An Amendment

Not so much what he said, but the cool clarity with which he said it, made Assistant Attorney General Robert H. Jackson far and away the most effective advocate of the President's Plan to appear before the Senate Judiciary Committee. Last week that same quality of dispassionate logic, so notably lacking in the Supreme Court debate, appeared for the Opposition when Dean Young Berryman Smith of Columbia Law School eased into the Senate Committee's witness chair.

Senator Burton K. Wheeler, first opposition witness, had made his sensation with Chief Justice Hughes's letter refuting the argument that the Court is overburdened (TIME, March 29)--a point on which the President's warmest supporters heartily wish that he had rejected his Attorney General's advice. Come to flay his old chief's plan, onetime No. 1 Brain Truster Raymond Moley next day cried, "The institutions of democracy grow and strengthen only through their use. Let us make democracy work by working through the instruments of democracy. ... I would rather amend and amend and amend than pack and pack and pack." There were already plenty of people who would rather amend the Constitution than accept the President's Plan--if they could only agree on an amendment, and Pundit Moley offered no solution of their problem. Neither did Princeton's President Dodds, whose best thought was to turn the whole problem over to an independent commission. Hence after three days of opposition testimony, the President's opponents found themselves still in the plight of Judiciary Committeeman Logan of Kentucky, who moaned: "I don't like this plan at all. But I can see no alternative, I cannot find a better one."

Dean Smith, a mild-mannered, middle-aged Georgian described by one of his former students as a man of "large, luminous and enlightened mind," contributed nothing startlingly original to the Court debate. The substance of his plan had already been put forward by, among others, Nebraska's Edward R. Burke, one of the leaders of the Senate opposition. Difference was that the tactful, soft-spoken Dean made his ideas seem simple, plausible, attractive.

First off he disarmed Administration Senators by announcing himself a lifelong Democrat who had voted enthusiastically for Franklin Roosevelt both for Governor and President, and who heartily believed that the present Court situation was "manifestly unsatisfactory and calls for corrective action." He agreed that the Federal Government needed more power. But, he pointed out, if six new Roosevelt justices should agree with the interpretation of the Constitution's "general welfare" clause which the President put upon it in his last fireside chat, there would be virtually no limit to the Government's powers. "Furthermore," drawled the Dean, "I am not so much concerned about the President's purpose as I am about this possibility of changing our whole Federal system without letting the people have anything to say about it. It is their right to have a say."

Therefore, Dean Smith proposed, let the President have a chance to have his way, but by national referendum, not legislative fiat. The President wanted to rejuvenate the present Court, provide for a constant infusion of new blood into it. Then let an amendment be offered providing for compulsory retirement of justices at, say, 75. If anyone objected that the Court would still be packed on retirement of five justices at once.* let present justices be retired gradually, according to seniority. President Roosevelt argued that an amendment could easily be blocked by reactionaries in only 13 States. Scored Dean Smith: "If, as has been claimed, the election returns last November were a mandate to bring about these reforms, there should be no difficulty in obtaining an amendment expressly authorizing them."

As for the President's claim that an amendment would take too long, asked the Dean, what about calling State conventions such as ratified the 21st (Repeal) Amendment in less than ten months? Better yet, he demanded, why could Congress not set a national date for elections to the conventions, a national date for the conventions themselves, thus get the whole business over with in less time than it would probably take to get .the President's bill through Congress?

Why not, indeed? asked the President's vastly heartened Opposition. Senator Burke promptly proclaimed that he would redraft his amendment to include Dean Smith's staggered retirement system and uniform State conventions. Texas' Tom Connally, another Presidential Plan antagonist, planned one without the stagger. Most significant converts were two Judiciary Committeemen, Kentucky's Logan and New Mexico's Hatch, who had been leaning reluctantly toward the President's Plan. Senator Hatch, who postponed private engagements in order to hear Dean Smith out, announced after the hearing that he was ready to go whole hog for the Smith plan. Senator Logan surrendered before the hearing ended. Raising a last objection that rich and powerful conservatives might defeat the Smith amendment, he grinned with relief when the Dean declared: "Those same people could only carry two States in the last election, Senator. We beat them then, and I think we can beat them easily now."

Acclaiming his program the most practicable and persuasive alternative to the President's Plan yet suggested, Dean Smith's admirers realistically admitted that it would have no chance of getting through Congress unless Franklin Roosevelt accepted it. And last week the stanchest foes of the President's Plan were Privately conceding that, if he chose to whip it through, the necessary votes were already in his pocket.

But the battle of words was far from finished.

Oldster's Curse. Up from a sickbed this week rose the No. 1 Democratic Elder Statesman to pronounce the direst curse yet visited on the Democratic President. Five years of rage and scorn at New Deal strayings from the path of Jeffersonian Democracy boiled over as, over a nation-wide radio network, 79-year-old Senator Carter Glass of Virginia hurled at the plan for a full hour such epithets as "frightful . . . hateful . . . repugnant . . . iniquitous . . . utterly destitute of moral sensibility." The proposed six new justices he called "judicial sycophants . . . subalterns . . . wret-nurses . . . marionettes to speak the ventriloquisms of the White House."

Summoning the shades of his political heroes to justify his anger, Senator Glass scored most effectively with Woodrow Wilson's words: "It is within the un doubted Constitutional power of Congress to overwhelm the opposition of the Supreme Court on any question by increasing the number of justices. . . . But we do not think such a violation of the spirit of the Constitution is possible, simply because we share and contribute to that public opinion which makes such outrages upon Constitutional morality impossible by standing ready to curse to them."

"'Standing ready to curse them!''' echoed Woodrow Wilson's onetime Secretary of the Treasury. "That vividly de scribes the attitude of thinking men and women everywhere in America today. . . . Telegram after telegram, letter after letter, sent me by the thousands, have said 'God bless the Supreme Court.' But who wants God to bless a packed Supreme Court . . . reorganized ... to expound the Constitution in subservient obedience to the whims or obsessions or misguided judgment of a President of the United States? . . . Our God still being in the heavens, it is my belief He would regard as unhallowed any that." invocation of His blessing on a Court like that."

*Justice Sutherland last week became the fourth justice to reach 75. Chief Justice Hughes will be 75 next week.

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