Colonel Roosevelt (27 page)

The judge was clearly spoiling for a fight, and Roosevelt was quick to oblige. As he explained to Elihu Root, “
When I’m mad at a man I want to climb right up his chest.” Speaking extempore in Concord, Massachusetts, to a supportive crowd, he accused Baldwin of holding that the Constitution gave industrial employees the right to sign contracts that later prevented them suing for loss of life and limb.

Baldwin, incensed at newspaper reports of the speech, denied that personal feelings had influenced his
Hoxie
decision.
In an open letter addressed to Roosevelt, he insisted that he had ruled according to legal precedent—specifically, the
“fellow-servant” defense hallowed by common law—and pointed out that his own campaign in Connecticut touted workmen’s compensation. “I trust that your remarks at Concord were misinterpreted; if not, you certainly were misinformed. If you did, in fact, make the charge against me, or one substantially of that character, I write to request that you would retract it.”

In a return open letter of his own, Roosevelt stood by the substance of what he had said. “I feel that it is in the highest degree retrogressive (or, if you
prefer the term, Bourbon and reactionary), to take the view that the fellow-servant rule … rests … ‘upon consideration of right and justice.’ ”

The exchange was an obvious first skirmish in an ideological battle whose repercussions would probably extend far beyond the current campaign. At stake was the classical, or “mechanical” jurisprudence of Baldwin and his constructionist counterparts on the Supreme Court
versus
the “sociological” jurisprudence of William H. Moody and other progressive legal thinkers. The common law itself needed to be redefined, either as the unchanging thing it had seemed to be through most of the nineteenth century, or as Justice Oliver Wendell Holmes, Jr. (another Roosevelt appointee), had famously proposed, as a codification of “
the felt necessities of the time.”

Nobody “felt” the changing demands of American society more viscerally than Theodore Roosevelt in the fall of 1910. Herbert Croly intellectualized them; Moody and Holmes gave them constitutional sanction; La Follette and Pinchot formulated them as dogma; writers as various as Upton Sinclair, Theodore Dreiser, and William Allen White gave them literary expression. But Roosevelt was unique in the force of his conviction that these “necessities” must be translated from desire into political reform—unique, too, in his ability to persuade voters of the possibility of such reform. He “felt” so strongly that he was prepared to temporize, pleading for Republican unity, as progressivism burgeoned into the fundamental issue of the next presidential election. “
One thing always to remember in politics,” he told White, “is that it takes a long time to overcome inertia, and that, when it has been overcome, it takes an equally long time to stop momentum.”

Judge Baldwin, by contrast, amounted almost to a caricature of the old paternalist neurosis, on the wane everywhere except on Wall Street and in Brahmin Boston. He believed not only in states’ rights over federal power, but in trusts as always trustworthy, and the rich as “
stewards for the public good,” not to mention flogging, castration, and other methods of social control. As such, he was clearly a candidate, not only for governor of Connecticut, but for one of the most devastating weapons in Roosevelt’s arsenal: a no-holds-barred, public “posterity letter.”

Nothing in their previous correspondence could have prepared Baldwin for the missive he received on 2 November:
two thousand words long, specific, and packed with argument. Readers of the newspaper transcript had no need to consult
African Game Trails
for further evidence that the Colonel, in full hunting cry, was a formidable adversary.

He brushed aside Baldwin’s legalistic self-defense (“My criticism of you as a reactionary was based, not upon what you may have said as a law writer, but upon what you did as a judge”) and said that Section Five of the Federal Employers’ Liability Act voided any contract that enabled a common carrier to exempt itself from liability for accidents due to negligence. In indemnifying
the New Haven Railroad against any claim from employees mutilated on the job, Baldwin had flouted that structure and in effect decided that “the right to get killed” was a property right sanctioned by the Constitution. “Congress aimed at giving the railroad employee a substance. You construed the act as giving him a shadow by solemnly declaring that to give him substance is to take away his property in the shadow.”

Shadows over substance, words rather than deeds, precedents hampering change, technical injustice precluding practical justice: Roosevelt had been attacking statutory pedantry since his days as a law student at Columbia University.
Even in 1881, he had stood out among his classmates, arguing “for justice against legalism,” and complaining about the “sharp practice” of corporate lawyers. As President, he insisted that courts, no less than churches, were places where plain morals had to be expounded. Judges should no more sanction an abusive policy, in the name of the Fourteenth Amendment, than priests should cite the Old Testament in favor of child sacrifice. He had gone so far as to suggest, in his eighth annual message to Congress, that the judicial branch of government was actually a branchlet of the legislative. Now out of office, he was as righteously didactic as ever:

Roosevelt followed up on 4 November with a near-libelous attack on Baldwin in Des Moines. The judge was too busy with his own gubernatorial race to respond. “
I shall waste no more words on him,” he announced, “but intend, when I have leisure … to bring a suit.”

RETURNING TO NEW YORK
, Roosevelt found that Stimson was boring audiences into somnolence. “
Darn it, Henry, a campaign speech is a poster, not an etching.” His own last speeches, delivered in Manhattan on election eve, were little more than weary croaks.

By the following evening, 8 November, it was clear that the GOP had suffered one of the worst defeats in its history. It had lost control of the House for the first time since 1894, and of the Senate too, unless a small swing group of progressives could be counted as faithful Party members. Even they were chagrined by the defection of many Eastern progressive voters to the Democrats.
Beveridge crashed. Ninety-eight Republican congressmen lost their seats. More than half the states chose Democratic governors. As Maine went, so went Massachusetts, Connecticut, New York, New Jersey, Maryland, Ohio, Indiana, Kentucky, Missouri, and Oregon.
The first Socialist representative in American history was elected in Milwaukee, Wisconsin.

For the Republican National Committee, the results were particularly upsetting. Despite all the money Aldrich, Crane, and others had raised to suppress insurgent candidates, conservatives prevailed in only three out of nine reform-minded states. Nick Longworth barely survived the anti-Taft turnaround in Ohio. Nationwide as at home, the voting pattern amounted to a rejection of everything Taft had stood for so far. He was shocked into a rare burst of metaphorical excess. “I should say, it was not only a landslide, but a tidal wave and a holocaust all rolled into one general cataclysm.”

The President was still, however, head of the Party, with immense reserves of patronage to help him rebuild his devastated landscape.
Roosevelt, in contrast, was swept into political exile with a force that had analysts doubting he would ever again figure in national affairs. He had been humiliated in his own state, where Stimson lost to Dix by a plurality of 67,410 votes. Democrats won other key offices and both houses of the legislature. Young Franklin D. Roosevelt of Hyde Park became a Democratic state senator. Only fourteen Republicans were elected to New York’s thirty-seven-man Congressional delegation. Even Oyster Bay sent a Democrat to the House of Representatives.

Elsewhere, the results looked even worse for Roosevelt. Every candidate he had campaigned for had been defeated, while all those he opposed had won. Perhaps his worst humiliation was in Connecticut, where Judge Baldwin had been triumphantly elected governor.
Less than five months after being welcomed home by a million New Yorkers, the Colonel was seen as human, vain, and fallible.

HE SECLUDED HIMSELF
from reporters at Sagamore Hill, pleading that he needed a rest. This was true: since coming down the Nile he had been almost continually onstage. He was exhausted, sick of posturing and orating. “
I am glad to think that I have Father safely caged at Sagamore,” Edith wrote Kermit.

Only one journalist was permitted to visit, on Sunday, 13 November. Mark Sullivan, the editor of
Collier’s Weekly
, was a good friend, and could be relied on to respect Roosevelt’s desire for privacy. More sympathetically than most, Sullivan understood the complex feelings of duty and desire that had reinvolved Roosevelt in politics. He had been at Harvard, observing, on that fateful day when Governor Hughes asked the returning hunter for help.

The big brick house was quiet, with double windows blocking more sound
than cold, and all its children’s rooms empty, except the one Ethel still occupied, keeping her parents company.

“Don’t go,” Roosevelt said, when Sullivan made a move to return to Oyster Bay station. “The time will come when only a few friends like you will come out to see me here.”

“H
E WAS EXHAUSTED, SICK OF POSTURING AND ORATING
.”
Roosevelt reading on the North River ferry, New York, fall 1910
.
(photo credit i5.2)

Sullivan stayed on for some time, then again tried to leave. Roosevelt clung to him.