With his own availability increasing more and more as time goes on, and the handicaps of other possible appointees becoming more marked, Felix Frankfurter, Byrne Professor of Administrative Law in the Law School, is today the most likely man in the country be appointed to the United States Supreme Court, in the opinion of leading political experts.
Although there are numerous other names on the list of possible men which President Roosevelt is studying now, every one has some handicap which would make the President hesitate before naming him. Against Professor Frankfurter there are only two bad points from the White House point of view. The first is that during the bitter fight last year, when Mr. Roosevelt's plan to pack the Supreme Court was engaging the interest of the country Professor Frankfurter refused to stand at Armageddon and do battle for the Sage of Hyde Park.
The general report had it that, while Professor Frankfurter was as deep-dyed a liberal as the President could wish for, nevertheless he (the Professor, that is) has a conscience, and the thought of using the sophisticated argument that the Justices were so old they needed six additional associates, was more than he could stomach. Or perhaps the memory of Mr. Justice Holmes, in full possession of his faculties at the age of 91, was too fresh. In any event, Professor Frankfurter did not support the Court packing plan, and the President was deeply wounded.
Lately there had been evidence that this breach is healed. In the early Fall Professor Frankfurter was a week-end guest at Hyde Park and everyone seemed happy and friendly at that time. Also there has been no dimunition in the stream of Bright Young Men which the Professor propels toward Washington, and Mr. Frankfurter's advice is again eagerly sought by the President, it is understood on good authority.
The West Protests
The only other point against the Wizard of Langdell Hall, is that he is not a Westerner. The West has been becoming more clamorous recently in their demand for a Supreme Court Justice. Never in the history of the country has a man born west of the Mississippi River been appointed to the Supreme Tribunal. Mr. Justice Sutherland, who is listed as hailing from Utah, was born in England, and Mr. Justice Field, who held sway during the seventies and eighties, although he was registered from California, really was an Eastern invader from new York.
But as two things militate slightly against Professor Frankfurter, two other factors are still more strongly against the West. In the first place, it is unfortunate but true that there is a great lack of man power of Supreme Court caliber in the West. Although there are numerous sound conservative possibilities, it is, of courts, inconceivable that anyone but a fairly rampant liberal would get the call from the White House.
With that limitation in mind, the quest becomes distinctly discouraging. The names one hears most frequently are Nen Mexico's Circuit Judge Sam Bratton California's Circuit Judge William Penman. Senator Louis B. Schwellenbach of Washington, and then, a little farther to the East, former Governor Frank Murphy of Michigan. There is nothing particularly against Mr. Bratton, who has served in Congress, in addition to his judicial experience. Politically perhaps his appointment would not be the expedient for the President, for New Mexico is rarely a crucial state, with its three electoral votes. Denman is a weak judge in a weak circuit, according to the best legal opinion of the Pacific Coast, while Senator Schwelleubach has numerous drawbacks.
In addition to being so far to the Left of the Left of the Senate that they considered seating him in the Left hand cloakroom for a time, he has a rather limited legal and judicial experience. He practiced in Seattle for about 11 years, and his other accomplishments (listed by himself in his "congressional Record" autobiography) include the Stage Commandership of the American Legion in 1922, and the fact that he is bachelor, residing with his mother." The recently-defeated Governor Murphy of Michigan, known as the friend of the C.I.O. is anathema to the conservative wing of the Democratic party, which recently gained the upper hand, and his appointment would serve notice of an open split of the Democrats into two angry camps.
The West's Discourtesy
Also militating against the appointment of a Westerner is the fact that the West was so discourteous to the New Deal in the last election. Together with diminishing the President's hopes for a third term, that election is reported to have angered the Chief Executive, and he is not considered likely to be in the mood for conciliating the West.
In the East in Addition to Professor Frankfurter, here are, of course, other possibilities, and the strongest of those is Judge Lehman of the New York Court of Appeals and brother of the Governor. Reports were rife last September, when Governor Lehman was being urged to save Democracy from Tom Dewey, that if the Governor would only run, his brother could order a new black robe and take his place at one end of the Supreme Bench. It is just because those reports were so frequently heard that it would be extremely embarrassing now for the President to appoint Mr. Lehman.
A Black Man?
There are other likely candidates, of course. And then there is always the chance that Mr. Roosevelt will indulge himself in another of those proud, unpredictable gestures that sent Hugo Black up to the Supreme Court, to the consternation of the country, and the amazed disbelief of his colleagues: If the President should be in that kind of mood again, anyone from Mayor La Guardia to Governor Phil La Follette or Maury Maverick of Texas might find themselves reading minority opinions one of these days.
But of all the field, Professor Frankfurter seems clearly in the lead, and the recent poll of the American Bar showing him to be the overwhelming choice of the lawyers of the country, certainly did not hurt his chances. The strongest thing that might keep Mr. Frankfurter from the Supreme Court, is his own desire to stay in his present position. He has long felt that the weakest part of fur Government was our great lack of able public servants, and in recent years he has single-handed filled some of the most important positions in Washington with brilliant men whom he feels are capable of raising our civil service to the levels of the British Service.
If he were appointed to the Supreme Court, it would be extremely difficult for him to continue this work. In his recent speech at the unveiling of the portrait of Justice Louis D. Brandeis, he referred to the "monastic life of a Supreme Court Justice," and his friends entertained but little doubt of what he was referring to.
In any event the appointment will be made soon after Congress convenes on January 3, and the informed political observers of the country have come to believe that Felix Frankfurter will be named to carry on the Harvard tradition of the Bench, which started with Justice Story in the very beginning of things