Theodore Rex - Edmund Morris [77]
Anti-imperialism, Charles Francis Adams wrote Carl Schurz, was a lost cause, thanks to Theodore Roosevelt. “I think he has been very adroit. He has conciliated almost every one.”
ALMOST UNNOTICED IN the bluster of the President’s Harvard speech had been a hint that he would soon have to choose a nominee for the Supreme Court. Justice Horace Gray’s resignation letter was now on file. Roosevelt had already offered the seat to William Howard Taft, knowing that the Governor longed, above all things, for a judicial appointment. But Taft had regretfully declined, citing unfulfilled business in the Philippines.
With Justice Gray gone, the Court seemed to stand evenly divided on the status of the Philippines as “unincorporated” American territory. A similar balance of opinion seemed likely to confront the Northern Securities suit, currently grinding its way through circuit-court review. Roosevelt therefore had to be sure that whoever he chose to replace Gray shared the Administration’s colonial and antitrust philosophy.
He dreamily informed Henry Cabot Lodge, who thought that an ideal candidate was available in Massachusetts, that the next Justice should be a patrician person with enlightened instincts at home and conservative views abroad, somebody who would unite “aloofness of mind” with “broad humanity of feeling.” Not only that, this person should have a respectful sense of what the Administration wanted of him:
Now … in the ordinary and low sense which we attach to the words “partisan” and “politician,” a judge of the Supreme Court should be neither. But in the higher sense, in the proper sense, he is not in my judgment fitted for the position unless he is a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on; and keeping in mind also his relations with his fellow statesmen who in other branches of the government are striving in cooperation with him to advance the ends of government.
Having thus briskly disposed of the doctrine of an independent judiciary, Roosevelt left Lodge to send his candidate down, and went for a cruise on the Mayflower.
FOG DELAYED THE President’s return on 24 July. His press detail was marooned with him off Sea Girt, New Jersey, so a tremendously tall stranger was able to arrive at the Oyster Bay station that afternoon, unannounced and unrecognized.
Oliver Wendell Holmes, Jr., Chief Justice of the Massachusetts Supreme Court, was not well-known outside legal circles, but his distinction was obvious to anyone, even in mist. Unabashed by his height, he walked with lean, military grace. A ten-inch mustache, whitening (he was sixty-one), swept like a bow wave on either side of his haughty profile. His gaze, clear gray and cool, projected the most original intelligence in American jurisprudence. It was Holmes who, in 1881, had shockingly suggested that most statutes were obsolete by the time they got between leather covers. “The life of the law has not been logic: it has been experience.… At any given time [it] pretty nearly corresponds … with what is then understood to be convenient.”
In his world there was neither absolute good nor absolute evil—only shifting standards of positive and negative behavior, determined by the majority and subject to constant change. Morality was not defined by God; it was the code a given generation of men wanted to live by. Truth was “what I can’t help believing.” Yesterday’s absolutes must give way to “the felt necessities of the time.”
Theodore Roosevelt, too, “felt” things, if more viscerally. After returning to Oyster Bay on the twenty-fifth, he received Holmes (who had stayed over at Sagamore Hill) and saw, or thought he saw, a healthy bias against “big railroad men and other members of large corporations.” Here was a man