Roosevelt Asks Power to Reform Courts, Increasing the Supreme Bench to 15 Judges

Roosevelt Asks Power to Reform Courts, Increasing the Supreme Bench to 15 Judges; Congress Startled, But Expected to Approve
Surprise Message Asks Authority to Name New Justices if Old Do Not Quit at 70 SEES NEED OF 'NEW BLOOD' Constitutional Amendment and Statutory Judiciary Curb Would Be Side-Stepped LOWER COURTS AFFECTED Bench Would Be Expanded, Appeals Speeded and Defense Assured in Injunctions
By Arthur Krock
Special to The New York Times

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Washington, Feb. 5 -- The President suddenly, at noon today, cut through the tangle of proposals made by his Congressional leaders to "bring legislative and judicial action into closer harmony" with a broadaxe message to Congress recommending the passage of statutes to effect drastic Federal court reforms.

The message- prepared in a small group and with deepest secrecy -- was accompanied by a letter from the Attorney General and by a bill drawn at the Department of Justice, which would permit an increase in the membership of the Supreme Court from nine to a maximum of fifteen if judges reaching the age of 70 declined to retire; add a total of not more than fifty judges to all classes of the Federal courts; send appeals from lower court decisions on constitutional questions, direct to the Supreme Court, and require that government attorneys be heard before any lower-court injunction issue against the enforcement of any act of Congress.

Avoiding both the devices of constitutional amendment and statutory limitation of Supreme Court powers, which were favored by his usual spokesmen in Congress, the President endorsed an ingenious plan which will on passage give him the power to name six new justices of the Supreme Court.

Power Left to the President

Under the provisions of the bill drawn by the Department of Justice form Congress, if the six now sitting justices who are more than 70 years of age to not resign, the President is empowered to name a new member for each justice in that category. These are the Chief Justice and Justices Brandeis, Van Devanter, Butler, McReynolds and Sutherland. Thus, after the passage of the bill, which is generally expected, the court will number anywhere from nine to fifteen justices.

Although the message - an unusually long one for the President- was a general criticism of the effects upon government and private litigants of overburdened courts and superannuated judges, and stressed a general plea to Congress to make provision of a "a constant and systematic addition of younger blood" to "vitalize the courts," Congress instantly recognized its outstanding feature and purpose.

Although the message outlined basic defects in the administration of justice in the United States, and contained many reforms to which no exception will be taken, Congress quickly sensed that the President had hurdled the present majority of the Supreme Court on his way to the goal he outlined in his opening message of the session. This, as he stated it, is to find "means to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the modern world."

Variety of Emotions Aroused

That passage was the one which had brought the most cheers from the floors of Congress when the President uttered it. To achieve its aim was the object of all the proposed amendments and statutes which have heaped high in the Congressional hoppers since the opening of the session. When members of the Senate and the House became aware of the ingenious but effective manner in which the President planned to attain his objective without touching the Constitution or the powers of the court, they were torn by a variety of emotions.

Senator Robinson, the majority leader in his branch, said the message was "in no sense a violent innovation" and that it would be "substantially favored." Speaker Bankhead said the proposal was based on "a sound principle of judicial reform." Senator Pope remarked that the President had "neatly finessed the Supreme Court," which, so far as the majority is concerned, is correct.

Conservative Democrats, however, especially those in the Senate, gagged at the proposals affecting the Supreme Court. Many of them maintained prudent silence, waiting to see how the cat of public opinion will jump. But Senator Burke attacked a plan to "pack the court," and Senator Byrd said curtly that "orderly means" to amend the Constitution were provided in that instrument. There will be real opposition on the Democratic side, there seems to be no doubt that the Attorney General's bill, which was quickly referred to committees in the two branches, will be moved steadily to passage.

Republicans Sharply Critical

The Republicans were at first stunned; then they burst into violent criticism directed at the Supreme Court extensions. They accused the President of trying to wreck the judiciary. Senator Vandenberg said angrily that behind the "fine words" a fell intent was evident. Representative Snell said that the administration, "having already destroyed the economic stability of the country, apparently will not be content until it destroys the judicial stability." Senator Borah viewed much of the proposal with grave alarm. But these were few in contrast with the long lines of approving Democrats.

The President's plan had a dramatic setting and one he obviously enjoyed to the full. Last night at a White House reception he teasingly said to several guests - newspaper men among them - that "there will be big news tomorrow" and laughingly rejected pleas to indicate what the news would be.

The staff at the executive offices was assembled at 6:30 o'clock this morning to perform the requisite clerical labor. The Cabinet, with the Vice President, was summoned for 10 o'clock and held in session for an hour while the President read his message and the letter and bill prepared by the Attorney General. It is understood that the Cabinet expressed approval of the plan and admiration for the ingenuity of its process. Warm with gratulation, the President was then ready for his regular Friday audience with the newspaper correspondents.

To them also he read all the documents and at one point in the reading - before the fact was obvious- looked up and said, "this applies equally to the Supreme Court."

The thoughts of many of those who watched and heard him instantly reverted to a press conference after the unanimous nullification of the NRA by the Supreme Court. Then the President was in a different mood. Then he was frustrated and angry and spoke of "horse-and-buggy" decisions in the machine age. Today he was calm and confident, plainly reflecting his conviction that, since the Republicans made his future Supreme Court appointments and issue in the last campaign, he had a huge popular mandate for what he was doing to change conditions in a court where the New Deal has sustained nine major legal defeats.

The President's message can be briefly summarized as follows:

In line with recent recommendations to reorganize the government's administrative machinery, this plan is to permit the judiciary to function in tune with modern conditions. The President, alone being directed by the Constitution to advise Congress on the state of the Union, is carrying out that direction herewith, and is further animated by the fact that Congress is empowered by the Constitution to see that the Federal judiciary functions properly.

That judiciary once more finds itself without sufficient personnel, although its quarters have been improved. It required over a hundred years to excuse the Supreme Court justices from "riding circuit." Congress has often changed the numbers and duties of judges; the Supreme Court's number has been altered five times. Today there are not enough judges to meet the needs of litigants. Additional judges are required, since court delay results in injustice. Lawsuits have been made a luxury available to the few, and unjust settlements have thereby been compelled.

The Supreme Court is deeply burdened and in the last fiscal year it declined to hear 87 percent of the pleas presented by private litigants. Sheer necessity to keep up with its work forced that.

The question of "aged or infirm judges," while delicate, must be met. Twenty-five lower court Federal judges, over 70 and eligible to retire on full pay, have not done so. "They seem to be tenacious of the appearance of adequacy" (a sly quotation from Charles Evans Hughes's book on the Supreme Court). This situation induced Attorneys General McReynolds and Gregory to propose, during the Wilson administrations, that when a circuit or district judge failed to retire at 70 an additional judge should be appointed in his court.

The law of 1919, passed to cover this, merely authorized such an appointment on a Presidential finding that the judge over 70 was inefficient. No President should be asked to make such a finding.

A judge's task calls for the use of full energies; modern complexities require a constant infusion of new blood in courts as everywhere else. To superannuated men facts become blurred, or they have lost the disposition to dig for them. This is recognized elsewhere in the government.

It is therefore recommended that provision be made for additional judges in all courts, "without exception," where judges are sitting beyond the retirement age. It was not intended to create a "static judiciary."

Suggests a Federal Court "Proctor"

To relieve congestion in the lower courts, Congress should empower the Chief Justice of the United States to appoint a "proctor" to watch all the courts and calendars in the Federal system. On his information the Chief Justice should be authorized to send in judges where needed. A bill is attached to afford general relief. The method it proposes is not costly, and limits the number of new judges. No question of constitutional law is raised, and no compulsory retirement is proposed, since there are and have been many judges beyond 70 whose services represent great value to the government. However, the bill extends the voluntary retirement and pay provisions of lower court judges to the justices of the Supreme Court, for whom there now is no retirement provision.

[There is, however, a law which provides that after ten years of service on the Supreme Court bench, and after reaching the age of 70, justices may resign and receive full pay for the remainder of their lives.]

Conflicting decisions in lower courts call for remedial action. These have brought the entire administration of justice dangerously near to disrepute. Rights accorded to citizens in one Federal court district are denied to citizens in others. It takes from a year to three years before the Supreme Court can settle the conflicts, which robs the law of "its most indispensable element, equality."

The conflicts and delays also produce uncertainty- for the government, and for private litigants- over too long periods. Finally, injunctions are too freely granted, sometimes without notice to the government. By postponing in various ways the effective dates of acts of Congress, the judiciary is assuming an additional function and is becoming more and more a "scattered, loosely organized and slowly operating third house of Congress."

This state of affairs has come gradually.

Calls for Notice Before Trial

Other recommendations- that no constitutional cause be tried and judged in a lower court without ample notice to the Attorney General so that he may defend the law. That lower court decisions in constitutional cases shall go at once to the Supreme Court and take precedence there. These, with the provisions of the attached bill, will eliminate congestion, make the judiciary less static and more elastic, assist the Supreme Court and help to make litigants more nearly equal before the law.

"If these measures achieve their aim," the President concluded, "we may be relieved of the necessity of considering any fundamental changes in the powers of the courts or the Constitution of our government - changes which involve consequences so far-reaching as to cause uncertainty as to the wisdom of such a course."

Cumming's Letter the Background

The Attorney General's letter furnished the background for the President's argument and recommendations and presented statistics of the law's delay. The bill, prepared in advance for Congress in true 1933 style, is divided into five sections and makes the provisions heretofore recounted.

While all of the legislative and executive personnel of the government and the press gallery buzzed all day with discussion of the President 's imitation of Alexander the Great and the Gordian knot, the justices of the Supreme Court in public at any rate, maintained complete and dignified silence.

It was noted that once more the magic number six finds favor in the President's mind. He used to talk of cutting the Cabinet down from ten to six. Then he approved the Brownlow committee's recommendation of six executives assistants "with a passion for anonymity." Today it is the Supreme Court which is to be increased by six if the bill passes, and the justices now over 70 years of age are all alive and refuse to resign.

It was also noted that the President announced his plan a few days before arguments on the Wagner act begin in the Supreme Court and in a week when a judicial order- in Flint, Mich.- has been disregarded both by government and by the private parties to the controversy which produced this writ.

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