TBA Law Blog

Posted by: Jason Long on Mar 1, 2017

Journal Issue Date: Mar 2017

Journal Name: March 2017 - Vol. 53, No. 3

On Feb. 5, 1937, lawyer and congressman Hatton Sumners, chair of the House Judiciary Committee, was summoned to the White House for a breakfast meeting with President Roosevelt and other Congressional leadership. The purpose of the meeting was intentionally kept secret from those invited. The president was, at that time, at the height of his immense popularity. He had won reelection to a second term the year before in the most decisive vote in our country’s history, since the advent of the two-party system. Garnering more than 60 percent of the popular vote, Roosevelt carried 46 of 48 states and received 98 percent of the electoral vote.

Democrats pledged to supporting the president and his agenda had supermajorities in both the House and the Senate. The only obstacle to the president’s vision for the country was an aging Supreme Court that had recently ruled several of his New Deal programs were unconstitutional. The president had a plan to fix that, and such was the purpose of the breakfast meeting.

President Roosevelt laid out for the Congressional leadership his Judicial Procedures Reform Bill of 1937, known to history as the “Court-Packing” Plan. Under the proposed legislation, the president would be able to appoint one new justice to the Supreme Court for each sitting justice who had reached the age of 70 years and six months. It just so happened that the 1937 Court was the oldest in recorded history, and the legislation would have permitted the president to name six new justices, firmly putting his progressive “stamp” on the court.

The plan landed with a thud. After the president left the meeting, it became abundantly clear that the leadership was not excited about pushing the popular president’s new proposal. It was Congressman Sumners, representing a district in Texas but Tennessean by birth, who announced to his assembled colleagues, “Boys, here’s where I cash in.” He would not support the bill and, in fact, became an ardent opponent.

Before I make Congressman Sumners out to be a great hero, I should say that he was a southern Democrat of the day and his views and rhetoric on racial issues were abhorrent. However, on the issue of the Court-Packing Plan, he was in the right. Moreover, it took a measure of bravery to stand up to President Roosevelt in defense of the independence and integrity of the court. Congressman Sumners and his colleagues stood by the precept that the judiciary was a co-equal branch of government demanding protection from the political influences that ruled the day.

This is one of my favorite stories in political history. I am reminded of it now as I read story after story concerning President Trump’s reaction to the federal courts’ rulings regarding his executive order on immigration and the anticipated fight to confirm Supreme Court Nominee Neil Gorsuch. The integrity and independence of our Judiciary is again at stake, and again we need lawyers to stand up in defense of the Rule of Law.

The threats to judicial independence are coming from all sides of the political spectrum. President Trump has rightfully been criticized for his comments referring to Judge James Robart as a “so-called judge.”

For those interested, the American Bar Association (ABA) maintains a page on its website listing all statements made by bar associations around the country supporting the rule of law and condemning personal and unfounded attacks upon the Judiciary (www.americanbar.org/groups/bar_services/resources/resourcepages/immigrationstatements.html). Likewise, those outside the president’s party, elected officials and observers, who have suggested that Nominee Gorsuch should have his confirmation hearings delayed or filibustered, in retaliation for the refusal to take up the nomination of Merrick Garland last year, are playing a very dangerous game of politics with an institution that depends upon separating itself from such games.

A strong Judiciary is essential to a functioning democracy. Our Judiciary is only strong when it is credible and independent. Reckless criticism of the courts and over-politicizing the selection process of our judges will undermine those goals. Lawyers are the first and best guardians of our courts, and it is incumbent upon our profession to engage in their protection and actively educate regarding their importance and place in our system. This is an important time in our country to be a lawyer, whatever your political ideology.

Jason Long JASON H. LONG is a partner with Lowe, Yeager & Brown in Knoxville. A graduate of the University of Tennessee College of Law, he is a past president of the TBA Young Lawyers Division and the Knoxville Bar Association Barristers.