FDR - Jean Edward Smith [241]
On the other hand, Roosevelt stalwarts such as Joseph Guffey of Pennsylvania, Alabama’s Hugo Black, James Byrnes of South Carolina, and Key Pittman of Nevada rallied round the bill. As usual, the center of gravity lay with Senate veterans, who were torn between their respect for constitutional tradition and their loyalty to FDR. What was most surprising was the defection of the Senate’s progressives from the president’s cause. “I am not in favor of any plan to enlarge the Supreme Court,” declared George Norris hours after the bill was introduced.99 “The issue seems to be plain,” said California’s Hiram Johnson. “Shall the Congress make the Supreme Court subservient to the Presidency?”100 Burton K. Wheeler of Montana, the first member of the Senate to endorse FDR in 1932, was scathing. “The court plan is not liberal,” said Wheeler. “A liberal cause was never won by stacking a deck of cards, by stuffing a ballot box, or by packing a court.”101
Wheeler emerged as the consensus choice to lead the opposition. William E. Borah of Idaho, the ranking member on the Judiciary Committee, called the shots for the Republicans. Keep your heads down, he advised his colleagues. Don’t make this a partisan issue. Let Wheeler take charge. That suited conservative Democrats as well—men like Millard Tydings of Maryland, Guy Gillette from Iowa, South Carolina’s “Cotton Ed” Smith, and Walter George of Georgia. Far better to have a certified liberal like Wheeler take on the White House than someone whose New Deal credentials might be suspect.
The Senate leadership afforded Wheeler plenty of leeway. Ashurst delayed hearings until March, and by then the nation’s bar associations had weighed in against the plan. Senators were deluged with mail from their constituents, which ran 9 to 1 against, while the press, almost without exception, condemned the president. “Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve,” said The New York Times. “Surely Mr. Roosevelt’s mandate was to function as the President, not as Der Fuehrer,” wrote the gentle William Allen White of The Emporia Gazette. Walter Lippmann was “sick at heart”; Mark Sullivan said, “We are going down the road to fascism”; David Lawrence asserted that if the Supreme Court went, “all other institutions will begin to crumble one by one.”102
Roosevelt went all out. Senators were invited to the White House singly and in groups for the full presidential treatment. FDR held three news conferences on the Court, delivered two major speeches, and spoke to the nation in a fireside chat.103 “Hold up judicial appointments in states where the delegation is not going along,” he told Farley. “And all other appointments as well. I’ll keep in close contact with the leaders.”104
Hearings commenced March 10, and the administration held forth for ten days. Few minds were changed, and if anything the critics on the committee had the better of it. Wheeler was slated to lead off for the opposition on Monday, March 21. On Saturday afternoon Justice Brandeis asked Wheeler to stop by his apartment. The Brandeises and Wheelers were old friends, and Mrs. Brandeis and Mrs. Wheeler were especially close.
“The chief justice would like to see you,” said Brandeis. “He will give you a letter. Call him up.”
“I can’t call him,” said Wheeler, who had vigorously opposed Hughes’s appointment as chief justice in 1930. “I don’t know him.”
“But he knows you,” Brandeis replied.
The elderly justice took Wheeler by the hand, led him to the telephone, and made the call himself. Hughes, he said, would like to see him immediately.
It was 5:30 when Wheeler called on Hughes at his home at 2223 R Street. “The imposing Chief Justice greeted me warmly,” Wheeler recalled. “I told him Brandeis said he would give me a letter.”
“Did Brandeis tell you that?”
“Yes.”
“When do you want it?”
“Monday morning,” said Wheeler. He wanted it when he testified.
Hughes had already marshaled his arguments and had his facts at hand. Sunday afternoon, the chief