'Court complications' (2-13-41)

Reading Eagle (February 13, 1941)

By Frank R. Kent

Court Complications

Washington, Feb. 13 –
Unless those in the best position to know the Presidential intention are mistaken, no appointment to the Supreme Court to fill the vacancy caused by the retirement of Justice McReynolds will be made until after the lease-lend bill has been enacted. It may even be postponed for sometime after that. In other words, the selection has been held up.

The situation is not without interest. When the McReynolds retirement was first made, the practically unanimous forecast was that Attorney General Robert H. Jackson would be the President’s choice. But very quickly and unexpectedly it developed that Sen. James F. Byrnes of South Carolina had aspirations to go onto the bench. Three of his senatorial colleagues – Glass of Virginia, Harrison of Mississippi, and Barkley of Kentucky – communicated the fact to Mr. Roosevelt and urged the appointment.

This effectively put a crimp – temporarily, at least – in the Jackson boom. Senator Byrnes’ claims were stronger and his services have been greater. It was conceded that Mr. Roosevelt could not turn him down, and the forecasters agreed that as soon as the lease-lend fight was over Mr. Byrnes would get the job and Mr. Jackson would have to wait for the next vacancy, which presumably will occur if and when the present Chief Justice decides to retire, which, the pious hope is expressed, will not be for a long time.

Now, however, the situation seems to have changed again. Some of the President’s friends are pointing out that he simply cannot afford to take Senator Byrnes out of the Senate. After the lend-lease fight is over, he will have other requests to make of Congress connected with defense and British aiod. Struggles over retrenchment, NLRB amendments, a new Walters-Logan bill and other matters also are in the making. Senator Barkley, the official administration Senate leader, is generally acknowledged to be an exceedingly weak reed upon which to lean.

For a long time now the effective leadership has been supplied by Senator Byrnes. Without him the administration defeats in the past four years would have been more and worse; its victories, practically zero. The thought of having to depend on Mr. Barkley without Mr. Byrnes causes genuine apprehension among those around the President who know the facts. Some think it would be a little short of disastrous. They insist the President would be extremely unwise to thus cripple himself in the Senate. He would, they say, deeply regret it before the year was over.

Those who feel this way have evolved a plan for the President which they think would satisfactorily solve the problem. This is simple enough. All he has to do, they say, is name Senator Barkley to the court and thus make way for Senator Byrnes to become the Senate leader in name as well as in fact. This probably would delight Senator Barklety, would satisfy, it is asserted, Senator Byrnes, and not lengthen Mr. Jackson’s wait at all. To the objection that Senator Barkley knows little law and would make a poor judge, his New Deal advocates say: What of it? They already have a majority of the court. Senator Barkley would make another rubber-stamp justice, just as he has made a rubber-stamp leader, and his selection is the way out of a difficulty for the President.

As presented by its proponents, the Barkley suggestion seems plausible, but there are several reasons for not accepting it too seriously. One is that it may not suit Senator Byrnes at all. He is no longer young. He is reported to be growing tired of the Senate and to really want the dignity and repose of the highest court as the climax of his long public career. Another is that Mr. Roosevelt may consult Mr. Justice Frankfurter on this, as he does on a good many other things – the Ambassadorship to England, for example – and he may find that Mr. Frankfurter has other ideas.

Altogether, it is a rather complicated state of affairs. In the end, the left-wing New Dealers may prevail again, as they have so often done in the past. That would mean Mr. Jackson, and that ought to mean the elevation of the able Solicitor General Francis Biddle to the Attorney Generalship. That would be the logical appointment and it would be regarded as sure but for the fact that here, too, a dark horse looms up. It is understood that Paul V. McNutt of Indiana is ambitious to be Attorney General. Whenever Mr. McNutt develops an ambition – which is not infrequently – he does something about it. He may not achieve his ambition, but it cannot be said that he does not try.

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