Roosevelt (54 page)

Dismayed by Hughes’s counterthrust, the administration had to sit by idly while the committee heard witness after witness. For days on end their arguments against the President’s plan filled the press and radio. Roosevelt hoped that “things would move faster from now on,” as he wrote a friend, but the opposition saw the advantages of delay. To make matters worse, the administration had no one on the committee with Borah’s or Wheeler’s or Connally’s brilliance in cross-examination. Here, too, the President was paying a price for his secrecy; Senator Hugo Black, a tenacious and resourceful parliamentarian, had left the Judiciary Committee at the beginning of the year.

During the critical weeks of late March and early April popular support for the plan slowly, steadily ebbed away. The backing that Roosevelt aroused in his two speeches lacked stability and depth; it simply disintegrated as the long fight wore on. Much of the trouble lay in the deep fissures running through workers and farmers, the two great group interests that Roosevelt had counted on because of their unhappy experiences with the Court. The AFL was now locked in trench warfare with the CIO, and labor rallies organized by the administration fell apart in the face of this split,
local Democratic party quarrels, and general apathy. The farm organizations were not acting as though there had ever been an AAA decision. Leaders of the powerful Farm Bureau Federation were silent; the Grange was against the plan; and—worst of all—the Farmers Union was divided. Evidently the farm leaders were responding less to a sense of calculated self-interest than to the currents of feeling sweeping middle-class America: respect for the “vestal virgins of the court”; fear of labor turbulence; concern for law and order and property rights.

In this extremity Roosevelt turned to the Democratic party. Farley industriously toured the party circuit, trying to build grass fires behind lagging Democratic congressmen and vaguely threatening punishment to deserters. All in vain—on this issue the party lacked vigor and militance. Moreover, prominent Democratic leaders outside the Senate were decamping on the court issue. In the cabinet itself Hull was quietly hostile. In Roosevelt’s own state his old comrade in arms Governor Lehman came out against the bill, and even Boss Flynn of the Bronx, the most stolid of party war horses, was opposed.

At the beginning of April the President was still optimistic. Corcoran, Pittman, La Follette, and others had been reporting enthusiastically on the chances of victory. When Senator Black warned him of the opposition’s determination and tactics of delay, Roosevelt replied: “We’ll smoke ‘em out. If delay helps them, we must press for an early vote.”

Roosevelt was wrong. By April the chances for the court plan were almost nil. The President simply could not command the needed votes in either Senate or House. Then on April 12 came a clinching blow. In a tense, packed courtroom Hughes read the Supreme Court’s judgment sustaining the Wagner Act.

If Roosevelt had been as acutely sensitive to political crosscurrents during this period as he usually was, the Court’s shift would not have surprised him. A few weeks after the election, while Roosevelt and Cummings were leafing through court plans, Roberts had told the Chief Justice privately that he would vote to sustain a Washington minimum-wage law and overturn a contrary decision of a few months back. Hughes was so pleased he almost hugged him. Final decision was delayed, however, because Stone was ill for some time, and because Hughes saw the disadvantages of appearing to yield before the court-packing plan. By the end of March the time seemed ripe for the decision on this case and on three others favorable to the administration. Still, these were only straws in the
wind, and they had little effect on Roosevelt’s plans. The Wagner Act decision two weeks later, however, showed the decisive alignment of Hughes and Roberts with the three liberals.

Once again the Chief Justice had outfoxed the President. How much he changed his technical position to meet the tactical needs of the hour is a subject of some dispute among constitutional experts. Certainly Hughes’s position on the companion cases to the main case of April 12 seemed a long jump from some of his earlier judgments; on the other hand, the Chief Justice, like most politician-judges, had been flexible enough in his positions to make the jump possible. His new position was more important politically than legalistically. He had consolidated a majority of the Court behind him; he had taken the heart out of the President’s argument; he had upheld a measure dear to labor and thus reduced even further its concern over the Court—and he had done all this without undue sacrifice of the Court’s dignity.

Outwardly Roosevelt’s reaction to the Court’s move was gleeful. “I have been chortling all morning,” he told reporters. “I have been having a perfectly grand time.” He compared the
Herald Tribune’s
enthusiastic hailing of the decision with its approval two years before of the Liberty League lawyers’ opinion against the constitutionality of the Wagner Act.

“Well, I have been having more fun!” Roosevelt went on amid repeated guffaws from the reporters. “And I haven’t read the Washington Post, and I haven’t got the Chicago Tribune yet. Or the Boston Herald. Today is a very, very happy day.…” He quoted with relish a remark a friend had made to him: the No Man’s Land had been eliminated but “we are now in ‘Roberts’ Land.’ ”

Inwardly the President was more puzzled than pleased. Should he press on with the court fight? He must have sensed immediately that Hughes had given the plan’s chances a punishing blow; he had hoped for a complete veto of New Deal legislation so that the issue would be sharpened for the people. He soon learned, moreover, that Robinson and others of his lieutenants were talking compromise. “This bill’s raising hell in the Senate,” Robinson reportedly told a White House representative. “Now it’s going to be worse than ever, but if the President wants to compromise, I can get him a couple of extra justices tomorrow.” On the other hand, Robinson himself posed a problem. It had long been understood that the doughty Arkansan would receive the first vacant justiceship and thus fulfill a life ambition. But the Senator’s appointment would clearly be a recognition of service to Roosevelt rather than a recognition of legal distinction or ingrained liberalism; once on the Court, moreover, Robinson might swing right. To offset this appointment there must be others.

Roosevelt had further reasons to stand pat on his proposal. He was now in the fight to the hilt, and compromise would be interpreted as defeat for him and victory for Wheeler and the other rebels. He still hankered for six of his own appointees—liberal-minded judges with whom he could establish friendly personal relations such as he had enjoyed with the state judges when he was governor. Crucial New Deal measures were still to come before the Court, and the justices might swing right again if the pistol at their head was unloaded. Finally, the President still thought that he could win. Had he not saved many a measure during the first term, when prospects looked bleak, simply by sticking to his guns?

So the order was full speed ahead. “We must keep up—and strengthen—the fight,” the President wrote Congressman David Lewis. As if to flaunt his confidence over the outcome he made plans to fish in the Gulf of Mexico at the end of April. Roosevelt’s manner was still buoyant.

“I am delighted to have your rural rhapsody of April twelfth and to know that the French Government has spring fever,” he wrote on April 21 to Ambassador William C. Bullitt in Paris. “Spring has come to Washington also and even the Senators, who were biting each other over the Supreme Court, are saying ‘Alphonse’ and ‘Gaston’ to each other.…

“I, too, am influenced by this beautiful spring day. I haven’t a care in the world which is going some for a President who is said by the newspapers to be a remorseless dictator driving his government into hopeless bankruptcy.”

The Supreme Court turnabout marked a decisive shift in the character of the court fight. No longer was the issue one of Roosevelt New Deal versus Old Guard Court. Now the fight lay between the President and Congress. When the Court upheld the Social Security Act a few weeks later, it served to take the Court as an institution even further out of the struggle. But not its members. In May and June, Hughes made speeches that were hardly veiled assaults on the court proposal.

Roosevelt returned from his fishing in mid-May. He was in a militant mood. After talking with precinct committeemen during the train trip back, he told the cabinet, he was as certain as ever that the people were still behind the bill. Democrats in Congress who opposed it, he added, might expect defeat at the polls. Roosevelt warned Garner privately that he, the President, had brought a lot of congressmen in on his coattails, and that he might openly oppose Democrats who were against the bill. He had Robinson and other leaders in, laughed off their fears, explained away the defections they gloomily reported, and sent them back to the battle.

That battle was still going badly. Shipstead came out against the bill, as did several other senators on whom Roosevelt was relying. Party leaders were warning of a deepening split among the Democrats. Even White House assistants were losing confidence and counseling compromise. Other New Deal measures were being pulled down with the court bill. Then, on May 18, the opposition played another card. Wheeler and Borah, knowing of Van Devanter’s wish to retire, got word to the justice that a resignation timed to coincide with an expected vote by the Judiciary Committee against the court bill would help the plan’s opponents. For Wheeler knew what that vote would be. A few minutes after Roosevelt read Van Devanter’s notice of retirement on the morning of May 18 and had written in longhand a cool but polite note of acceptance, the Senate Judiciary Committee met in executive session. After brushing aside several compromise measures it voted 10-8 that the President’s bill “do not pass.” The committee line-up symbolized the split in the ranks of the Grand Coalition: six Democrats of diverse ideological hues deserted the President.

Face to face with this deepening split, Roosevelt executed one of the rapid tactical shifts that so often threw his opponents off guard. He turned to the possibility of compromise. But his freedom of maneuver here was unhappily narrowed by a conjunction of circumstances that stemmed partly from sheer bad luck and partly from the way in which he had handled matters. Van Devanter’s retirement not only knocked one more prop from under the President’s plea for new blood on the Court; it also precipitated in acute form the old problem of rewarding Robinson with a justiceship without alienating the “true” liberals and making a mockery of Roosevelt’s arguments for the bill. Within a few hours of Van Devanter’s retirement, almost as if by plan, both opposition senators and supporters of the bill were crowding around Robinson’s front-row desk in the Senate chamber, pumping his hand, calling him “Mr. Justice.” The Senate was in effect nominating Robinson to fill the vacancy.

In this extremity Roosevelt turned to the direct person-to-person persuasion for which he had such a flair. Against the advice of Corcoran and Jackson, who wanted him to let the bill go over to another session or even to accept defeat and take the issue to the country, the President decided on a shrewd but risky tactical move. Through Farley he let it be known to Robinson that the Senator could expect to take Van Devanter’s place. Then the President called Robinson in and agreed to accept a compromise on the bill, but he added that if there was a bride there must be bridesmaids. He asked Robinson to take full leadership of the fight for a compromise bill. The President was now seeking to turn the senatorial
support for Robinson’s appointment to his own advantage. If the senators wanted to help their old colleague, they would have to provide some extra appointments as well. The danger in the plan was that everything depended on Robinson.

And the President did not fully trust the majority leader. He complained to Ickes that Robinson had lost his punch, that there was no leadership in Congress. Speaker Bankhead was not strong in the House, he said, and Rayburn was so anxious to succeed to the speakership that he feared to offend anyone. The President was especially upset about Garner. Exclaiming that “my ears are buzzing and ringing,” the Vice-President had left on a long-planned vacation in Texas just as the fight in the Senate was coming to a head. But the President never expressed his feelings directly to Garner. Instead, after the Vice-President had been away several weeks Roosevelt urged his return in a letter that offered every bait that might lure the sulking Texan. Knowing of Garner’s fears about government spending and labor violence, and his old populist distrust of bankers, the President predicted a balanced budget for the coming year and declared that the public was “pretty sick of the extremists which exist both in the C.I.O. and some of the A.F. of L. unions and also of the extremists like Girdler and some of his associates backed by the Guarantee [
sic
] Trust Co., etc.” Roosevelt ended his appeal on a personal note.

“And finally, just to clinch the argument for your return, I want to tell you again how much I miss you because of you, yourself, and also because of the great help that you have given and continue to give to the working out
peacefully
of a mass of problems greater than the Nation has ever had before.” But the Vice-President stayed in Texas.

Garner’s own sit-down strike signalized the state of the Democratic party. It was not the court plan alone that was splitting apart the Grand Coalition. The attack on the plan served as a rallying cry for the conservatives who feared the rising tide of labor turbulence, for the “old” liberals who disliked the President’s indirections and his personal handling of party matters, for New Deal liberals who prized orderly processes and constitutional traditions. Seeking to placate these elements Roosevelt, when asked about the deadlock between labor and management, said calculatedly, “A plague on both your houses.” Lewis’s howl of indignation and the icy silence of the party Old Guard indicated that in striving to veer between the various factions Roosevelt was keeping the warm support of none.