Farewell to LAPA/Scenes from the Hundred Days

Your Humble Blogger with Marver Bernstein

Today is my last day at the Law and Public Affairs Program at Princeton University, where I spent a very productive academic year.  LAPA, as the program is informally known, had been welcoming to legal historians over the years, and its hospitality continues: Cornelia Dayton and David Rabban will be among the fellows in 2016-17.  In addition to getting to know my fellow fellows (including the legal historian Timothy Lovelace, Jr.), I enjoyed being down the hall from Stanley Katz and, although he was on leave, seeing Hendrik Hartog.  Chats with some of Dirk’s very talented graduate students, including LHB Associate Blogger Emerita Emily Prifogle, was another pleasure.  And, as the selfie above right suggests, I even got to commune with the spirit of a masterful scholar of the federal bureaucracy, Marver H. Bernstein, a former dean of the Woodrow Wilson School of Public and International Affairs, where LAPA resides.  Many, many thanks to Director Paul Frymer, Associate Director Leslie E. Gerwin, Office Manager Jennifer A. Bolton and Events Manager Judi Rivkin.

Leslie asked me for an excerpt for LAPA's newsletter from something I wrote this year.  I've decided to circulate it to you as well, gentle LHB reader.  It is adapted from the manuscript of my book-in-progress on New Deal lawyers.

[When constitutional historians debate why the Supreme Court voided statutes passed during the first hundred days of Franklin D. Roosevelt’s presidency but upheld those passed two years later, at some point they usually get around to the drafting of the legislation.  “Internalists” argue that inexperienced New Dealers made fatal mistakes in the early bills but learned from them in writing later legislation.  “Externalists” believe that FDR’s landslide re-election in 1936 or Court-packing plan of 1937 persuaded swing justices to vote for the New Deal.  They point out that some very able lawyers helped draft the “Hundred Days” bills.  For example, the drafters of the National Industrial Recovery Act (NIRA) included Jerome Frank, a masterful corporate lawyer, and John Dickinson, the author of a penetrating book on administrative law.  Neither camp examines the drafting of particular bills in much detail.

[Earlier in the chapter from which this excerpt is drawn, I describe how Frank and Dickinson, working with Agriculture Undersecretary Rexford Tugwell, drafted a bill to control American industry, unaware that another drafter was at work elsewhere in the administration.  Not only would their rival prevail in the drafting of NIRA, he would also direct the agency created to implement it, the National Recovery Administration, which the Supreme Court struck down in May 1935.]

Hugh S. Johnson (Dixon MSS)

Hugh Samuel Johnson entered the New Deal under the aegis of Bernard Baruch, a legendary financier who had chaired the War Industries Board (WIB) during World War I.  His financial contributions to Roosevelt’s presidential campaign and those of dozens of congressmen made him a power within the party.  Baruch had discovered Brigadier General Hugh S. Johnson when the West Point-trained, legally educated cavalry officer served as the Army’s liaison with the WIB.   After the war, Baruch hired Johnson to investigate businesses and perform other financial chores but kept him on a short leash, aware that his alcoholism, a legacy of his cavalry service, could erupt in incapacitating bouts of drinking.  Profane, irascible, given to florid obscenities but also flights of exalted rhetoric, Johnson lived in a world peopled with villains and victims, much like characters in the tales of military life he published in popular magazines.  As “Baruch’s man,” he developed a shrewd business sense and a “gift for condensing complex problems into simple lines of action” that made him a useful addition to the Brains Trust during FDR’s presidential campaign, after the financier bought him access with a huge contribution.  Labor Secretary Frances Perkins thought him “slightly unstable at times” but also “touched with genius,” “a driver and able.”  She was surprised when Baruch later called Johnson “a well-developed bully.”  Johnson was a good “number-three man,” Baruch told her, but as a “number-one man” he would be disastrous.

A good number-three man sufficed for a harried Raymond Moley, when, while casting about for an industrial control bill, he ran into Johnson in the lobby of a hotel.  The two former Brains Trusters had recently discussed the subject on a train ride to the capital.  Now Moley told “the General” that his experience at WIB made him the man of the hour and asked him to produce a bill.  After clearing it with Baruch, Moley dispatched Johnson to an overheated office with a staffer charged with bringing him up to speed.  “Before I could open my mouth,” the staffer recalled, Johnson “was making a speech.  The speech began with his clothes on and ended, by stages, [with him] taking off his coat, his tie, and his shirt until he was finally walking up and down in his undershirt.”  Twenty-four hours later, the General emerged with a one-paragraph bill to suspend the antitrust laws and institute federal licenses requiring higher wages and shorter hours, enforced with a ten-percent tax on a violator’s gross revenue.

Before long, the Dickinson-Frank-Tugwell group and Johnson started meeting together.  The sessions did not go well.  In part, the differences were substantive: Johnson insisted on the federal licensing of business; Dickinson thought licensing unworkable and unconstitutional.  Personalities intruded as well.  Johnson considered Tugwell “a damned Communist” because of his advocacy of planning in agriculture.  Dickinson spoke in great rounded periods, taking “the most obvious platitudes as a starting point” in “a pompous, almost grotesque, manner.”

When Roosevelt could wait no more, he dispatched Perkins to investigate.  She found a half dozen or so principals crowded around a table, assistants scattered behind them, in an overheated room beneath the mansard roof of the State, Navy and Army Building.  She tried to follow the discussion, turning on a close reading of the Supreme Court’s antitrust opinions, without success.  But Johnson was riveting.  “He was just ready to scream, he was so impatient,” she recalled.  “He squirmed around in his chair like a restless child.”  Coatless, Johnson would stand up, walk about, run his hands though his hair, and return to his seat.  Finally, he “pulled his legs up” into his chair and thrust his torso over the table, balancing on his elbows, fists clenched.  He had “a curiously restless, uncontrolled, undisciplined” expression, as if he were “chewing his face to pieces.”  At last, when he could stand it no longer, he accused the others of wasting time while “people in this country are starving” and “industry has gone to pot.”  Their “law stuff” was irrelevant, he exclaimed, because whatever they proposed would cure unemployment long before a case could reach the Supreme Court.  By that time, “nobody will care” what the justices thought.

After the two sides deadlocked, Roosevelt summoned them to the White House.  Frank told Dickinson to gird his loins.  Johnson was “very smart” and forceful, he warned.  He “put all his muscles into his words, his whole body vibrating.”  Dickinson opened with a ponderous lecture on the need to proceed cautiously.  Johnson followed with a passionate call to arms.  After they finished, FDR, as Tugwell blandly put it, “leaned toward shorter and quicker action.”  Frank was more frank.  Dickinson “was completely licked,” he recalled.  “We were blotted out.”