by Allen Drury
“Some of us in this room—” and his eyes flickered briefly over the ex-President, Bob Munson, Warren Strickland, Walter Dobius sitting crowded in between the Times and the Post in the press section—“were at the White House much earlier today. We were in the presence of a very complex man, but one, I think, at wit’s end. It is terrifying to me—and terrifyingly sad, as well—that in his desperation he should be turning away from democracy—that he should have lost faith in the processes of free government—that he should be seeking the easy way, which is the way of force and suppression—the force and the suppression that will flow inevitably from this measure if it is allowed to remain on the statute books.
“I do not know what the ultimate outcome is going to be, of the President’s experiment in turning the other cheek to the Russians. But I do know it must not be a domestic tranquility secured at the price of the liberty of his own people. That would make of both his dreams and his actions history’s most awful mockery. I care not what others here may do, but I will not be a party to it. I simply will not. And I am ready to so vote. And the quicker the better.”
(“That makes five against the Administration, as I see it,” the Times whispered to Walter, who nodded grimly. “Disqualify! Disqualify!” insisted the angry roar, just outside.)
Again there was a silence. Into it the Attorney General finally spoke with a fierce and quivering indignation, which the Chief Justice at first made some pretense of checking, then shrugged and let it flow.
“Your honors!” George Henry Wattersill cried in a tone so aggrieved it would have been laughable under any other circumstance. “What an extraordinary performance! What an extraordinary scene! A Justice of the Supreme Court of the United States attacking so viciously a President of the United States! So personally, so openly, so unbelievably, so inexcusably! For shame, indeed, Justice Montgomery, for shame indeed! But not shame upon the great Chief Justice, who is doing his best to provide a fair judgment here for the Administration of a great President, but shame upon a member of this Court, and upon all colleagues who side with him, for his unwarranted, unjustified, unconscionable, unjudicial assault upon our great President! Disqualify him indeed, your honors, for he has forfeited all right to be considered a fair and objective member of this Court!…
“Mr. Chief Justice, and your honors,” he concluded, more quietly, suddenly all grave, all statesmanlike, “we submit that Justice Davis is no longer fit to sit upon this Court in this case, or possibly in any other. Certainly he is not fit to sit in this one. He has disqualified himself by his own intemperate and unjudicial words, he has removed himself from the high company of this distinguished and noble bench. We ask you to make certain that he will not vote by formally disqualifying him, your honors. Simple fairness and justice require no less. The nation expects no less. We earnestly and respectfully request that you consider the matter of his disqualification before all else.”
“Disqualify!” urged the chant outside. “Disqualify, disqualify!”
For a moment the Chief Justice hesitated; long enough for William Abbott to rise to his feet and say, with a firmness that assumed he would receive no denial, “Mr. Chief Justice, I wish to address myself to this question, if you please.”
“Your honors,” George Wattersill began indignantly, “your honors, this is most irregular—”
“Oh, stop it!” the ex-President roared with a vehemence that startled them all. “Stop this damnable hypocritical nonsense of yours! You have just had your say about Justice Davis, and now, damn you, I am going to have mine!”
“Your honors,” the Attorney General repeated, but with an obvious uncertainty, “your honors, this is most irreg—”
“Petitioner may speak,” the Chief Justice interrupted. “And then,” he added, to a sudden heightening of the already almost unbearable tension in the room, “the Court will, if it please my brethren, decide the matter of Justice Davis’ worthiness to pass upon the pending issue.”
“Mr. Chief Justice,” William Abbott said, more calmly, “I, too, was among those present at the White House very early this morning. I agree with the analysis of Justice Davis. This President is drifting. He thinks he has a plan, but it is a plan of desperation. He is clutching at straws. Meanwhile this monstrous bill has been passed by the Congress, in an equal mood of desperation, in his name. He has signed it. He really thinks, I believe—although no one really knows what he thinks—that it will assist him in some way to meet the situation in which he finds himself. It will not. It will only destroy the liberties of all Americans, using the pretext that he must have ‘domestic tranquility.’ For what, your honors? So that he may pursue the course of surrendering to the Russians all hope of saving the independence of this country and the liberties of her citizens? He will give us domestic tranquility, all right—the tranquility of the grave.
“Yes!” he repeated angrily, as George Wattersill, Fred Van Ackerman and Bronson Bernard stirred restlessly in their seats. “The tranquility of the grave!… Mr. Chief Justice, spokesmen for the Administration, like all who argue from weak law, offer strong dramatics. They wish you to disqualify Justice Davis for expressing his opinions. Exactly so, your honor. Exactly so. That is becoming the new crime in America—expressing opinions. Particularly if they are opposed to the Administration. That is what will be written into law here if you uphold this dictatorship act. That is what will be established if you disqualify Justice Davis. Make no mistake about it: this nation stands on the edge of the abyss. Don’t let this honorable Court push it over.”
“Is not your argument really based,” the Chief Justice suggested in an unimpressed tone, “upon the fear that if Justice Davis is disqualified this act will be upheld?”
“And is not the argument of the Administration based,” the ex-President snapped, “upon the fear that if he is not disqualified this act will be thrown out by this Court?”
“I am not asking you about their argument,” the Chief Justice said bluntly. “You are not responsible for their argument. I am asking you about your own.… Of course”—his tone became thoughtful, almost dreamy—“perhaps it need not come to a showdown at all. There are many precedents. Justices have disqualified themselves heretofore, when they felt themselves to be, and have acknowledged themselves before the world to be, personally prejudiced on one side or the other of an issue. Perhaps an honorable man might even disqualify himself from voting on his own disqualification. That might show a real integrity.”
“Oh, no, Mr. Chief Justice,” Tommy said quickly, in a voice so sharp that Bill Abbott, with a grim little smile, sat slowly down and left him to his own defenses, which appeared to be good. “Oh, no, you don’t! Precedents there may be for justices to disqualify themselves, and precedents there are for justices not to disqualify themselves. There is no precedent at all, I might point out, for the Court itself to arbitrarily disqualify a justice.
“I will not disqualify myself from voting on the question of my own disqualification,” he said flatly, “for the simple reason that I believe we are finally right up against it, in this country. I think it is finally coming to us, the terror, the disaster, the betrayal, the end—unless some of us somewhere hold the line.
“It is not being held in the White House.
“It is not being held in Congress.
“This is the last place.…
“Now, just suppose,” he said—and he looked from one side of the bench to the other, at briskly efficient Madam Justice Watson; at easygoing but tenacious Justice Cappola; at Justice Montgomery, lean and sharp-tongued; at the Chief Justice, outward stateliness not always successfully concealing the rigid partisan inside; Justice Grant, tall and dignified, unyieldingly conservative in all his approaches; Justices Osborne and Stevenson, equally unyielding on the other side; Justice Mulvaney, usually a swing man, not a man of great personal courage or principle, one whom mobs could conceivably impress and intimidate—“just suppose, my brethren, that I did disqualify myself on the question of my ow
n disqualification. And then suppose—not that I am predicting, for I have no knowledge how you would vote on the matter—(“Not much,” Newsweek remarked dryly to Time)—that your vote should be 4 to 4. A tie vote preserves the status quo, does it not? I should not be disqualified. I should remain right here. And if there were indeed four who think as I do, I should then join them, and 5 to 4 we would uphold petitioners, dismiss the Administration’s argument, and declare the ‘Help America Act’ unconstitutional and void, as I believe it is.”
“And by the same token,” the Chief Justice pointed out calmly, “if by one means or another you were disqualified, the same principle would apply. We would vote 4 to 4 on petitioners’ appeal—a tie vote would uphold the status quo—and the Help America Act would be declared constitutional and in full force and effect, which happens to be my way of looking at it.”
“But I am not going to disqualify myself, and I am not going to allow myself to be disqualified,” Mr. Justice Davis replied cheerfully. “So we seem to have reached an impasse, have we not? Therefore, Mr. Chief Justice, I think we should entertain a motion on whether or not I am to be disqualified, don’t you?”
“I move that Justice Davis be qualified to vote on the pending matter,” Mr. Justice Montgomery said promptly.
“I offer an amendment to that motion that Justice Davis be disqualified,” said Justice Osborne with a stern and equal promptitude.
“Oh, for God’s sake,” Justice Cappola snapped, his usual equanimity suddenly worn thin. “Does it matter whether the issue is stated negatively or positively? Will Mr. Justice Osborne stop playing games and let us get on with it?”
(“Hot damn!” the Post murmured gleefully to Walter Dobius. “Now we’ve got a real dog fight!” “Stop talking like a child,” Walter told him harshly. “This is too serious for that.”)
And presently Justice Osborne seemed to agree; for after glaring at Justice Cappola, who glared back, he finally shrugged and said, “Very well, Mr. Chief Justice. I withdraw my amendment. Let it stand on Justice Montgomery’s motion.”
“Mr. Chief Justice,” Justice Mulvaney said in his characteristic worried and uncertain manner, “I don’t think there are any precedents for the kind of spectacle this Court is making of itself this afternoon. I really don’t.”
“Basically,” Tommy Davis said, before the C.J. could reply, “this isn’t a time for precedents anyway. There are no precedents for what is happening to America right now. This is a time for getting to the guts of things. So, Mr. Chief Justice, may we have a vote?”
“Mr. Chief Justice,” Justice Stevenson said angrily, “at least let us not make a spectacle of ourselves in public! At least we can go into chambers on this! This is most irregular, this sort of public sideshow the Court is putting on today! I object, Mr. Chief Justice! I most emphatically object!”
“I think we’d better do it in the open,” Justice Cappola said calmly. “It’s gone much too far now to hide ourselves behind a fig leaf. How about Justice Montgomery’s motion, Mr. Chief Justice?” he inquired with a sudden sharpness. “Let’s have it.”
The Chief Justice gave him an openly hostile look; but after a moment, having really no choice, conceded.
“Very well,” he said shortly. “With a proper seconding.”
“I will second,” Justice Cappola said promptly.
The Chief Justice paused for a moment, took a deep breath, mouth pursed, eyes grim; looked to the colleagues at his right hand, looked to the colleagues at his left hand, shrugged and began his poll, starting with the most junior.
“The question is, shall Justice Davis be qualified to vote on the pending issue. Mr. Justice Mulvaney.”
“No,” said Justice Mulvaney with a stern satisfaction.
“Madam Justice Watson.”
“Aye,” she said crisply, looking more than ever like a spare and determined schoolmarm.
“Mr. Justice Stevenson.”
“No!” said Justice Stevenson with an angry emphasis.
“Mr. Justice Cappola.”
“Aye,” said Justice Cappola.
“Mr. Justice Osborne.”
“No!” said Justice Osborne as sternly as Justice Stevenson.
“Mr. Justice Montgomery.”
“Aye, of course,” said Justice Montgomery.
“Mr. Justice Grant.”
“Aye,” said Justice Grant with a stern satisfaction.
“Mr. Justice Davis,” the Chief Justice said, glancing with a dislike he could not conceal at the small, determined figure on his left.
“Aye,” said Tommy with a blandly cheerful smile.
“And I vote No,” the Chief Justice said in an exasperated tone, “and the vote is five Aye, four No, and the challenge to Mr. Justice Davis’ qualification is dismissed.”
(“Tommy called it,” the Star-News murmured. “He knew he had the votes, all the time,” the Boston Globe agreed.)
“And now, Mr. Chief Justice,” Tommy said with a sudden severity, while the packed chamber buzzed and murmured, and outside the multitudes, unknowing, still shouted “Disqualify! Disqualify!” from time to time, “I would suggest we speedily get on with it, take a recess, retire to chambers, vote on the pending matter and report back not later than—let’s see, it’s now almost two o’clock—not later than 4 p.m. In fact, I so move.”
“Mr. Chief Justice!” Fred Van Ackerman shouted, shooting out of his chair as though propelled by the strength of his own carefully orchestrated indignation. “The Administration must protest this absolutely inexcusable attempt to railroad this matter through the Court!”
“I thought you wanted to railroad it,” Justice Cappola snapped. “You’re the one who’s been in such an all-fired hurry to put pressure on us and get a vote here today. What’s the matter now?”
“Mr. Justice,” Senator Van Ackerman said, a little more calmly but still giving the impression of a boiler about to explode any second, “it seems to the Administration that this is a most unwarranted and, yes, unjudicial attempt on the part of Justice Davis to foreclose all reasonable argument on this matter. Why, Mr. Chief Justice! We have only been discussing this, as he says, for about two hours. Certainly we want speed, I’ll admit to Justice Cappola, certainly we want a quick decision so that this great President can proceed, unhampered and unhindered by phony, inexcusable protest, in pursuit of his great goals of peace. But not at the cost of virtually no discussion, Mr. Chief Justice and your honors! Not at the cost of a half-made argument which would allow petitioners to win their points virtually nolo contendere! Why, your honors!” he cried, and it was with a fine, noble fury, “how unfair can you be? How ruthless, undemocratic, unjust, inhumane can you be? There must be a limit, your honors! There must be a limit!”
“You don’t think the Help America Act goes beyond those limits?” Madam Justice Watson inquired sharply, and for a moment Senator Van Ackerman looked quite taken aback. But not for long.
“There, Mr. Chief Justice and your honors!” he cried. “There! That’s an example of the sort of hostile, prejudiced, closed-minded approach of some members of this Court! That’s why we need more time, your honors! That’s why you shouldn’t rush this! That’s why there must be solemn and patient deliberation on this issue, not the steamroller approach of Justice Davis and some of his colleagues here! That kind of attitude, if it takes root in this Court, which is literally the court of last appeal, would indeed be fatal to democracy, your honors! There must be at least a few hours of deliberation away from the stresses and strains and pressures of this proceeding here! There must be!”
He ceased as abruptly as he had begun, and from outside came again the insistent roar: “DISQUALIFY! DISQUALIFY!”
“Why don’t you go out there and tell your—your minions,” Justice Grant suggested with an indignant distaste, “to go away and leave us alone? That would be your contribution to a few hours of deliberation away from stresses, strains and pressures!”
“That’s a good idea,” Justice Ca
ppola agreed. “Anyway, tell them to get a different chant. Tell them Justice Davis isn’t disqualified and isn’t going to be. At least bring your bullyboys up to date, Senator. They aren’t helping the Administration now.”
“I must demand,” the Chief Justice said with a sudden vigorous anger, “that justices maintain at least a minimal dignity and decency in this courtroom! I don’t think we need unprincipled, inflammatory statements to help us with our deliberations here!”
“How can you be so unfair?” Justice Montgomery demanded harshly. “You let him—” and he gestured with an open contempt at Fred Van Ackerman, still in insistent and demanding stance at the bar, “say any inflammatory thing he pleases, yet when one of us that you don’t agree with tries to say something perfectly honest, you—”
“The Justice will be in order!” the Chief Justice cried, rapping the gavel angrily. “The Court will be in order altogether!… Now,” he said, breathing heavily, when the room had become deathly still following his outburst, “I think we must consider calmly and sensibly what to do.”
“It’s about time,” Madam Justice Watson said, and for a moment it seemed he would lose control and turn on her with some harsh and personal retort. But there were high stakes involved, and after a moment, obviously working at it, he spoke in a tone as flat and reasonable as he could make it.
“It probably would seem in order,” he said carefully, “as Justice Davis suggests”—at his side Tommy made him an elaborately ironic little bow, but though he flushed angrily, he ignored it—“that we now go into recess and have further private discussions of this issue. I think this Court, like all in this room, and indeed all in the country, is perfectly well aware of the major arguments on both sides. I doubt if further presentation is necessary. If that is agreeable to both sides?”
“Perfectly agreeable to us, your honor,” William Abbott said.
“The Administration has no objection,” George Wattersill agreed, and was rewarded with a sour scowl from Fred.
