Rejectee No. 9; Nominee No. 91

JUDICIARY

Rejectee No. 9; Nominee No. 91

Until last week 90 men had been nominated to the U. S. Supreme Court in its 141 years, of whom 77 had been confirmed by the Senate to sit on the highest bench. Eight nominees the Senate had rejected, four it had failed to act upon by indefinite postponement. Rejection No. 9 went into history when the Senate refused (41-39) to confirm U. S. Circuit Judge John Johnston Parker of North Carolina, nominee No. 90.

Politics & policy figured in all nine rejections. John Rutledge was refused confirmation as Chief Justice by a Federalist Senate because of his denunciation of the Jay Treaty. President Buchanan saw Jeremiah Sullivan Black of South Carolina rejected in February 1861 because of the rising political passions preceding the Civil War. President Cleveland's bitter foe, New York's Senator David Bennett Hill, succeeded in slaughtering two of Cleveland's Supreme Court appointments in one month.

Causes of Judge Parker's rejection, the first in 36 years, could be ascribed to four major forces:

1) Labor was against him because he upheld a "yellow-dog" contract.

2) Negroes were against him because as a Republican candidate for Governor of North Carolina he had urged their exclusion from politics.

3) Progressive Senators were against him because to them he had too conservative a cast of mind.

4) Other Senators were against him because, during the Senate's consideration of his case, he showed himself too eager for confirmation by raining letters and telegrams upon the Chamber in his own defense.

Two less concrete factors militated against him: 1) A growing desire within the Senate to dictate judicial appointments to the President under the "advise" clause of the Constitution; 2) Consideration of the Parker appointment in open, executive session which gave Senators no chance to weasel on their votes.

Wild words preceded the vote. Arizona's Senator Ashurst charged that the Administration was trying to barter judgeships for Parker votes, named Washington's Senator Dill as the recipient of such an offer. Senator Dill explained that a private friend had said something about a judgeship but that he (Dill) considered it only a joke. California's Senator Johnson rattled off a speech against confirmation at such high speed that the galleries heard only a blur of sound. Idaho's Sena- tor Borah was in the middle of a long, involved sentence when he was cut short by the Vice President's gavel calling for the vote. Result:

41-to-39. Ten regular Republicans deserted President Hoover. The change of one vote would have produced a tie which Vice President Curtis would have broken in favor of Judge Parker.

Angry silence filled the White House. President Hoover wanted to flay the Senate publicly for its treatment of his nominee. Wise political heads dissuaded him. Within two days he had decided upon a new man for the Supreme Court vacancy and, as nominee No. 91, sent to the Senate for confirmation the name of Owen Josephus Roberts of Philadelphia.

Lawyer Roberts, with Ohio's onetime Senator Atlee Pomerene, was special Government counsel to prosecute the Oil Scandals. Appointed by President Coolidge in 1924, confirmed by the Senate by a vote of 68-to-8, he succeeded in voiding the Teapot Dome and the Elk Hills naval oil reserve leases as fraudulent, convicted Albert Bacon Fall of taking a $100,000 bribe from Edward Laurence Doheny. Important witnesses became fugitives in Europe. He failed to convict Doheny or Harry Ford Sinclair of conspiracy, though he did send Sinclair to jail for contempt of court. He was a harddriving, hard-working prosecutor who dug up new evidence in the oil scandals and integrated it to convince the public, if not District of Columbia juries, of gross wrongdoing.

Six feet tall, broad-shouldered, big-faced, genial Nominee Roberts was born in Germantown, Pa. 55 years ago. At first he did not want to be a lawyer because he did not think lawyers were honest men. Graduated by the University of Pennsylvania (1895), he went through its law school, was admitted to the Pennsylvania bar in 1898. He served briefly as an assistant district attorney, then turned to private practice, in which now he is doing a $150.000 per year business. In 1904 he married Miss Elizabeth Caldwell Rogers. They have one daughter. For 20 years after his graduation Mr. Roberts served as a professor of law at his university. He spends spare time on his 700-acre farm, Bryncoed, 30 miles outside Philadelphia in Chester County. After his experience with agile criminality in the Oil Scandals, Lawyer Roberts announced himself in favor of changes in court practice: 1) Abolition of grand juries; 2) 9-to-3 jury convictions; 3) Misdemeanor trials by a jury of six; 4) Elimination of "reasonable doubt," "presumption of innocence" and of the prohibition against a prosecutor's comment on a defendant's failure to take the witness stand.

"Of course I'll accept," declared Mr. Roberts when he heard of his nomination. "I'm simply overwhelmed by the honor. You may hardly believe it but I never received word that the President was going to name me. . . ."

Reaction to the Roberts nomination in the Senate was guarded and noncommittal until his public record was thoroughly explored. (Judge Parker was bountifully praised at first by uninformed Senators who later helped to reject him.)

Point No. 1 raised against Nominee Roberts was the notion that he opposed Prohibition. In 1923 he made a speech in New York which caused Dry Senators to grumble menacingly. Excerpt:

"I hold no brief either for or against Prohibition. But I do hold a brief for this proposition: that the height of all absurdities of government regulation and tinkering was reached when a police statute was written into the Constitution. . . . If you write police regulations into that great instrument, you have drawn it down to the level of a city ordinance."

Particularly provoked was Texas' Senator Morris Sheppard, author of the "police regulation" in question. North Carolina's Senator Simmons, disgruntled at the rejection of his state's man, remarked bitterly: "A southern Dry has been rejected; a northern man numbered among the outstanding opponents of Prohibition now takes his place."

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