernatorial days when the young Congressman had besmirched Helen Gahagen Douglas--wife of actor Melvyn Douglas and a New Deal Democrat who had served in Congress since 1944--, Nixon calling her the "pink lady" in the 1950 senatorial campaign.

Fortas, after the embarassment in the fall over his filibustered nomination, then resigned his seat as justice in early 1969, giving Nixon his second appointment. Nixon's four, however, despite the landslide re-election in 1972, would end with no more after Rehnquist.

For Senator Baker of course would be sitting immediately to the left as minority vice-chair of the Senate Select Committee on Watergate in the spring of 1973 when Committee Chairman Sam Ervin banged his gavel and commenced hearings into what on the green earth in God's nomen six men with apparent connections to the Committee to Re-Elect the President, and with some other organizations, were doing burglarizing the office of Larry O'Brien, former special assistant to President Kennedy and by this point Democratic National Chairman, by taping down latches in the Democratic National Headquarters on a warm June night in 1972, down by where the water ran, and rand and rand.

In yet further irony--perhaps the deposed Poor Richard's Damoclesian spell cast far from the grave-- Rehnquist, of course, would later preside, in accord with the Constitution's mandate, over the brief but exhilaratingly titillating Senate proceeding in February, 1999. To the Chief's great credit, however, as was his personal style, he presided over it in a decidedly disinterested and un-flamboyant, nearly even insouciant, manner, sine die, sine die. And the defendant in the galley was acquitted, to the relief of most in the country.

Of Rehnquist's immediately nominated successor, John Roberts, most know little, though he appears to be an honorable sort of man. He will be, if confirmed, the youngest Chief of the Court since John Marshall, the pre-eminent Chief, the fourth, who markedly advanced the power and prestige of the Court from its theretofore rather cloak room stature among the branches, taking the bench in 1801 at age 46 and staying 34 years. Roberts is 50 and thus would become the third youngest Chief, the other two on the list of young 'uns, those under 55 at appointment, being John Jay, the first Chief at age 44, staying but six years, and Oliver Ellsworth, 51, the third, in 1796, leaving after only four years to make way for Marshall. The average age has been 58, (61 if the first four, all under 56, are excluded). Most have served until death, only six of the sixteen departing early by retirement. The average tenure has been thirteen and a half years, with Marshall serving the longest, followed by his successor, Roger B. Taney, at 28 years through 1864, including during his tenure most notably the infamous 1856 Dred Scott decision, Scott v. Sandford, the wobblediest bunch of gobbledy-gook probably ever laid down in a casebook, though Taney himself was ironically a Maryland-bred abolitionist raised in a slave-holding family whose conflicted beliefs in individual liberties likely led him to the cornerstone to resolve the conflict in favor of his parentage, (later, the story goes, though of wobbling provenance itself, that when he ruled in Ex parte Merryman, while in the now archaic practice of justices sitting periodically as circuit judges, that Lincoln's suspension of habeas corpus was a usurpation of power reserved to Congress, Lincoln and Secretary of State Seward nearly had him arrested as a traitor for supporting traitors), then Melville Fuller, 1888-1910, including in his tenure the equally notorious font for the "separate-but-equal" doctrine, Plessy v. Ferguson.

Rehnquist served the longest term since Fuller, at 18 years, beating his predecessor, Warren Burger, by one year, and in turn Burger's predecessor, Earl Warren, by two years. In the last 95 years, the average tenure has dropped to eleven and three-quarter years. Average age at death or retirement among the sixteen Chiefs has been 72, 76 after setting aside the early retiring first three, 74 for the eight since 1910.

In perhaps another bit of irony, Rehnquist is the first member of the Court to die while still sitting on the Court since his predecessor as justice, Harlan--though Justices William Brennan, Thurgood Marshall and Harry Blackmun died within months of their retirements in 1990, 1991, and 1994, respectively.

The unchanged membership of the Court from 1994 to 2005 makes it the second longest standing Court ever, the longest having been the 1811-1823 Court, serving during the second term of President Madison and both terms of President Monroe.

Sine die. Sine die.

Hold Fire!

When it was rumored that the President was considering Sherman Minton, Indiana's blatant and unrestrained Senator, for the vacancy on the Supreme Court, we refused to bite. Sherman Minton is, of course, the last man for this high place. In all probability, the only reason his name was mentioned at all was to bait the newspapers, which have a private quarrel with him.

Now it is rumored that the President is considering Governor Johnston of South Carolina for the vacant Federal judgeship in that state. The President is said to feel that he should consult Governor Johnston for losing the Senatorial nomination which he earnestly wished Cotton Ed Smith not to have.

Again we refuse to bite, not because it is incredible that the President should dally with the thought of expressing his rancor at being turned down by the people of South Carolina, but because mature deliberation and even the sketchiest of investigation should convince him that Governor Johnston is not judicial timber. Surely, the executive head of this country is above such spitework.

Sneaking Into Socialism

Penderlea Homesteads, a subsistence farming project built at the expanse of the Federal Government is going into the silk hosiery manufacturing business. Along with four other such homesteads, it is going to borrow from the Government ($750,000 Penderlea's case) to build and equip knitting and silk throwing plants, to which the homesteads associations will hold title and on which the Government will hold a mortgage. Then the association and a cooperating hosiery manufacturer will invest equal amounts in an operating company to be run by the manufacturer. After rent, amortization, salaries, wages and other charges, including taxes, we suppose the profits will be split, the associations to apply all above five per cent as a further principal payment on their Federal loans.

At first glance, it looks like direct Federal competition with private industry, and in a sense it probably is. But it is no worse, perhaps, than RFC loans to businessmen large and small. And something has to be done to salvage the Government's $1,500,000 investment in Penderlea and the other homesteads, for it is frankly conceded that they can pay their own way from agriculture and related sources.

At the same time, and without begrudging the homesteaders, this opportunity of bettering their state, the scheme looks distinctly socialistic. The Government is furnishing not only the necessary capital but the initiative, as well. And what it does for a few hundred families whom it has already provided with homes and farms, it should do for all the people--or none. But before that suggestion is adopted, it might be a good idea to see how this enterprise turns out and how much it costs the taxpayers.

Who's Un-American Now?

If a hundred men were asked what ought to be done about Harry Bridges, the trouble-making alien who rules the maritime labor roost out on the West Coast, 75 of them probably would say, deport him and good riddance. Good riddance it would be all right, and there would be a certain elementary fairness in it. If Bridges hasn't thought well enough of this country in his eight years' residence here to "become a citizen of it, let him go back where he came from." Sic

But it so happens that the elected representatives of the 75 men had drawn up rules governing the admission of aliens to this country and the terms on which they may stay here. It is not required of them that they become citizens. In fact, no special inducement to become citizens is held out to them. Only for certain prescribed reasons may they be deported, and then only on proof of their undesirability for specific deportable reasons.

Something like this was the burden of Madame Secretary Perkins' reply to Chairman Dies of the committee investigating un-American activities, who had demanded the summary deportation of Bridges. She said she wouldn't do it until (1) the Supreme Court had ruled that being a Communist was grounds for deportation and (2) it had been proved that Bridges was a Communist. And that, for all that our 75 men may urge that Bridges be sent packing, and for all you may think of Madame Perkins, it is the American way. To deport people you simply didn't approve of would be Hitlerism.

They've a Start On Us

"Mutual confidence and cooperation"--that's what British labor relations are based on. Thus reports the special Presidential Commission which made a survey of how our English forebears manage to get along so much more amicably with each other than do we.

Two reasons for this occur immediately. The first is that the British recognize the principle of unionism for a long time, whereas American industry still mistrust it. There is a sort of discipline that comes both to employers and employees through experience. The beginnings of any broad labor movement are unsettling, its manifestations positively fearsome. Even in the United States, however, there are industries in which "mutual confidence and co-operation" govern labor relations. The planning industry is one. This is not to say that both sides are continually striving to get the best of one another, but they confine themselves largely to bargaining. Guerrilla tactics are taboo.

The second reason for the enviable tranquility of English labor relations is the non-concentration of power in the hands of any one or two labor big shots. They have no William Greens or John L. Lewises and naturally they are not compelled to endure a struggle between them for dominance. Unionization in England has been a gradual spontaneous process, whereas in this country it has been high-pressured from delux headquarters--by remote control, so to speak. In typical American fashion, our labor is determined to assert itself in a hurry and forcefully. It can't take things gradually.

It's a Along Way to Utopia

It may be as the President said after South Carolina had renominated Senator Smith, that--

It is often true that it takes a long, long time to bring the past up to the present."

But out in California, they're taking "shortcuts to Utopia." Already they're miles ahead of tomorrow, and that cost the President's man McAdoo his nomination. The winning candidate ran on the platform of "$30 Every Thursday" for every unemployed person over 50. What arrangements they're going to make about days off and vacations, we don't know. It'd be pretty tough if a fellow had to keep on not working right through the Summer in order to draw his pay. About the only way he can protect himself would be to take out employment insurance, the premiums to be paid by the employer for whom he wasn't working.

We always knew that California when it started raising more cotton than most of the thirteen original cotton-growing states, would go crazy someday. As for South Carolina, it's poor and proud of it. For people would rather have the 50-cent daily wage which Cotton Ed didn't say was good enough for them than anybody's $30 every Thursday. Unless they first saw the $30.


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