Appeals to the Prejudices of the People

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Burton K. Wheeler
U. S. Senator, Montana [D]
In Senate of the United States, July 9, 1937

Publishing Information

Never before in the history of the Senate of the United States, at least during the 14 or 15 years I have been a member of it, have I seen such appeals to the prejudices of the people, to the uninformed, as have been made with reference to this piece of proposed legislation. Never before have I seen on both sides such deep feeling aroused. The reason for it, of course, is that this is a fundamental issue which everyone who has any feeling at all and who knows anything about the proposal realizes goes to the very foundation of our Government.
When the bill was first introduced the Attorney General of the United States in a radio speech used this language:
"Ladies and gentlemen, only nine short days have passed since the President sent to the Congress recommendations for the reorganization of the Federal judiciary. Yet in that brief time unfriendly voices have filled the air with lamentations and have vexed our ears with insensate clamor calculated to divert attention from the merits of his proposal."
Why was it that immediately there was aroused such feeling that protests came from the masses of the people of the country against the proposal? It was because they felt that the bill was an attempt on the part of the administration to do by indirection what it did not want to do by direction.
Again, Mr. President, after the appeal was made to the drought-stricken farmers in the "dust-bowl" that we must pack the Supreme Court and must do it now in order to afford relief to those farmers, after an appeal was made to the widows and orphans, and after an appeal was made to the flood victims along the Ohio River in order to get them stirred up in favor of the proposal and to cause them to send protests to their Senators who were opposed to it, we found another kind of appeal being made. We found an appeal being made by the Postmaster General of the United States on the ground of party loyalty, that every Democrat ought to support the bill because of party loyalty regardless, of its effect upon the Constitution of the United States and regardless of its violation of the spirit of the Constitution.
We heard Mr. Farley saying, "It is in the bag." In another place and at another time he said, "We will let the Senate talk and then we will let the House talk. Then we will call the roll. We have the votes." The press of the country after the last election pronounced Mr. Farley one of the greatest prognosticators the country had ever seen. Think of it, Mr. President, here in the United States
Postmaster General has said, "We will let the Senate talk." Certainly, our constituents ought to feel very grateful to Postmaster General for permitting the Members of the Senate of the United States, whom they have elected to office to speak their minds in the Senate.
As to the present controversy there is not the slightest difference in principle between this bill and the Court bill so far as the objectives sought to be attained by the proponents of the bills are concerned. The only difference is the one that was urged in the case of the girl who came before the judge charged with delinquency. When the judge said to her, "Mary, I shall have to send you to the house of correction, because you have had an illegitimate child," Mary spoke up and said, "Oh, but, Judge, it is only a little baby." So this is "only a little baby," and it is only a small packing of the Supreme Court; but the results that are sought to be obtained are exactly identical with the results sought to be obtained in the first instance.
The distinguished Senator from Pennsylvania [Mr. Guffey] rose in the Senate the other day and in a violent attack upon the Chief Justice of the United States said, "He is a terrible politician".
I submit that this attack upon Chief Justice Hughes is ill-becoming a Member of the Senate. He has practically charged Chief Justice Hughes with being a cheap politician. I voted against the confirmation of Mr. Hughes; but let us see who were those who voted for him. Some Democrats who are in this body at the present time voted for him.
The Senator from Arizona, Mr. Ashurst, the original proponent of this bill, voted for the confirmation of Mr. Hughes.
The Senator from Kentucky, Mr. Barkley, voted for the confirmation of Mr. Hughes.
The Senator from Mississippi, Mr. Harrison, voted for the confirmation of Mr. Hughes.
The present Secretary of the Navy, Secretary Swanson, then a Senator from Virginia, not only voted for the confirmation of Mr. Hughes but he worked incessantly in this body to secure his confirmation.
So, if Mr. Hughes was such a terribly bad man then, if he was a known politician, and a cheap politician at that, why did these distinguished leaders of the Democratic Party vote for his confirmation and urge his confirmation upon the floor of the Senate of the United States? It should be remembered that Mr. Hughes was actively engaged in politics prior to the date of his confirmation. Mr. Hughes had "economic royalists" for clients whom he had actively served just before his nomination by President Hoover. And who "packed" Mr. Hughes upon the Supreme Court?
Let us take the case of Mr. Justice Roberts. I think every Democrat and every Liberal and every Progressive and every Republican voted for his confirmation. If Mr. Justice Roberts was "packed" on the Supreme Court, then the Senate of the United States was responsible, and violated its duty and its oath of office, when it voted to confirm his nomination and to put him upon the Supreme Court.
Who led the fight in this body for the confirmation of Mr. Justice Butler?
It was not a Republican, not a reactionary, not a Tory, but one of the great liberals of his time, my late colleague, Thomas J. Walsh. He led the fight for Justice Butler. Was he seeking to pack the Court when he led that fight?
Then there is Justice Sutherland. The Senate confirmed him. When, in the opinion of the Senator from Pennsylvania, did Mr. Hughes and every other Republican in this country become such bad men? Who are these bad men with whom I am lined up, that the Senator should feel so sorry for me and sympathize with me so greatly? Let me say to the Senator for his information that I do not need his sympathy. Sometime ago a Republican lawyer was speaking to a colored audience in my home town, and he said, "I am going to see to it that the colored people of this town get justice. " An old colored lady sitting beside her husband nudged him and said, "I am not for that man." He said, "Why are you not for him? He said he was going to give us justice." She replied, "It's not justice us colored folks want; it's sympathy."
I do not want sympathy. I have never had the sympathy of many people in this country and I do not want the sympathy of Senators now; they would only be wasting it upon me. I will take care of myself.
I say now that if a spirit of intolerance is to pervade the Senate, if there is to be an attempt to try to drive this bill through, if the proponents of the bill are going to try to put pressure on us, if they are going to try to get rough with us, others can get rough just as well as they can.
I do not propose to be intimidated, and the rest of us do not propose to be intimidated, by name callers, or by anyone else, and our opponents might just as well make up their minds to that fact first as last. We are going to have a legitimate debate upon this question before the Senate, regardless of whether Mr. Farley wants us to or whether anybody else wants us to. The country is entitled to it.
Mr. President, threats have been made against Senators by Mr. Farley, who stated that the Senator from Wyoming and the Senator from Nevada probably would not get what they were seeking from the administration if they did not go along with the bill.
Speeches that were made over the radio have been censored, some of the radio stations cut off time after they had promised it to us. Thus far in the Senate debate on this bill, the proponents have not argued the provisions or the effect of the bill.
Oh, the Senator from Indiana said, "I want my President to look toward the shrine of George Washington at Mount Vernon." I want him to look there, and I want him to remember the words of George Washington, for this is what George Washington said:
"The basis of our political systems is the right of the people to make and to alter their constitutions of government."
We say that we want a constitutional amendment submitted. The Senator from Arkansas said, "You cannot deny the right of the Members of the Senate, the representatives of the people, to vote upon this pending bill." We are saying that the Constitution does not belong to the Congress of the United States, it does not belong to the President of the United States. The Constitution belongs to the people. We are asking that the people of the United States shall have an opportunity to voice their opinion and to say whether or not they want the Constitution amended. This Court bill seeks to amend the Constitution by interpretative processes.
Oh, but it is said that it will take 15 years to amend the Constitution. Nonsense! Ratification of the "lame duck" amendment came in 11 months. Ratification of the prohibition and the repealing amendment came within 14 months. Someone told me that a Senator stated that for $50,000 they could stop a constitutional amendment in his State. If they can, his State is far more corrupt than any other State of the Union of which I know.
Take 15 years? We all know that under the Constitution of the United States a proposal to amend that instrument can be submitted, and I assure the Senate that Senators on this side who are opposed to the bill will vote to submit any reasonable constitutional amendment.
It can be provided in the proposed amendment that it must be voted on within 1 year or 2 years, and it can be provided that it must be submitted, not to the legislatures, but to conventions in the various States.
We are told that there is great opposition to 5-4 decisions. Let us examine that matter for a moment. There is no longer any need for the passage of this bill because of 5-to-4 decisions. There is a vacancy on the Supreme Court. Why has not that vacancy been filled? We all know the reason, and it is not necessary for me to state it at this time.
We do not need to fear 5-to-4 decisions, because we will no longer have them. If the judge to be appointed does not disappoint the proponents of the bill, they can have 6-to-3 decisions, or they can have at least 5-to-4 decisions. The administration can be sure of such decisions on any reasonable proposition. They can be sure of 5-to-4 decisions in their favor. There is no longer any "no man's land." There is no longer any "Mr. Justice Roberts' land." Think what happened when Mr. Justice Van Devanter resigned. Proponents of the bill have been wanting resignations, but when he resigned just think of the statement that was made! "One down and five to go" was the comment made by the Secretary to the President of the United States.
There is a word in use in New England with which many are familiar which describes the sort of discussion that has been taking place on the part of the proponents of the bill, a word that describes it better than any other expression I can think of. That is the word "cheap." It was "cheap" for the Secretary to the President of the United States to say "One down and five to go," "One down and four to go." It was cheap, Mr. President, for the Postmaster General to say, "We have it in the bag." It was cheap for him to say that he would let the Senate talk.
After all, speaking of 5-to-4 decisions, do we want a Supreme Court that simply will agree entirely with our viewpoint? Is that what we want? Let me call attention to the fact that it is out of the clash of opinions that the truth comes. The worst thing that could happen to Congress, the worst thing that could happen to the country, would be to have but one strong political party. We get better legislation in this body because we have a clash of opinions as to proposed legislation. We get better bills out of committees when we have a clash of opinions. The American form of government depends upon the clash of opinions of its people, and not upon a subservient people who are voting as they are told to vote because they are getting hand-outs from the Treasury of the United States.
We are told that all the farmers of the country are for this measure. Let me say that I was out in Montana not long ago. Many farmers came to see me and said, "I am with the President. I do not know anything about this bill, but I am for it because I think the President wants it." Labor leaders came to me and said to me, "I am for the bill because I think the President wants it. I do not know anything about it." W. P. A. workers came to me and said, "I am on the public payroll, and I want the bill because the President wants it. That is the reason." I say to the members of the Senate, however, that practically every man with whom I have come in contact, from one end of the country to the other, who has given the question any serious thought or who knows anything about our problems or our constitution is opposed to this measure
Mr. President, I say there is nothing liberal about the proposal before us; there is nothing progressive about it. It has been dressed up in gaudy clothes for the purpose of attracting the fancy of some of the younger generation, who have not given it any serious thought and do not know that the liberties which have become commonplace to us were earned only by the lifeblood of our forefathers. Our liberties are so commonplace that few people give any serious consideration to them.
Why should we be zealous about this cause? When we look at world affairs we realize that in Germany there is a dictator, under whose iron heel are 70,000,000 people. How did he come into power? On what plea did he come into office? He came in under the constitution of Germany. Every step that was taken by him at first was taken in a constitutional way. Mr. Hitler acted "to meet the needs of the times."
Mussolini came into office upon the plea that he would improve economic conditions and he assumed the power of a dictator and abolished the legislative body of Italy and set up his own court, in order that he might "meet the needs of the times" in that country. In every place where a dictatorship has been set up it has been done "in order to meet the needs of the times."
Let me quote Mr. Justice Brandeis. He said:
"Experience should teach us to be most on guard to protect our liberty when purposes of government are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded persons. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding."
The Attorney General of the United States said if the Justices do not like this law, let them get off. What is the object of passing the proposed legislation? There is just one reason behind it. Its proponents may camouflage it just as much as they desire, but the Attorney General said that they want a court to meet the needs of the times. What does that mean? What are the needs of the time? Who is to judge what are the needs of the time?
I think I stated before upon this floor that the needs of the times are like the shifting sands upon the beach. What may be the needs of the times today may not be the needs of the times tomorrow. If a President comes into office with a great majority behind him, is he going to say, "I have 11,000,000 majority, I have a Congress which is subservient to me, so I am going to increase the membership of the Court, because I want men there who are going to decide in accord with the needs of the times"?
There are courts in Germany, there are courts in Italy, there are courts in Russia, and men are placed on them to meet the needs of the times as the dictators see the needs, and those judges do what the dictators want them to do. Can the Democratic Party afford to be placed in the position of saying to the people of this country, "We are going to put men on the Supreme Bench to meet the needs of the times as we see them"?
The State of Nebraska passed a law to the effect that the German language should not be taught in the schools of Nebraska. The State of Nebraska thought that was in accordance with the needs of the time.
That occurred during the Great War hysteria, when people were seeing bogeymen, and when they wanted every man who had a German name to be sent to the penitentiary because of his name. But the Supreme Court of the United States, bad as its members may be, and having great politicians among its members, as some distinguished Senators have pointed them out to be, said that law was contrary to the Constitution of the United States.
Then a case arose concerning one Angelo Herndon down in Georgia who was a Communist, and was found with Communist literature in his pocket. He was arrested under an old statute in the State of Georgia duly enacted by the legislature of that State. The Georgia Supreme Court upheld his conviction, and sentence of 18 years imprisonment for "having incited to insurrection." The Supreme Court of the United States, removed as it was from mob hysteria, freed him. Of course, the Court disagreed with his political philosophy, but notwithstanding that fact it turned him loose because it said his arrest, prosecution, and trial were contrary to the Constitution of the United States of America.
What were the needs of the times during the reconstruction era following the Civil War? Senators from the South will find that at some time a man will come here as President of the United States who will say to southern Senators and to their States that the needs of the times require action which is going seriously to affect the economic life of their States and their people. Make no mistake about it.
So, my friends, the needs of the times, I repeat, are like shifting pebbles upon the beach. The needs of the times are one thing today and something else tomorrow. When men are appointed upon the Supreme Court Bench to interpret the Constitution to meet the needs of the times, I say that a step is being taken which is reactionary. A step is being taken which, while it is within the letter of the Constitution, is against the spirit of the Constitution, and I defy anyone who knows the difference between the spirit of the law and the letter of the law to deny that statement.
I think I have once before quoted to this body a statement made by the President of the United States on the question of increasing the Supreme Court of the United States to meet the needs of the times. Why should I be accused of breaking the heart of the President, why should I be accused of being in bad company, when I agree now with the statement which the President of the United States made a few years ago? This is what he said in 1933:
"In the face of this congestion the remedy commonly proposed is to add new judges or new courts, but it will readily be seen that if the problem is what I have stated it to be, such a so-called remedy merely aggravates the complaint. There are, of course, legitimate demands for additional judicial manpower in sections where the population has grown rapidly. But it is easy to see that to apply this remedy in all cases is to add to the ravages of the disease, to contribute to the confusion, and, what is profoundly important at this time, to burden still further an already seriously embarrassed taxpayer."
Senators were told that they rode in on the coattails of the President of the United States and that they ought to support him for that reason; that they ought to support the measure because of party loyalty; that they ought to support the bill because some economic royalist disagrees with the President; that they ought to support the measure because some newspaper or some Republican says it is wrong; that they ought to be intimidated and afraid to vote their own convictions. Yes; but who first said that which we who oppose the measure are now saying? The President of the United States, in 1933. When Senators vote against this bill to increase the Supreme Court to "meet the needs of the times," to make it subservient, they are only doing what the President of the United States in 1933 said was the right thing to do. He said it before the Republicans said it. He said it before any of the newspapers he is now criticizing said it. He said it before those now opposed to him in this matter said it. Am I attacking the President of the United States because I am agreeing with what he said in 1933?
Mr. President, in closing I say that we cannot afford to set such a precedent as the enactment of the pending measure would set. We cannot afford to denounce the members of the Supreme Court and hold them up to ridicule when they are carrying on and voting their honest convictions, whether we agree with them or whether we do not.
The distinguished Senator from Indiana said the members of the Supreme Court are themselves packing the Supreme Court. Well, they were appointed for life. Can the Senator look into their innermost souls and say they are only staying on the Supreme Court in order to pack it? Can the Senator look into the soul and read the mind of Justice Brandeis and say he is staying on the Court because he wants to pack it in favor of the President, and that Justice Hughes wants to stay on the Court in order to pack it in favor of or against the President? I should like to have the Senator tell me how he knows that Justice Sutherland is staying on the Court just to vote against the President. I should like to have him tell me how he knows any one of the present Justices are remaining on the Court in order to pack the Court against the President of the United States. Let the Senator write that down in his notebook and tell me how he knows it when his time comes.
Mr. President, one by one the arguments with reference to the six-men bill were demolished until there was an overwhelming majority in the Senate against that bill, and nobody at heart was for it. Everyone knows that what I am saying is true. So, no one at heart is for the pending bill, because, as everyone knows, it merely provides a slow packing process. As a matter of fact, if I had to choose between packing the Court with six Justices and the method proposed by this bill, I would prefer to pack it with the six at once rather than to pack it in the way which is now proposed. To pack the Court is the reason for the pending bill; and, if we are going do it, let us put on the six men at once.
We were told there would be no compromise; that we would have to vote it up or vote it down; that no compromise suggestion would be listened to, and that it was "in the bag."
We are now told that the proponents of the measure have got the votes and they are going to try to jam it through. They are going to shut off debate. They have invoked an old rule that I have never before seen invoked in this body during the first 2 or 3 days of debate on a measure, a rule that is violated all the time by every member of the Senate with impunity. Yet we are told that the proponents of the measure are going to try to force us, pound us, knock the bill down our throats, if you please, in order to put it through. Well, those who are opposed to it will not be the losers if the supporters of the bill should succeed in passing it. The only man who can lose in a fight of that kind is the President of the United States himself.
As I have previously said, I give the President all credit for the great things he has accomplished during the last 4 years for the people of this nation. We have given him more power than any President of the United States has ever had in peacetime or in war. He has powers that no other President ever had. We delegated to him the power to issue currency and to fix and regulate the value thereof.
He can raise or lower the gold content of the dollar. He can issue $3,000,000,000 of currency. He can demonetize silver up to 16 to 1. He has $2,000,000,000 with which he can buy German marks, British bonds, French francs, or Japanese yen, or take any other course he may desire for the purpose of stabilizing our currency. He can raise or lower the tariff on practically everything that is produced in the United States. He can close the stock markets for a period of 30 days. We have just given him $1,500,000,000 for relief purposes, and he has wide discretionary power in its distribution. We have given him the power to say to the farmers of the country, "We will give you money for not producing crops," and $500,000,000 has been provided for that purpose. He can say to them, "Let this piece of land lie fallow and we will pay you for not planting it." We have given him the power over the economic life and destiny of the American people. He has a substantially subservient Congress. No man in the history of the United States, not even the Father of his Country, ever had reposed in him such vast and extraordinary power. We have given him the power to declare war. We have given him a power over treaties never given to any other President of the United States. He can say to one community, Denver for instance, "I will give you money for a project in your city," or he can say, "I will deny a project to your city." He has the power to say, "I will build a project in Houston, Tex., but I will deny a project to some other place in Texas."
He has a right to say to the people of the State of Illinois or the people of the city of Chicago, "I will build that parkway in your State or that subway in the city of Chicago at the behest of the political bosses of your city, or I will deny it at their behest." He has the right to say the same thing to the city of New York. I am not complaining. Conditions in the country were such that we had to give him that power and I am not complaining about the way he has used it.
But with a subservient Congress, with such tremendous power in the Executive, has not the time come in this nation when we should say there is a line beyond which no man should pass? Has not the time come when we should say, "No matter how beloved you may be, no matter how profound and wonderful you may be, no matter how much your sympathies are with the masses of the people of the United States, no matter what you want to do, the time has come when we should say there is a line beyond which, under this American Government of ours and under our Constitution, no man shall pass."