Such a succession of appointments should have provided a Court well-balanced as to age. But chance and the disinclination of individuals to leave the Supreme bench have now given us a Court in which five justices will be over seventy-five years of age before next June and one over seventy. Thus a sound public policy has been defeated.
I now propose that we establish by law an assurance against any such ill-balanced court in the future. I propose that hereafter, when a judge reaches the age of seventy, a new and younger judge shall be added to the court automatically. In this way I propose to enforce a sound public policy by law instead of leaving the composition of our federal courts, including the highest, to be determined by chance or the personal indecision of individuals.
If such a law as I propose is regarded as establishing a new precedent, is it not a most desirable precedent?
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.
This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our constitutional government and to have it resume its high task of building anew on the Constitution "a system of living law." The Court itself can best undo what the Court has done.
I have thus explained to you the reasons that lie behind our efforts to secure results by legislation within the Constitution. I hope that thereby the difficult process of constitutional amendment may be rendered unnecessary. But let us examine the process.
There are many types of amendment proposed. Each one is radically different from the other. There is no substantial groups within the Congress or outside it who are agreed on any single amendment.
It would take months or years to get substantial agreement upon the type and language of the amendment. It would take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress.
Then would come the long course of ratification by three-fourths of all the states. No amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time. And thirteen states which contain only five percent of the voting population can block ratification even though the thirty- five states with ninety-five percent of the population are in favor of it.
A very large percentage of newspaper publishers, Chambers of Commerce, Bar Association, Manufacturers' Associations, who are trying to give the impression that they really do want a constitutional amendment would be the first to exclaim as soon as an amendment was proposed, "Oh! I was for an amendment all right, but this amendment you proposed is not the kind of amendment that I was thinking about. I am therefore, going to spend my time, my efforts and my money to block the amendment, although I would be awfully glad to help get some other kind of amendment ratified."