The History of FDR's Court Packing Plan, Part 3: FDR's Ignores Early Portents and The Opposition In Congress Begins to Form

 

 

Almost immediately after FDR announced his plan before Congress, the GOP leaders in Congress and throughout the membership made an absolutely brilliant decision. They would not open their mouths about it at all.

Part of this was a tactical move: as much as this was a blow to everything the Republicans believed about FDR and the New Deal, they did not have the numbers to put up anything more than a token opposition. In the Senate where most of the battle would take place, there were only seventeen Republicans (Robert LaFollette Jr. of Wisconsin was a Progressive who occasionally voted with the GOP but just as frequently with the administration; both members of Minnesota were officially members of the Farmer-Labor Party and George Norris, who had served Nebraska for twenty four years as a Republican had been elected the previous year as an independent.) They also knew the second they said anything, FDR would be able to turn this to a partisan battle.)  They had spent the last four years raging against FDR had done to no avail. Now that he had clearly made a tactical blunder they decided to let this play out. ‘Mobilizing the base’ was not a term in use in 1937 but they knew that this would do the equivalent in the midterms and possibly beyond. Regaining control of Congress might be impossible in the next election but they’d take this as their first clear battle.

The day after FDR made his announcement the Democrats in leadership were appalled but kept their opinions to themselves. A couple of the most conservative Democrats in the Senate: Harry Byrd of Virginia and Edward Burke of Nebraska publicly announced that they would join the Republicans in opposition. Carter Glass of Virginia who had spent much of FDR’s first term in opposition of the New Deal, made a public statement that spoke for many Democrats when asked for his opinion:

“Of course I shall oppose it,” he told the press. “I shall oppose it with all the strength that remains to me, but I don’t imagine for a moment that it’ll do any good. Why if the President asked Congress to commit suicide tomorrow, they’d do it.”

The press repudiated FDR almost from the start of his announcement, even those that had been friendly to him.  Far more troubling was when letters and telegrams began to pour into the White House, and by a ratio of nine to one were an opposition to the plan. Bar associations condemned the bill. Assemblies in several states, including Texas and Nebraska, prepared to pass resolutions against it. Public statements came from average citizen who had voted for FDR for reelection who were bitterly denouncing it.

FDR was completely stunned by the reaction as his benchmark for judging it had been the ineffectual Republican campaign.   Throughout the battle FDR would repeat over and over to advisers and loyalists: “The people are with me. I know it.” This became harder to hold to as more and more of his friends, many of whom were New Dealers began to defect. And one of the most prominent was Felix Frankfurter.

At this point in his career Frankfurter was already a prominent figure. He was a cherished friends of Brandeis and Holmes; he had been one of the more prominent figures in the failed defense of accused anarchists Sacco and Vanzetti. When the New Deal had begun, he had become part of FDR’s brain trust from the start of his administration. But he heartily disapproved of the court-packing bill, in part for personal reasons: one of the justices who would be affected by this was eighty-year old Louis Brandeis.  Frankfurter only publicly showed his feelings on the bill once – in an anonymous article – but as a symptom to the larger problem, it meant a lot.

The leaders in Congress were uneasy almost from the start. Vice President Garner had made his feelings clear but more important were those of Speaker Bankhead,  House Majority Leader Sam Rayburn and Senate Majority Leader Joseph Robinson. They hoped for an alternative plan. Hatton Summers, another Texas Congressman, had put a judicial retirement bill together even before the 1936 election but they rushed it before the House that February. Then they hoped that the President might accept a smaller quote. A group of the leaders went to the President with that suggestion. They asked for a law where they would be empowered to fix it by voting on two or three additional justices.

FDR laughed in their faces and behaved so rudely that many resolved not to offer advice. The most hard-headed of his advisors believed that the President was living a dream world. The early signs of just how quickly the opposition was forming was almost entirely ignored by FDR and he seemed determined to pretend their were no problems. When he told his advisers he would make no speeches in February and not talk about it until he scheduled his address on March 4^th and after that had no plans to say anything until after his return from a vacation in Warm Springs they became frantic. FDR seemed to believe the opposition would go down with just a few oratorical punches.

Furthermore in the first few weeks, with the sole exception of Robinson, he refused to listen to Congressional leaders at all. The men he recruited for this fight were almost entirely from his inner circle. His leaders were primarily Corcoran  Joe Keenan for the Senate, Charles West Undersecretary of the Interior and FDR’s son James Roosevelt.

Keenan made it clear from practically day one that the Senate was not going to vote for this en masse: Joseph O’Mahoney of Wyoming and Tom Connally of Texas were likely to oppose. O’Mahoney actually got up from his sick bed and made it very clear he found the Court Bill ‘obnoxious, undemocratic and an insult to the Senate.” Not long after many of the conservative Democrats, among them Glass, Byrd, Burke, Royal Copeland of New York, Walter George of Georgia and Peter Gerry of Rhode Island announced their opposition.

Similarly in the House of Representatives Summers’ stand had gotten the bill through Judiciary by a five vote margin. This was actually a bigger blow because in FDR’s first term the House had almost always moved lockstep with the President’s wishes. This move showed they were prepared to rebel. The staff decided that they would go on the attack against the Senate.

It’s worth noting that at this point in history much of the influence over elected officials in Congress was still held by ‘bosses’  - organizations in major cities and states that held influence that the congressman could not act with full independence. As Alsop writes:

“…the feudal barons of local politics had been mightily impressed by the President’s November victories. Frank Hague in Jersey City, the Pendergast Machine in Kansas City, the Louisiana Ring…they all did their duties like soldiers and Smathers of New Jersey, Truman of Missouri and Ellender of Louisiana became sure administration votes.”

FDR spent the early days calling Senators and Congressman for the purpose of sounding them out. The problem was “he asked for no commitments, but he rather expected some. He did not get any and in lieu of commitment he received, from one Senator at least, a stern warning….The senator began by criticizing the Court plan and predicting trouble for it in Congress. The President pooh-poohed his criticisms and reminded him of the vote on Election Day. The senator rose and walked to the door. At the doorway he turned. ‘I’m not only think of the court plans and its effects of our government. I’m thinking of Franklin D. Roosevelt. I don’t want history to record that at the height of his career, (he) suffered a bitter defeat at the hands of Congress’”.

FDR did not, as he often did when he received criticism, laugh it off. Instead he flushed and looked straight ahead with a fixed gaze.

When the battle began on February 19^th in the Senate FDR was still confident and that was not entirely without foundation. He had his recruits, he had New Deal bitter enders such as La Follette, Hugo Black of Alabama and Sherman Minton of Indiana, and leadership and their immediate followers were on board.  There were thirty men committed to the court plan, thirty men in opposition and in the center a sizable group of which all but two were Democrats. Yet the first sign that FDR has misjudged the battle ahead came when George Norris, the Progressive from Nebraska who had campaigned for FDR in 1932 on the first day of the plan’s disclosure made it clear:

“I am not in sympathy with the plan to enlarge the Supreme Court.” FDR invited him to the White House in the aftermath to persuade him otherwise – Norris had been in favor of waging the election on the court and had previously announced legislation in favor.

The most powerful Republicans in the Senate – Minority Leader Charles McNary, William Borah of Idaho and Arthur Vandenberg of Michigan – had made it clear they would not fight the battle themselves. They recruited an important Democrat Burton Wheeler of Montana.

Previously Corcoran had  meeting with Wheeler about it. It became an argument and finally Corcoran pounded the table. “It’s going to pass,” he told Wheeler.

“I tell you it isn’t going to pass,” Wheeler answered. “And what’s more I’m going to fight it with everything I’ve got.” On February 13^th Wheeler announced his opposition.

The moment he did, the effect was felt at once. The White House had relied on La Follette to round up the independent left wing votes of the Northwest. Wheeler beat him to it and immediately recruited both of North Dakota’s Senators and Henrik Shipman of Minnesota.

The anti-court plan was acknowledged by a dinner of Millard Tydings of Maryland. At the center of it was a stirring committee with the outstanding members including Wheeler, Tydings, Connally, George,  Gerry, Burke, Byrd, Frederick Van Nuys of Indiana and Bennett Clark of Missouri.  Gerry served as whip and the active Democrats spent much of the battle trying to win over their colleagues. Liaison with the Republicans was maintained chiefly between the close partnership between the Democrat Wheeler and the Republican Borah.

As 168 Days states about the lead up:

“The administration had revealed surprising weaknesses – lukewarmness within the ranks of the Democratic faithful, an inability to hold the liberal allies together, above all the overconfidence the President had which blinded him to the true state of his affairs. The opposition had shown astonishing strengths – an intelligent unanimity of its conservative rank and file, an ability to attract the deserters from among the liberals previously allied to the administration, a capacity for effective organization. Two vital questions confronting the opposition had been answered – sufficient liberals were fighting the court plan to dilute the conservatism of the rank and file and the conservatives had shown sufficient sense to let the liberals lead the battle. Two great tactical advantages still helped the President – the Democratic party tie, and the need for a solution to the court problem – and it was clear that unless the second advantage could somehow be taken from him, he would win in the end.”

Now that the battle lines were drawn, the fight on the floor began in earnest. In the next article I will deal with the early skirmishes in that battle.