Deja Vu

Packed

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elections,

Franklin D. Roosevelt,

George W. Bush,

New Deal,

Supreme Court

“Report Faults Aides in Hiring at Justice Dept.,” The New York Times, July 29, 2008.

Senior aides to former Attorney General Alberto R. Gonzales broke Civil Service laws by using politics to guide their hiring decisions, picking less-qualified applicants for important nonpolitical positions, slowing the hiring process at critical times and damaging the department’s credibility, an internal report concluded on Monday….

The report released on Monday goes much further in documenting pervasive evidence of political hiring for some of the department’s most senior career positions, including immigration judges, assistant United States attorneys and even senior counterterrorism positions.

The pattern appeared most damaging in the hiring of immigration judges, as vacancies were allowed to go unfilled — and a backlog of deportation cases grew — while Mr. Gonzales’s aides looked for conservative lawyers to fill what were supposed to be apolitical jobs.

The inspector general’s investigation found that Ms. Goodling and a handful of other senior aides to Mr. Gonzales used in-person interviews and Internet searches to screen out candidates who might be too liberal and identify candidates seen as pro-Republican and supportive of President Bush.

“A Personalized View of the Court-packing Episode,” by Joseph L. Rauh Jr.,” 1990.
Arguably the biggest stain on his presidential record, FDR’s 1937 attempt to “pack” the Supreme Court with six additional justices (presumably with jurists favorable to New Deal legislation) failed spectacularly. Conservatives and liberals alike lambasted the plan, and its defeat is seen as a Constitutional triumph of the balance of powers. This reflection, written in 1990 by a clerk—first for Justice Cardozo, later for Justice Frankfurter—captures the bipartisan opposition to Roosevelt’s politicization of the High Court.

Something had to be done if the New Deal was to be saved and expanded. Talk was in the air about constitutional amendments, including expanding the Commerce Clause of the Constitution; prohibiting less than two-thirds of the Court from invalidating federal or state legislation; permitting a majority of the two houses of Congress to reenact a law invalidated by the Court without further Court review of the law; and making laws passed by two-thirds of each House unreviewable.

Roosevelt's landslide reelection in 1936 settled the matter. He would act on the Court, but the constitutional amendment route was too slow for him. Shortly after the election, he referred publicly to Congress's power to enlarge the Court and gave out hints that the time for action on the Supreme Court front was not far off. Nevertheless, Justice Cardozo seemed considerably shaken when, in early February 1937, just three months after the election, he came into the little room in his apartment where I worked to give me the news of the Court-packing plan that President Roosevelt had just submitted to Congress. He said Roosevelt wanted to add a Justice for every one who did not retire after the age of 70, up to a maximum of six. Cardozo at once spoke of his opposition to the Court-packing plan, saying rather plaintively, "No judge could do otherwise." But, at least to me, there was no sign that his devotion to Roosevelt lessened one bit.

Roosevelt's original rationale for his plan was that the Justices were behind in their docket because they were too old to do their work. This theory simply did not hold water. The Court may have been doing its work too intrusively or too harshly, but it was not behind in its docket. [Chief Justice Charles Evans] Hughes' brilliance and administrative drive saw to that. This weak rationale hurt the President's cause….

On June 14, 1937, the Senate Judiciary Committee filed a report excoriating the President and his Court-packing bill. The bitterness of the Committee report is summed up in its last sentence: "It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” As Professor Leuchtenburg has related, however, two days later F.D.R. pulled a rabbit out of his hat. He invited all 407 Democratic Senators and Congressmen to picnic with him over the weekend at Jefferson Island, where he used his geniality and charm to his advantage. The tide started to turn once again in his favor. The Administration offered a new bill that looked more like a compromise than it really was. When debate on the bill opened in July, Democratic Majority Leader Joe Robinson indicated that he had the votes for passage. Robinson's sudden death, apparently due to the unnatural heat of that summer coupled with the tension of debate, led to the bill's defeat. The Senate voted to recommit the bill to the Committee, and that was the end of the struggle.

Justice Cardozo wrote me from his summer place just afterwards: "It was a famous victory. Have you any idea what I refer to?" Small wonder the Justice was jubilant. His opposition to the bill, even though on the theory that "no judge could do otherwise," had been vindicated. More importantly, he was on the verge of becoming the leader of a new liberal majority on the Court. Sadly, after only two months with the new Court, Justice Cardozo became ill and was bedridden. In July 1938, he passed away.

For myself, I thought then and I think now, that divine providence must have played a hand in what seems to me a perfect outcome of a venture that began so dubiously. The Roosevelt Court-packing plan resulted in the change of course by Justices Hughes and Roberts, and their switch saved the New Deal. At the same time, the ultimate defeat of the plan after Joe Robinson's death prevented a dangerous precedent from threatening the stability of our constitutional legal system based on the separation of powers and the independence of the federal judiciary. Both the effect of the plan, while it was alive, and its ultimate death, are monuments to the resiliency of our democratic system. Senator Hiram Johnson's shout to the galleries, "Glory be to God," right after the Senate voted to send Roosevelt's bill back to committee was an appropriate ending for one of the most dramatic periods in the Court's history.

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