Master of the Senate (16 page)

About the 1804 election Henry Adams had commented that “the sunshine of popularity and power” had “turned the head of a President.” After the 1936 election, perceptive observers had the same concern. Watching FDR’s triumphant return to Washington after the election, “the smiling President in his open car,” the cheering mobs who “turned out in tens of thousands to receive
him as a conquering hero,” Joseph Alsop and Turner Catledge were reminded of a Roman triumph and wondered “whether the President possessed an inner censor, to take the place of the ribald slave who stood in each triumphing general’s chariot to remind him that, after all, he was no more than mortal.” Their concern would soon prove justified. After his landslide, Jefferson, in control of two branches of government, had turned his attention to the lone branch still dominated by the other party—the judiciary—moving, in the impeachment of Samuel Chase, to curb its independence. Now Roosevelt, too, moved against the judiciary’s independence. The Supreme Court had declared crucial New Deal measures unconstitutional. The President drafted a plan to enlarge the Court by appointing as many as six new justices whose philosophy agreed with his. And he made his move, as Alsop and Catledge were to write in
The 168 Days
, their colorful study of the Court-packing fight, in a way that showed that his triumph at the polls had filled him with “such an overconfidence as must come to any man after four years of glittering, uninterrupted success in great matters.”

Having had the Court plan prepared in strict secrecy, he didn’t bother to discuss it with his party’s congressional leaders, as if such discussion was no longer necessary. When he summoned them to the White House on February 5, 1937, they had not the slightest inkling of what the meeting would be about. When they arrived, headed by the white-haired, ruddy-faced Vice President Garner, a conservative Texan who, beloved and respected on Capitol Hill, not only presided over the Senate but wielded almost as much influence in it as Robinson (but who had also been kept completely in the dark), and had all been seated in the Cabinet Room, a secretary came in with mimeographed copies of the bill, already drawn up in final form, and of the President’s accompanying message, and distributed them around the table. As they began reading these documents, the President summarized their contents—cursorily. He had very little time, he explained; he was holding a press conference to announce the Court plan in a few minutes. And with that, he wheeled himself out of the room.

The congressional leaders’ first reaction was a stunned silence. Then, in the car driving them back to the Capitol, Hatton Sumners of Texas, chairman of the House Judiciary Committee, said, “Boys, here’s where I cash in my chips.” And when, in the long lobby behind the Senate Chamber, senators clustered around Garner asking his opinion of the President’s bill, the Vice President told them—in pantomime: holding his nose with one hand, with the other, he made a Roman thumbs-down gesture. But Roosevelt was unconcerned. When, a few days later, the congressional leaders returned to the White House to discuss compromise, Roosevelt made clear that compromise would not be necessary. Congress would approve the bill as he had dictated it, he said. “The people are with me.” And Roosevelt’s confidence was understandable. Who could stand before such a President, at the very zenith of his popularity and power?

But America’s Founding Fathers had created the Senate to stand against just such a President—to stand against the President and the people, to protect the minority from the tyranny of the majority. In 1805, in a battle to preserve the independence of the judiciary, it had stood firm. And now, in 1937, in another such battle, it was, all at once, standing firm again. Roosevelt wanted his bill to be taken up first in the House, “because,” as the journalist Leonard Baker explains in a study of the Court-packing fight, “all House members run for reelection every two years” and the Administration therefore “believed that FDR’s political coattails had most impact on that side of the Capitol”; the bill, having passed the House, would then arrive in the Senate with momentum behind it. But Sumners, equally aware of those considerations, refused to call the measure up in his House Judiciary Committee so that the Senate would take up the measure first. And suddenly, as Alsop and Catledge wrote, “the shabby comedy of national politics, with its all-pervading motive, self-interest, its dreary dialogue of public oratory and its depressing scenery of patronage and projects, was elevated to a grand, even a tragic plane.”

The President fought with a President’s weapons—with eloquence, matchless eloquence. In a March 4 speech at a triumphal victory dinner of his party—to thirteen hundred of the top Democratic federal jobholders at the Mayflower Hotel—he reminded them of why they held their jobs: because their party, in its New Deal, embodied the majority desires for meaningful social legislation. He reminded them of how the Supreme Court had “vetoed” New Deal legislation. And he warned them that if the party permitted the Supreme Court to thwart the people’s will, the people would turn away from the party. “Here is one-third of a nation ill-nourished, ill-clad, ill-housed—now! Here are thousands upon thousands of farmers wondering whether next year’s prices will meet their mortgage interest—now! Here are thousands upon thousands of men and women laboring for long hours in factories for inadequate pay—now! If we would keep faith with these who had faith in us, if we would make Democracy succeed, I say we must act—now!” Five days after the speech came an even more effective weapon: the chat. Out of ten million radios on March 9 came the warm, rich voice, simply asking his followers to trust him:

And he fought with a President’s private weapons—which he likewise wielded with matchless skill. As it became apparent that opposition to judiciary “reform” was more widespread than he had anticipated, presidential aides began to sound out individual senators more carefully, and there were surprises.
One senator of whose vote the White House had been certain—regardless of his views on the particular issue—was Joseph C. O’Mahoney of Wyoming. Not only had he been a loyal assistant to Postmaster General James A. Farley, Roosevelt’s political major domo, but, as the representative of a beet-sugar state, he “was also heavily obligated to the administration on sugar bills, and would need more help in the future.” Now it was reported that O’Mahoney was calling the bill “undemocratic,” and Farley contacted him—and thereafter assured Roosevelt that O’Mahoney was “on board.” The Man in the White House was a master at pulling levers attached to senators. “Kentucky’s Democratic Senator Marvel M. Logan had been recalcitrant about the Court plan,” Leonard Baker reports, but Kentucky needed flood control projects. “Senator Logan became a supporter of the plan. Kentucky got its flood control projects.” Routine judicial and patronage appointments in many states were suddenly held up because “Mr. Farley is working on them.” And the Senate was a New Deal Senate, after all. Democratic Leader Robinson counted the votes now, and assured Roosevelt of a majority.

And indeed if the vote had been taken then, not long after the proposal was made, the President would probably have had his majority.

But the vote wasn’t going to be taken then, for the Senate, thanks to the Founding Fathers, also had weapons, most crucially its rule allowing “unlimited” debate. Deliberation requires time—and the Senate was going to get time. Roosevelt and Robinson summoned the chairman of the Senate Judiciary Committee, Ashurst of Arizona, to the Oval Office. Ashurst was usually soft-spoken and complaisant, but he was, as they may have forgotten, the same Senator Ashurst who eighteen years before had demanded, “Who is this Colonel House?” Roosevelt and Robinson attempted to persuade him to place a limit—perhaps two weeks apiece—on the length of time each side would have to present witnesses before his committee, but Ashurst felt that the Court-packing proposal was “the prelude to tyranny,” and, thanks to the Founders, he had a weapon to fight “tyranny.” “I replied that I would avoid haste, would go slowly and give the opponents of his bill ample time and opportunity to explore all its implications,” he told the President. There would, he said, be no time limit at all.

The President, Ashurst was to recall, “received this statement with disrelish.” But there was nothing the President could do about it. Judiciary Committee hearings in the Senate Caucus Room went on for more than two months, and during that time there were many speeches on the Senate floor, and the passage of time did just what the Founders had intended. As Alsop and Catledge wrote:

In 1937, as in 1919, there were “the great stump-speaking tours across the country, which senators resorted to as they never had before except in the League of Nations fight.” Their speeches were reported in depth in newspapers, and heard on the radio; the airwaves were filled each night with the oratory of both sides in a remarkable public debate. And as America heard the arguments, America’s initial enthusiasm for the President’s proposal began to diminish.

And the delay, moreover, was affording not only America’s people but America’s senators “a chance to think the issue over.” Every time a Roosevelt supporter who had given a hint of wavering appeared in the cloakroom or in a Capitol corridor, a reporter wrote, “you were certain to see one or two opposition senators pleading, persuading, exhorting or shaming the worried man into independence.” More and more senators began to feel that the issue was too big for them to be influenced by customary political considerations. Summoned to the Oval Office along with a prominent liberal professor from Harvard, Wyoming’s O’Mahoney found himself the recipient of a lecture on the need for “co-operation” between the executive and the judiciary. The lecture was delivered with the full measure of presidential charm, and, Alsop and Catledge wrote, beet sugar “may not have been completely absent from O’Mahoney’s mind.” But, they wrote, the concept of the American constitutional structure held by the Senator and the professor was “rather more conventional than the President’s. As they listened to the President calmly explaining what he wanted, they could not forget the doctrine of separate powers.” Not long thereafter, O’Mahoney unexpectedly appeared at a meeting of senators opposed to the bill. He wanted to join them, he said; he would oppose the bill to the end, no matter what the political cost.

Similar evolution was taking place in the attitude of other senators, as day by day, the great issues involved were examined and re-examined. Burton K. Wheeler of Montana, long a leader in Senate fights for liberal causes, was coming to see that the Court plan implied an alteration in the whole balance of governmental power in favor of the White House. What, he wondered, would come next? He refused to fight for this cause. Wheeler was a senator other senators followed. Roosevelt sent his aide Thomas G. Corcoran to him with an offer. Its details would be a matter of dispute; at the very minimum, Wheeler would be allowed to give “advice” on the nominations of two of the six justices. Wheeler had accepted other offers from Corcoran before, but he refused to do so on the Court-packing plan. “I’m going to fight it with everything I’ve got,” he told Corcoran. The President hurriedly invited his old friend Burt to dine at the
White House that evening; the Senator replied that the President had better “save the plate for someone who persuaded more easily.” George Norris, “the great old man of liberalism,” asked himself the question, how would he have stood “if Harding had offered this bill.” And then he gave his answer: he would have opposed the bill had Harding offered it—and he would oppose it though Roosevelt offered it.

And while much of the repetition of arguments was boring and banal, some was not—particularly when, the Judiciary Committee having reported it out unfavorably by a 10–8 vote, with the formal recommendation that it not pass, debate on it began on the floor.

As Majority Leader Robinson rose at his desk, in “the high, wide chamber, so meaninglessly decorated with square yards of tan and gray and faded yellow, [so] colorlessly illuminated by its huge sky-light,” the galleries were jammed, Alsop and Catledge were to relate. “There were senators’ wives, diplomats, connoisseurs of the Washington scene, hundreds upon hundreds of sight-seers…. The overwhelming impression was that the plain people of America had come to see their government in action. In the pitlike space which the galleries enclose was the government they had come to see, scores of rather elderly, remarkably ordinary-looking men.”

As Robinson roared threats, and defended the President, opposition senators bombarded him with questions that emphasized loyalty not to a President but to a Constitution. As senators dueled with words, the rage on both sides often boiled over; on one such occasion, “Robinson and his followers and the leaders of the opposition were all on their feet, all bellowing at once. Order was gone; the fascinated galleries buzzed with excitement; and on the floor such a scene of bitterness and hatred, fury and suspicion was enacted as the Senate had not witnessed in a quarter century.”

There were moments when the debate served the purpose that the Founding Fathers had intended—as, for example, when the speaker was Senator Josiah Bailey of North Carolina. Bailey was usually ponderous, given to pounding on his desk and shouting out the points he wanted to stress. But the independence of the judiciary was sacred to him, and he had been preparing this speech for weeks—and he delivered it with pounding and shouting, but also with what Alsop and Catledge call “all the force of absolute conviction.” Listening senators rose, walked hastily to the cloakrooms and brought colleagues to the floor to hear, or sent pages to fetch others from their offices. Soon “every desk for rows around the speaker was filled—a sure sign of interest—and the chamber was perfectly still. That rare thing, a successful and convincing argument, was being made on the floor.” Leaving the Chamber, Robinson telephoned his White House liaison. “Bailey’s in there and he’s making a great speech,” he said. “He’s impressing a lot of people….” In the back, on “freshman row,” where the new Democrats were seated behind the Republicans, were three senators of whose votes Robinson had been confident. Now,
they changed their minds and went (along with a fourth freshman who had earlier decided to oppose the bill) to inform Roosevelt to his face of their decision. Thus confronting a popular President would have posed immediate political danger for a member of the House of Representatives, up for re-election in another year, but these senators were safe in their seats for another five years; Roosevelt might not even
be
President when they stood for re-election.