JUDICIARY: The Big Debate

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In spite of his inconsistency and in spite of his ponderous eloquence, Senator Ashurst succeeded in driving home one point which many opponents of the President's proposal ignored. Said he: "That bill is the mildest of all the bills that could have been introduced on the subject and I marvel, in the present circumstances, at the moderation of the President. . . . His proposal does not tinker with the Constitution. . . . There is nothing in the bill that in any way restricts the Supreme Court acting as it has in the past. . . ."

Liberals' Dilemma— If Franklin Roosevelt had offered his Court plan saying, "Here's your baby. Now get to work for it," he could not have more clearly summoned the liberals of the U. S. to back him up. For liberals have for two years been complaining that the Supreme Court or the Constitution had to be altered to carry out their social and economic plans, and finally the President was offering to show them how. But Senator Ashurst's demonstration of the "mildness" of the President's plan proved almost too much for liberals to stomach. He had practically proved that the President's bill would not effect any permanent judicial change. Its only long-range effects would be to increase the number of justices on the Supreme Court and set a precedent for future presidents to propose bills to pack the Court. But if Franklin Roosevelt increases the Supreme Court to 15 members, the time may come when all 15 are over 70 and archconservatives, yet so far as the present bill goes no future President would be entitled to Franklin Roosevelt's privilege of appointing new members. Thus stripped to its essentials, the bill became merely a means of attaining a temporary political end: of putting enough New Dealers on the Court to secure Franklin Roosevelt's present program from being declared unconstitutional. Most liberals wanted a lot more, not temporary political victory but permanent judicial reform to make it easier in the future for the Federal Government to take such social and economic steps as liberals may want.

Result was that liberals began scouting intensively for alternative or compromise proposals. Last week these began being offered on all sides. They fell into five chief classes:

1) To keep the Court young. A Constitutional amendment was offered by Senator Burke of Nebraska proposing to allow Supreme Court Justices to retire on full pay at 70 and require them to do so at 75. Although this was based on the President's argument that younger judges are needed, it did not appeal particularly to most liberals, because the two outstanding examples in recent years of aged justices have been the Court's famed Liberals, Justice Holmes who resigned at 90 and Justice Brandeis who at 80 is still on the bench.