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By Root 1621 0

for FDR at the 1932 convention. Originally scheduled to become governor-general of the Philippines, he was tapped as attorney general to fill the vacancy caused by the sudden death of Senator Thomas Walsh two days before the 1933 inauguration. At the time it was assumed the appointment was temporary and that the president would make a high-profile legal appointment, yet he never did. As attorney general, Cummings concentrated on the law enforcement role of the Department of Justice and did an excellent job supervising the reform of federal crime legislation. But constitutional law was not his bent.79 Much the same could be said for Stanley Reed, a small-town Kentucky lawyer whose interest in tobacco legislation had brought him to Washington during the Hoover administration. Roosevelt had originally offered the solicitor general post to Felix Frankfurter. When Frankfurter declined, he apparently lost interest in the position. Reed was an effective administrator but like Cummings had little experience in constitutional litigation.80

Cummings met often with FDR. The president rejected the idea of a constitutional amendment to expand the commerce clause. That was the recommendation of the Democratic platform,81 and it had been employed three times in the past to reverse Supreme Court decisions.* Roosevelt believed the amendment process too cumbersome. Even if he could get the necessary two-thirds majorities in each House, it would still require ratification by three quarters of the states. Thirteen could block adoption. “Give me ten million dollars and I can prevent any amendment to the Constitution from being ratified by the necessary number of states,” said FDR.82

Roosevelt also rejected the straight-on approach of increasing the Court’s membership. The size of the Supreme Court is not constitutionally ordained but is set by Congress, and there was abundant precedent to support changing the number of justices. In addition to the “Legal Tender” appointments under Grant, Congress had altered the size of the Court six times, often for blatantly political purposes.† Roosevelt also dismissed Senator Henry Ashurst’s suggestion that he wait the Court out.83 “Justice [James C.] McReynolds will still be on the bench when he is a hundred and five years old,” said FDR.84 A fourth approach would have been to restrict the appellate jurisdiction of the Court, as a radical Republican Congress had done after the Civil War, when it feared the Reconstruction Acts might be overturned.85 That too had been ruled out, primarily because of objections raised by lawyers on Cummings’s staff.86

The convoluted scheme Cummings and Reed came up with purported to improve judicial efficiency and was, on its face, nonpartisan. It was also sufficiently oblique to kindle FDR’s enthusiasm—“The answer to a maiden’s prayer,” he told Cummings.87 Deep in the files of the Department of Justice, Cummings and Reed discovered a proposal made by the Wilson administration in 1913 that would allow the president, with the advice and consent of the Senate, to appoint a new judge for every one with ten years of service who reached the age of seventy and failed to retire. “This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.”88 The fact that the proposal had been made by none other than James C. McReynolds, then Wilson’s attorney general and now, at seventy-five, the president’s most intransigent judicial opponent, gave Roosevelt particular delight.89

With FDR’s blessing, Cummings and Reed put the proposal into legislative language. In its final form the Bill to Reorganize the Judicial Branch of Government provided for a maximum of fifty additional federal judges, one for each sitting jurist above the age of seventy. The Supreme Court was included. Since six of the Court’s justices were over seventy, that would give FDR six additional appointments. Sam Rosenman and Donald Richberg were called in to draft a statement for the president, and at the last minute Tom Corcoran was added to the