Monday, September 29, 2008

Pound under Pressure

[The following is the seventh in a series of posts on Roscoe Pound and the administrative state. The series starts here.]

Unnoticed in the initial round of correspondence between Arthur Vanderbilt and Roscoe Pound was a basic disagreement over the committee’s mission. Although eager to have a learned and “objective” report to immunize the ABA from charges of partisanship, Vanderbilt also wanted Pound’s “gilded endorsement”--the phrase is George Shepherd’s--for a bill that would preserve the judiciary’s suzerainty over the New Deal. Pound took a longer view of the job before him. He sought to awaken the nation’s common lawyers to the danger “the jurists of the left” posed not just to judicial supremacy, but to the very idea of law as the “subjection of force to reason.” Once they understood their peril, they could be counted upon to do their duty and come up with a bill on their own.

Shortly after his appointment, Pound explained to Vanderbilt that he intended to write a comprehensive survey of the administrative process in the federal government, the states, and common-law countries outside of the United States and an expensive statement of “the future of our common-law doctrine of supremacy of law in relationship to the development of administrative agencies.” Although Pound neglected to mention that he would be drawing up a bill embodying the vote of the House of Delegates, Vanderbilt let the matter passed, perhaps because he knew that a member of Pound’s committee would make the point. For although Vanderbilt ousted McGuire from the chairmanship, he felt obliged to continue the Colonel on the committee, perhaps because of his ties to Senator Logan.

Pound attempted to conciliate McGuire with a show of deference. “I am afraid I shall have to rely on you a good deal, as it will take much study on my part to catch up,” the most learned jurist of his generation wrote to the government lawyer. He also asked for forbearance. “I can see that we ought to be starting the work as soon as possible, but I am just entering upon a new job as University Professor and shall have to ask the Committee to be patient with me a bit until I get more settled,” he explained.

Patience was not Colonel McGuire’s long suit. “With the exception of Monte Appel of Minneapolis I had a fighting Committee last year,” McGuire complained to Newton D. Baker, a member of the ABA’s Board of Governors, in November. “This year the Committee was entirely reconstituted by leaving off all of the members except me and the Committee was given a new Chairman in the person of Dean Pound. While a great lawyer, or rather law student, I know of no particular accomplishments of his in the field of administrative law.” The committee still had not met, McGuire complained, when by now it ought to have “placed the finishing touches on the bill and turned it over to the Board of Governors for approval. . . . . The situation is rather discouraging.”

McGuire’s importuning at last forced Pound to question his understanding of his mission. Was he correct in thinking that his report was to address the fundamental questions of administrative law? he asked Vanderbilt in late November. “I put this to you in this way because I . . . am receiving a good deal of pressure to hurry up reports on pending legislation which seems to me from such study as I have been able to make of it involves a question of administrative organization rather than of administrative law.”

In reply, Vanderbilt, who also had endured “the fulminations of the disagreeable Colonel McGuire,” politely insisted that a scholarly study was not sufficient. “I do not believe we can stop there at this time, when the reorganization of the Executive Departments is pending in Washington, and when the report of the previous Committee, as voted on by the House of Delegates in Kansas City, must be regarded as a mandate to the Committee, even though the vote was a very close one.”

Now it was Pound’s turn to be discouraged. “I am a good deal troubled about the Committee on Administrative Law,” he confided to a former student.
There seems to be a desire to push me into an immediate report of some sort on a matter which seems to me to require very thorough preparation. One of the best jobs I ever did was in the report on reform of legal procedure to the American Bar Association in 1909. Nearly everything which I urged then in the face of much opposition has now become generally recognized and is largely put into effect, or is being put into effect. I should like to make a thoroughgoing report of the same kind as to administrative law, but that cannot be done if I am to rush into print with something about current propositions.
In January he offered to resign, “in view of the evident demand to do a good deal at once which I do not see how to do without an amount of immediate study that I cannot possibly give to it. . . . If you think that more rapid progress ought to be made,” he wrote to Vanderbilt, “do not hesitate in saying so and relieving me of the Chairmanship.”

Vanderbilt blinked. He urged Pound to stay on and, by way of commiseration, said of McGuire, “I hate to dignify him by calling him a pest, but I think that is the proper designation.” Reassured, Pound turned to his task. “From now on I am devoting one day each week to the report on administrative law until my work is complete,” he explained to the ABA’s secretary. More frustration awaited him, however, as McGuire and another committee member, the lawyer and political scientist Walter F. Dodd, refused to rubberstamp a draft of his report. “I wish devoutly I had never undertaken to have anything to do with the Committee on Administrative Law, which has harassed me beyond belief,” he confessed in April 1937, with the deadline for the final draft looming. “Colonel McGuire and Mr. Dodd are terribly persistent. The one seems to want a court set up so he can be Chief Justice. The other is firmly set for administrative absolutism and wants the Committee to do nothing so that the administrative absolutist program can go on.”

Reluctantly Pound agreed to convened the committee in Washington to work out their differences and then hurried to produce a draft embodying the resulting compromises. Still more provoking was the Board of Governors insistence that Pound produce a bill. Evidently, Pound thought that to keep him as chairman, Vanderbilt had agreed to task a committee of the Board of Governors with drawing up legislation, but “at the last minute, a board member insisted that it was the Special Committee’s job. When Pound refused to commit to “any detailed specific measure,” McGuire, in his own capacity, sent a slightly revised version of the previous year’s legislation to the Board of Governors. “Without the consent or knowledge” of the Special Committee, the board revised McGuire’s handiwork, appended it to Pound’s report, and inserted a reference to the bill in the committee report. Pound struck this out and would later protest, privately, that his committee “had nothing to do with that bill”; still the natural inference one would draw from the ABA’s conference program and annual report was that the former dean of the Harvard Law School had endorsed the measure that became the Walter-Logan bill.

In fact, Pound disapproved of the legislation, but he did not want to alienate the allies he counted on to resist “the general march of absolutism all over the world” with an unambiguous disavowal. Pound’s objections and his defense in his report not just of judicial supremacy, but the very idea of law as the “subjection of force to reason” will be the subjects of a future post.