AN OPEN LETTER TO MR. JUSTICE BURTON
Rodell, Fred
An Open Letter To Mr. Justice Burton By FRED RODELL Dear Mr. Justice Burton: FORGIVE, if you will, the presumption that prompts this word or two of well-intentioned warning-. Lay it to an...
...It will not be easy...
...No matter...
...Cautious Cal Coolidge rated Harlan Stone a safe appointment back in 1925 and caught, as of that date, a tartar...
...Franklin Roosevelt thought Frankfurter and Jackson would be judicial New Dealers...
...They are things that too many judges, set above and apart, too often forget...
...You will not be able, even if you should wish, to stem the progressive surge of that Court, for you replace its most conservative member and, at worst, you can only duplicate his dissenting protests...
...It assured the President of your confirmation, by that unfortunate abnegation of Senatorial duty known as "Senatorial courtesy"— a confirmation which might conceivably have been denied you had you still been simply the Republican Mayor of Cleveland...
...Finally, presumptuous to the end, I suggest that you keep two things constantly in your mind and in your heart...
...What clinched your nomination, I believe, was the fact that you had been awarded, by PM, the Nation, the New Republic, and their ilk, the badge of "liberalism...
...I suggest that you have a frank talk about this probability with Justice Murphy who spent a freshman year or two on the Court under the Frankfurter spell before he found the gumption to stand on his own judicial feet...
...I have long been intensely interested in the Supreme Court of the United States—in its works, its whims, and its ways...
...You will find yourself charmed by Justice Jackson, whose background and general social outlook are probably closer to yours than are those of any other member of the Court...
...there are dozens of Republican Senators...
...Yours is a great opportunity...
...The other is that the law, too, is—or should be—a servant of the people...
...In the United States today, there are literally hundreds of men whose reputations, whether in public law or private law, outrank you and who might therefore be said to have had a prior claim to the job you got...
...You bring to the Court both types of awareness...
...IN the second place, the Supreme Court, of all our Government institutions, is ideally supposed to be above the pull of party politics, to be in a sense politically sterile...
...you are no Holmes, no Hughes, no Stone...
...One is that you are still, black robes and all, a servant of the people, not a potentate on a judicial throne...
...I think you know it was easy and almost a little cheap to lend your name to a generous-sounding gesture as essentially meaningless as it was politically pious...
...And who could have told from the Court's decisions of a few years back that McReynolds was a Democrat and Stone a Republican...
...Moreover, it is precisely on this sort of issue that the Court so often splits today...
...You will be made much of, for a purpose, by Justice Frankfurter, whose penchant lies along the lines of personal as opposed to purely intellectual persuasion (and he will not fail to play on the fact that you are a graduate of the Harvard Law School...
...Nor do I or any other progressive like the smell of the B2H1 anti-labor bill which recently won your eager sponsorship and will luckily lose your vote as you move to the Court...
...I was more than a little concerned to learn last night that you had been appointed a member of the Court...
...You won that badge primarily because of the publicity accorded your partial sponsorship of the B2H2 Resolution for U. S. cooperation in international affairs...
...But being a Republican and a Senator would not have been enough...
...I'm afraid that I was not so impressed as was the PM crowd by that sponsorship...
...He would never force them on you, but I daresay he would list a few for you if you should ask him...
...Your Senate membership contributed to your appointment in at least two ways...
...The Court has not always achieved this ideal, but it is still a target worth shooting at...
...I hope these predictions prove wrong...
...By progressive standards, that record has been, to put it kindly, spotty...
...You are no Cardozo, whom a reluctant Hoover could not but appoint...
...You can scarcely fail to be impressed—as lawyers and judges of every political hue have been impressed— by their scholarly brilliance, their fact-founded realism, and their statesmanship...
...You are smart enough to know that you were not named to the Court because of any demonstrated outstanding ability in the legal field— as judge, practitioner, teacher, or writer about law...
...Justice Burton, in large part because you are a Republican...
...I regret this type of reasoning on two counts: In the first place, it smacks too much of the practice of many universities, business-houses, law-firms, of deliberately hiring and high-ranking a Jew or two, a Catholic or two, a mid-Westerner or two, just to "prove" their racial, religious, or geographic impartiality...
...It was Black's service in the Senate that brought to a peak his respect for legislative decision...
...I do not refer to the Masons, the Moose, the Eagles, the Grange, Rotary, Kiwanis, or any of the others which, I see by Who's Who in America, claim you as a member...
...You, ex-Mayor ex-Senator Burton, should know better...
...I have been more impressed —and I do not mean favorably—by your voting record in the Senate on domestic issues where it has required a little more guts to be a "liberal...
...I wish you luck and wisdom and courage...
...You come, as you doubtless know, to a Court divided...
...What now...
...YOUR past record—as corporation lawyer (for the utilities, among others), as Mayor, as Senator— may not and need not set your judicial mold...
...You are on the Court because y'ou are a Republican, a member of Harry Truman's Senate club, and, by certain standards, a "liberal...
...It was Douglas' chairmanship of the SEC that taught him that administrators often know better than judges...
...You are there, too, because you belonged to President Truman's favorite club...
...And of course it was the occasion for your personal friendship with Harry Truman—a factor of considerable and lucky import to you...
...For you, alone on the Court, have had both executive and legislative experience...
...From here in, I intend to speak quite plainly...
...In my book, the Jew, the Catholic, the mid-Westerner, the Republican—or the Democrat—should get the job if, out of all available candidates, he seems most to deserve the job, and for no other reason...
...The political and financial security of a Supreme Court post tends to let men be themselves, for better or for worse...
...not of one financial class, not of one political party, not of one social stratum, but of all the people...
...It would be ungracious of me not to couple with my perhaps less pleasant comments my sincere congratulations, and that I do...
...and the cry had gone up that in a Court already overloaded with Democrats, the retirement of Republican Roberts should not be allowed to reduce the once-Grand Old Party's representation on the Court from two Justices to one...
...I refer to the U. S. Senate...
...You got it, as you know, for primarily political reasons, tinged a little with the personal, as all President Truman's appointments have been tinged...
...Your past, but non-judicial, record leads to predictions that you will side with Frankfurter and Jackson at the Court's right or, at best, vacillate from case to case with Stone and Reed who now hold the balance 61 power...
...You cannot but appreciate the problems, the viewpoints, and the impact of those two branches of government more intimately than can those who know them only as detached observers...
...I SUGGEST, too, that you get acquainted with some of Justice Black's more important opinions, which you may not have had time to read during your past busy years...
...But should you, perhaps, fully sense the strength, the integrity, and the vision of the Black-Douglas approach to most problems of law and government—and come to accept it as Murphy and Rutledge have done—you might turn this plurality of four into a majority of five and so assure, for a time at least, the forward march of American constitutional law...
...Who can remember to which party Justice Holmes belonged...
...It will happen to you...
...The common expectation is that you will not grasp it...
...But you are there, Mr...
...Lay it to an ingrained inability to keep my mouth shut about matters that interest me deeply or that cause me concern...
...First, you are a Republican...
...The right-wingers seem to feel that the judiciary is all-wise and should be almighty, that our tri-partite separation of powers can best be symbolized by a triangle with the Supreme Court at its apex...
...My guess, backed by more than my wish, is that they well may...
Vol. 9 • October 1945 • No. 39
