But one task remained for the President before adjournment—and a most pleasant task. Van Devanter’s seat on the Court was still open.
A pleasant task—but not an easy one. Roosevelt wanted a durable New Dealer, a relatively young man, either a Southerner or Westerner, and a competent lawyer, who at the same time would clear the Senate without difficulty. This last was the rub, for in the sweltering Washington heat the senators seemed to be more bitter and unpredictable than ever. For this reason the President leaned toward a New Deal Senator. He finally chose Black over other senatorial possibilities mainly because the Alabaman had gone down the line for Roosevelt’s policies; the President felt drawn to Black also because he faced a hard battle for re-election and perhaps because Black had an only child suffering from deafness. While Roosevelt did not rate Black’s legal talents very high, he was more concerned about seasoned liberalism than expertness. Despite some grumbling in the Senate, the usual clubby feeling prevailed, and after a brief debate Black was readily confirmed.
“So Hugo Black becomes a member of the Supreme Court of the United States while the economic royalists fume and squirm and the President rolls his tongue around in his cheek,” Ickes crowed in his diary. The President was not to roll his tongue long. A week or so later, after Black had left for a vacation in Europe, a Pittsburgh newspaper produced categorical proof that the new Justice had been a member of the Ku Klux Klan. The rumors that Black had neither confirmed nor denied during the confirmation debate were true. The press exploded with shrill attacks on both Black and the President.
“I did not know that Black belonged to the Ku Klux Klan,” Roosevelt said to a friend. “This is very serious.” The President was deeply disturbed. He told reporters that nothing could be said until Black returned from Europe. Privately he did what he could. He asked Ickes to go to Borah and see if he would help out. Wheeler and others had been demanding that the President investigate Black, and Roosevelt particularly wanted Borah’s backing for the proposition that the President had no right to make such an investigation. Borah fully agreed. By the time Black returned from Europe Roosevelt had left on a Western tour, and all eyes were on the justice.
Harried by reporters, Black turned to the radio and laid his case before perhaps fifty million people. He denounced intolerance, and pointed to his congressional record in defense of civil liberties. Then, in his soft, strained Southern voice he admitted that he had been a member of the Klan, but asserted that he had long ago disassociated himself from it. After referring again to his civil liberties record, he ended with a sad “good night.” And thus ended Roosevelt’s battle against the Court.
Roosevelt’s enemies could not help gloating. Surely the President had suffered a dizzy fall in the short span of six months. At the beginning of the year he had towered over the political scene, with his colossal vote of approval in November and with his huge majorities in Congress. Then he seemed invincible. Yet now he had been beaten.
Why had this political colossus stumbled and fallen? Roosevelt’s critics were quick with an explanation: Pride goeth before a fall. Intoxicated with success, Roosevelt had recklessly attacked a venerable American institution. Overly sure of himself, he had made mistake after careless mistake. His potency had gone to his head. Learned pundits quoted Lord Acton: “Power tends to corrupt, and absolute power corrupts absolutely.”
Was it really so simple? A closer look at the court fight showed that the real story was much more complex than this morality tale suggested.
Roosevelt did not go about the job of court reform recklessly. Quite the contrary—he struck at the Court only after a long period of waiting, and under what he considered to be the best possible conditions. His plan was not hastily conceived; he had searched through a variety of proposals to find one that would have a good chance of clearing Congress and at the same time achieve his purpose. Nor was his plan a radical one. Compared with some of the constitutional and legislative proposals of the day, it was mild indeed.
That Roosevelt’s cocksureness led to mistake after mistake and thus defeated the plan was another explanation of the time—and one that was assiduously promoted by those who, like Hopkins and Ickes, had little to do with conducting the fight for the court bill. Such a view fails to explain, among other things, why the remarkably astute Roosevelt of 1936 became the bungler of 1937. The theory that Roosevelt did not direct the fight personally and the mistakes were made by subordinates is incorrect; he was in command throughout. Much was made of Roosevelt’s stubbornness in clinging to the original plan; but this stubbornness was precisely the quality that had saved measures in previous terms—when it had been called firmness or resoluteness. Certainly Roosevelt made mistakes in the court fight, but so did his opponents.
All such explanations ignored the probability that the original court plan never had a chance of passing. This was the crucial point. For—if the plan was indeed doomed from the start—the Court’s switch and Van Devanter’s resignation and Robinson’s death became mere stages in the death of the bill rather than causes of that death.
That the court bill probably never had a chance of passing seems now quite clear. Roosevelt’s original proposal evidently never commanded a majority in the Senate. In the House it would have run up against the unyielding Sumners, and then against a conservative Rules Committee capable of blocking the bill for weeks. From the start Democratic leaders in the House were worried about the bill’s prospects in that chamber. Robinson’s compromise plan might have gone through the Senate if he had lived. More likely, though, it would have failed in the face of a dogged Senate filibuster, or later in the House.
Any kind of court reform would have had hard going. The popular reverence for the Constitution, the conception of the Supreme Court as its guardian, the ability of the judges—especially Hughes—to counterattack in their own way, the deep-seated legal tradition in a Congress composed of a large number of lawyers—all these were obstacles. Yet there was tremendous support in Congress and in the country for curbing the Court’s excesses. Undoubtedly some kind of moderate court reform could have gone through.
The fatal weakness of Roosevelt’s plan lay partly in its content and partly in the way it was proposed. The plan itself seemed an evasive, disingenuous way of meeting a clear-cut problem. It talked about judicial efficiency rather than ideology; it was aimed at immediate personalities on the Court rather than long-run problems posed by the Court. The manner of presentation—the surprise, Roosevelt’s failure to pose the issue more concretely in the election, his obvious relish in the job, his unwillingness to ask his cabinet and his congressional leaders for advice—alienated some potential supporters. More important, this method of presentation prevented Roosevelt from building a broad coalition behind the bill and ironing out multifarious tactical details before springing the attack—behind-the-scenes activities in which Roosevelt was highly adept.
That this masterly politician should make such errors even before his bill was born is explained partly by Roosevelt’s personality, partly by his view of the political circumstances at the end of 1936.
Clearly Roosevelt had come to love—perhaps he had always loved—the drama, the suspense, the theatrical touches, and his own commanding role in projects that astonished the country and riled the enemy. But it was more than this. Roosevelt had fought the campaign on a highly personal basis. And he had built a winning coalition around himself—not the Democratic party, not the Democratic platform, not the liberal ideology—but around himself. He had won a stunning victory in spite of the doubters, the rebels, and the perfectionists. The master strokes in the campaign were largely of his own devising.
Roosevelt’s handling of the court fight was the logical extension of his presidential campaign. But now he met a new set of factors, and some of the old tricks did not work. Now he was trying to push a controversial bill through Congress, not win popular votes for himself as a beloved leader. He could not maneuver as he once had; victory depended on concili
ating key congressmen and clearing labyrinthine channels. The Grand Coalition seemed to have shriveled away. With the President’s blessing, Stanley High tried to activate the Good Neighbor League—it failed to respond. The mighty legions of farm and labor, so powerful in November, seemed to melt away in the spring. Roosevelt turned to the Democratic party; it was a scattered and disorganized army. He appealed for support on the basis of a “quiet crisis,” but people saw no crisis. It was not March 1933.
The Black appointment repeated the whole problem in minor theme. Here again Roosevelt consulted only with two or three persons, and not with his congressional leaders. It was well known on Capitol Hill that the Alabaman had had Klan connections, and as Ickes said after the sensation broke, the leaders could have helped protect the President if Roosevelt had let them in on the decision beforehand. As it was, Roosevelt had to take personal responsibility for a personal appointment. Black went on to make a distinguished record as a justice, especially in the field of civil liberties—but this could not help Roosevelt at the time.
All in all, the court fight was a stunning defeat for the President. Whether or not it was a fatal or irretrievable one, however, depended on the events to follow. Two years later, with his eye on a string of pro-New Deal Court decisions, the President exulted that he had lost the battle but won the war. As matters turned out in Congress and party, it would better be said that he lost the battle, won the campaign, but lost the war.
SIXTEEN
The Roosevelt Recession
ROOSEVELT TRIED TO make the best of hiscourt-packing defeats. He pointed to the court’s new position on new deal measures. He felt that the country had been educated in the need for a broad interpretation of the Constitution. But he believed, too, that the battle was not over. “Judicial reform is coming just as sure as God made little apples,” he wrote Senator Green. “Keep at it with me!”
But underneath he was deeply stung and shaken by his defeat. Farley found him outwardly as debonair as ever, but inwardly seething at the party rebels. In cabinet meetings he sent jocular but pointed barbs in Garner’s direction, while the Vice-President kept a poker face under his shaggy white eyebrows. A few times during the last fretful weeks of the court fight Roosevelt lost his usual poise. The President roundly scolded Early for putting out a statement on the court fight that the newspapers had garbled. Roosevelt even lost his temper in front of the White House press corps; he was angry because Lindley and other reporters had interpreted a social visit of Boss Flynn’s as proof of presidential intervention in the New York mayoralty fight. This was no sudden flare-up on Roosevelt’s part; he deliberately turned a forty-minute press conference into a long beratement, again and again demanding that Lindley apologize.
Even more remarkable was Roosevelt’s treatment of General Johnson, now a fiery anti-New Deal columnist. The President had been infuriated by Washington rumors that despite his promise he never intended to put Robinson on the Court; when Johnson in his column charged Roosevelt with intended treachery, the old NRA chief was summoned to the White House. Roosevelt went over the columns, making caustic comments. To Ickes next day the President related the ensuing dialogue:
“Hugh, do you know what fine, loyal old Joe Robinson would have said to you if you had written that while he was alive?”
“No.”
“He would have said, Hugh, that you are a liar, a coward, and a cad.”
As Johnson’s face reddened, Roosevelt slowly repeated the line. Then, according to the President’s story, Johnson cried.
Significantly, all Roosevelt’s outbursts involved the press. “As you know,” he wrote Ambassador Bowers in Spain, “all the fat-cat newspapers—85% of the whole—have been utterly opposed to everything the Administration is seeking, and the best way to describe the situation is that the campaign of the spring, summer and autumn of 1936 is continuing actively throughout the year 1937. However, the voters are with us today just as they were last fall.” To detour around the reporters and their publishers, to feel again the bracing enthusiasm of the crowds, to take his program to the people before the special session, the President decided on a trip to the Northwest.
Late in September the long presidential special headed out of the Capital, rolled across the cornfields of the Midwest and through the long valleys of Wyoming, Idaho, Montana, Oregon, and Washington. It was like the election campaign all over again, as Roosevelt gave his chatty little homilies from the back platform, grasped the hands of local politicians, confabbed with governors and senators. The President told a Boise crowd that he felt like Antaeus—“I regain strength by just meeting the American people.” But as the President dedicated dams and inspected reclamation systems, friendly reporters thought of him not as Antaeus but as a modern Paul Bunyan, talking about the big jobs ahead even as he exulted in the huge construction projects under way.
The President got in a few licks at party rebels too. In Nebraska he studiously avoided inviting Senator Ed Burke, who had fought the court bill, to join his party. In Montana he heaped praise on Murray while ignoring Wheeler. In Wyoming, O’Mahoney was not invited either, but when the senator boarded the presidential train as a member of a welcoming committee, Roosevelt, undaunted, greeted him cheerily; later, however, he told a Caspar audience that the people disliked politicians who gave lip service to objectives while doing nothing to attain them. And in Boise—was it a warning to rebellious Democrats throughout the nation?—Roosevelt had only smiles for Republican Senator Borah.
The President was buoyed up by the popular response to his trip. The crowds seemed to him even bigger than a year before. He sensed that the people had not grasped the court issue, but they still wanted his objectives. And it was objectives that he stressed in speeches on the trip back as he called for an expanded farm program and wages and hours legislation. Then in Chicago on October 5 he abruptly changed the subject and created a sensation.
Hundreds of thousands lined the President’s route that day from the station to the PWA bridge he was to dedicate. He had deliberately chosen Chicago, Roosevelt told the crowd, to speak on a subject of “definite national importance.” In a few moments he was talking about the world situation—and doing so in a fashion that no President had for sixteen years. Referring indirectly to the increasing hostilities in Spain and China, he said sternly that the very foundations of civilization were threatened by the current reign of terror and international lawlessness. If conditions got worse, America could not expect mercy; the Western Hemisphere could not avoid attack.
“The peace-loving nations must make a concerted effort in opposition to those violations of treaties and those ignorings of humane instincts which today are creating a state of international anarchy and instability from which there is no escape through mere isolation or neutrality.” No nation could isolate itself from the spreading upheavals. “The peace, the freedom and the security of ninety per cent of the population of the world is being jeopardized by the remaining ten per cent who are threatening a breakdown of all international order and law.” Then came a Rooseveltian climax.
“When an epidemic of physical disease starts to spread, the community approves and joins in a quarantine of the patients in order to protect the health of the community against the spread of the disease.” He was determined, the President added quickly, to adopt every practicable measure to avoid involvement in war. His speech ended on a mixed note. “We are adopting such measures as will minimize our risk of involvement, but we cannot have complete protection in a world of disorder in which confidence and security have broken down.”
The crowd shouted its approval. Back on his train the President asked Miss Tully, “How did it go, Grace?” When she expressed enthusiasm over the reception, he nodded and said, “Well, it’s done now. It was something that needed saying.”
But what did the President mean? What kind of collective action? What kind of quarantine? Back in Washington, Hull, surprised and shocked by Roosevelt’s strong words, remained quiet. Other part
y leaders were silent. It was the opposition that spoke up. Pacifists charged the President with starting the people down the road to war. Isolationist congressmen threatened him with impeachment. The AFL resolved against involvement in foreign wars. A telegraphic poll of Congress showed a heavy majority against common action with the League in the Far East.
“It’s a terrible thing,” Roosevelt said later to Rosenman, “to look over your shoulder when you are trying to lead—and to find no one there.” He was indignant at the silence of party leaders who should have spoken up. Cut off from his troops, he had to re-establish contact. The next day, as reporters strove to interpret the speech, Roosevelt was all caution. His speech, he said, was not a repudiation of neutrality—it might even be an expansion.
“You say there isn’t any conflict between what you outline and the Neutrality Act,” Lindley said. “They seem to be on opposite poles to me and your assertion does not enlighten me.”
“Put your thinking-cap on, Ernest,” the President said.
“I have been for some years. They seem to be at opposite poles. How can you be neutral if you are going to align yourself with one group of nations?”
“What do you mean, ‘aligning’?” the President asked. “You mean a treaty?”
“Not necessarily,” Lindley said. “I meant action on the part of peace-loving nations.”
“There are a lot of methods in the world that have never been tried yet.”
Lindley was persistent. “But, at any rate, that is not an indication of neutral attitude—’quarantine the aggressors’ and ‘other nations of the world.’ ”
“I can’t give you any clue to it. You will have to invent one.…”
A few days later the President pulled in his horns further. He announced United States participation in a forthcoming conference of the parties to the Treaty of Washington over the Far Eastern situation—a clear indication, since Japan and China were signatories to the treaty, that sanctions against aggressor nations were out of the question, at least for the time.
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