Historic Side Show

"This is a very refreshing discussion of the beginnings of our Constitution. It is splendid mental stimulation. Besides, if we weren't doing this we might be doing something a damned sight worse."

Thus did courtly Senator Henry Fountain Ashurst of Arizona refer to the hearings of his Senate Judiciary Committee on the President's Supreme Court Plan. Last week the Committee rounded out its fourth week of hearings, listening to an assortment of the Plan's opponents, including Henry M. Bates, dean of the University of Michigan (who some 30 years ago taught law to both Henry Ashurst and Burton Wheeler), Columnist Dorothy Thompson, Professor Edwin Borchard of Yale Law School, John T. Flynn, financial writer, Lawyer William B. McDowell of Royal Oak, Mich., Erwin N. Griswold, professor of law at Harvard.

For practical purposes all the arguments pro & con had already been exhausted. With three or four more weeks of hearings in prospect, not the merits of the issue but the behavior of its Senatorial pro-&-antagonists became the greater influence upon its fate.

In the tomblike magnificence of the Senate's marble caucus room, the Judiciary Committee played to a full house. Although Chairman Ashurst permitted no smoking, the atmosphere was stuffy with the breath of inquisitive citizens, 300 at a time, packed in their half of the chamber, unable to see over one another's heads, but catching what they could from the cackling of the loudspeakers up among the marble pillars.

It is Senator Ashurst's notion that some Senate hearings have lacked dignity, a quality which he does his best to impart. Best sample he gave last week was when Dorothy Thompson, asked whether the President's proposal would not have been considered fantastic a year ago, responded:

"I believe there were some suspicious souls who did suggest the possibility. There were those who did call it fantastic. I believe--I believe Senator Ashurst called it fantastic."

In the roar of laughter which followed, Senator Ashurst literally rose to the occasion. Grasping the lapels of his cutaway-- in the pockets of which he carries, for souvenir hunters, reprints of the address he made renouncing his opposition to increasing the Supreme Court (TIME, March 1)--he made a deep bow and replied:

"I could not ask for order in the tace of such repartee. I feel highly honored to have such a distinguished journalist deign to notice my feeble remarks. You know, I am the dean emeritus of inconsistency, and I have been conferring degrees for inconsistency, but I will offer you none."

Not all the members of the Committee, however, were able to keep the proceedings on this elevated plane. Senator William H. Dieterich, onetime school- teacher and alderman of Rushville, Ill., the very cartoon of a porcine, "practical" politician, was inclined to grunt at witnesses. Originally noncommittal on the President's Plan, he lately got a bit of patronage in the form of an appointment to a Federal judgeship. and by last week he was dutifully surly toward the Opposition. To those whose answers did not suit him, the tone of his retorts was rough. At one point Professor Griswold of Harvard said:

"There are at least two ways of getting rid of judges. One is to take them out and shoot them, as they are reported to do in at least one other country. The other way is more genteel but no less effective. They are kept on the public pay roll, but their votes are canceled."

Senator Dieterich snapped at him: "Do you think there's much difference between shooting judges and retiring them?"

"A great deal." agreed the professor.

"As I have said, retiring them or canceling their votes is much more genteel."

Next most disturbing influence was that of Edward R. Burke, who three years ago was elected to the Senate with the support of Nebraska's Democratic boss, Arthur Mullen. Slow-moving, stocky, a lawyer out of Harvard Law School, he first won national attention during the campaign of 1934. President Roosevelt at Green Bay quoted one of Burke's rare purple passages ("The New Deal is an old deal as old as the earliest aspirations of humanity for liberty and justice and the good life. . . . It is new as the Declaration of Independence was new and the Constitution of the U. S." etc. etc.). But Mr. Burke and the President have since differed. He began to talk of trimming New Deal expenditures. Last summer he answered Secretary Wallace's Whose Constitution? in a speech called Our Constitution. Last August in mid-campaign he resigned from the Democratic National Committee. His reason presumably was the nomination of wild Terry Carpenter for the Senate on the Democratic ticket, but his letter to Chairman Farley had a two-edged paragraph: "I cannot work for the election of any candidate masquerading as a Democrat who is a Democrat in name only and who neither understands nor cares at all for the fundamental principles [of[ the Democratic Party. . . ." Now Senator Burke is the marshal of the pro-Court forces on the Judiciary-Committee. As such he clashed last week with bumbling Senator Dieterich and went so far as to say, ". . . His questions do more good than any I could ask." His best clash occurred one afternoon with Senator Joseph C. O'Mahoney of Wyoming, who was Mr. Farley's First Assistant Postmaster General until he was appointed to the Senate three years ago. Mr. Burke mentioned that "within the past two hours a very responsible official of this Government" had told him that the President would soon ask for a billion or a billion and a half dollars for Relief. "He asked." said Mr. Burke, "if I did not realize the futility of trying to fight against $1,500,000,000." Name the official, then," cried Senator O'Mahoney. "If that statement was made for the purpose of influencing the Senator's attitude, the name ought to be made public."

"It was not made for that purpose," Mr. Burke smiled, ". . . but there is no merit in emulating the ostrich. ... I don't intend to be deterred from bringing out in the open every influence that will be brought to bear." "Bring it out then," roared Mr. O'Mahoney. "Don't hint at it. Who was the man?" With difficulty order was restored, but the quarrel broke out again after the hear ing, for the benefit of spectators who had not yet departed. Similar charges of Administration pressure were made by Senator Burton K. Wheeler of Montana :

"Evidence of the Attorney General's strategy on this issue is revealed by the activity of the hired help he sends daily to the Capitol with instructions to be conveyed to members of the Senate Judiciary Committee."

The press assumed that the Attorney General's "hired help was his Assistant Attorney General Joseph B. Keenan, who has been acting as the President's lobbyist. One who did openly name Mr. Keenan was the Senate's recalcitrant "baby" mem ber, Rush Holt, who said, "For 14 months I was not even consulted about appoint ments in my State. I got nothing, not even a janitor. Immediately after the President submitted his Court proposal I was called by a high official . . . Judge Keenan of the Department of Justice. He very generously wanted to know if I was interested in suggesting some one for a Federal judge in West Virginia. ... He did not say T am going to give you a judge for your vote.' I hope he did not think I was that dumb, but I knew what he meant and he knew I knew."

The U. S. Senate was wrarming up for the best scrap in a decade.

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