now "the contenders," our series on key political figures who ran for president and lost but who nevertheless changed political history. tonight we feature former secretary of state and supreme court chief justice charles hughes, who ran for president in 1916 against woodrow wilson. this two-hour program was recorded at the u.s. supreme court here in washington, d.c. this is american history tv, only on c-span3. >> is what we claim we want in both the presidential candidate and a president. >> the man who did get it, a man

called charles evans hughes was a governor of new york and a supreme court justice, all but won the election in 1916. in fact, when president woodrow wilson went to bed the night -- the election night, he thought he was beaten. >> if he had been elected, how american history goes in several different directions on suffrage for women, civil right, what does he do on foreign policy, does he really -- germany sort of baited us into war. hughes would have avoided that. he is the one you could have wrote novels about. >> you have charles evans hughes who was on the supreme court, and then left the supreme court when he ran for president. and then went back on the supreme court. one of the finest minds on the court. >> a fellow justice called charles evans hughes the greatest in our great line of chief justices. >> why hughes? robert jackson provided part of the answer when he was attorney general. jackson said that hughes, quote, looks like god and talks like

god, end quote. >> footage of charles evans hughes shot as hughes, who was that year's presidential nominee campaigned soon after the republican national convention. tonight "the contenders" looks at the life and legacy of charles evans hughes, who in addition to being a republican presidential nominee was a two-term new york governor, secretary of state, and twice a supreme court justice. of all this, he is perhaps best known for his role as the chief justice during the years of fdr's new deal. "the contenders" is live this evening from the united states supreme court. just across from the capitol in washington, d.c. then, chief justice hughes inaugurated this building in when it first opened to the court in 1935. let me introduce you to our two guests, first two guests of the evening, who are joining us to talk about the life and legacy of charles evans hughes. david petrusia is a history yap. his most relevant book to this

period is called "1920: the year of six presidents" and bernadette meyler, thanks for being here. we'll jump right into the election. i want you to set the stage for us. 1916, woodrow wilson wants to be re-elected. europe is at war. frame what was going on in the country and in the presidential campaign. >> well, woodrow wilson had said when he ran it would be a tragedy if his administration was framed by foreign policy or defined by that and it turns out to be just that. america which starts his term focusing on the progressive era, the income tax lowering, the tariffs, the federal reserve system changes after 1914. with the beginnings of war in europe. america is fighting to stay out, but there is a question of preparedness for the war. are we prepared in case anything happens? are we being tough? are we being too weak? secretary of state brian

actually resigns from wilson's cabinet because he thinks we're being too tough. so it's really a question of war and peace in europe, war and peace in mexico. aside from all of the domestic issues. but war overshadows everything. >> and charles evans hughes is serving on the supreme court as an associate justice. how does he get from there into the nominating process? >> well, he gets there somewhat reluctantly because he enjoyed his position as associate justice on the court and was quite satisfied with his role there. but then he felt called by duty after several candidates didn't pan out for the republicans, he felt called to actually accept the nomination for president. but in a sense he wasn't a particularly gung ho presidential candidate. >> what was the republican party like at that stage? >> it's fractured. in 1912, there had been the great teddy roosevelt/william howard taft split.

t.r. runs as the progressive party candidate, the bull moose party candidate. and there's a question. there's a real question that year, is, are they going to be able to put the republican party back together again? and do you take roosevelt? roosevelt is still radioactive with the old guard. if you take someone who is too conservative, then the progressives will not come back, even though their party has sort of been dying on the vine for the previous four years. so you've got to pick someone who is respected by both sides, someone who is not some wild man from the prairies or from the west like a bora or a johnson, and someone who is not a conservative like root, and the man to do it, and also, the man who has been out of politics since 1910, because he's out of the supreme court, he has not been out of the -- he's not been a part of the 1912 battles is

mr. hughes, and he's respected by just about everyone in the party. >> what were his politics at the time? >> his politics at the time were mildly progressive. as i say, he's not like a wild man from the west like a lafollete or norris. but what he is he has moved from the practice of law. he was never interested really in being part of politics. when he first comes to new york and establishes his law practice they say, would you like to run for judge? no. would you like an appointment to a federal judgeship? no. but he is asked to investigate the gas monopoly in new york city, which is really gouging the customers. it's six companies. it's been going on since 1880. and they come to him and say, do you want to take over this investigation? he says, no, i really don't. i really don't, but he does -- he says how much time do i have to prepare for the testimony, for hearings? a week, a week. with a great brilliance this man has, he's able to pull

everything together, not do it in a bombastic way, but simply go through all the papers, grill the executives on the stand, bring the whole thing down, ultimately what this leads to is a public service commission in new york state, and you half the gas rates and electricity rates in the city by a third. then he moves on to fixing the insurance agency in new york state and really becomes a national figure. this is 1906 through 19 -- just before 1906. he is a progressive-type candidate who is opposed to the machine of the democrats in the city, tammany, because they are protecting these monopolies. but also the massive new york state political machine under boss platt, which had ruled even when t.r., roosevelt was on.

and t.r. would defer, would defer to the bosses to some extent. hughes moves forward, wins the governorship, puts forward a whole bunch of reforms. and then moves on to the court for the first time. >> today it would be almost unimaginable for someone to resign from this position and the building behind us to run for a national elective office. what was the reaction at the time? was it a surprise? how was it viewed? >> i think some were surprised, but also, i think that the office of supreme court justice wasn't quite what it has become now. i think part of the reason people would be so shocked today if a justice resigned is that the appointments process is much more difficult to actually get through. and it's much more difficult to confirm any justice. so justices are appointed young and are expected to stay for the rest of their working career. now, hughes' first appointment as justice was actually quite uncontentious. his second one was almost the beginning of the contentions within the appointments process. it occurred fairly soon after there were new rules about

senate debate on nominees, and it garnered a lot of criticism from progressives, actually, surprisingly given his career as governor of new york. >> we are, as you can see on the plaza of the supreme court. beautiful early october night here. we'll be here for two hours tonight in "the contender" series, 14 men who ran for the presidency and lost but changed political history. and charles evans hughes made his mark through his many positions, but particularly, in his role as the chief justice and then a second half of the program we'll focus on the whole contentious era with the court packing and the new deal and he was at the helm in the court during that period and lots of interesting things to talk with you about. later on we'll open up the phone lines as we've done for each of the programs and allow you to offer questions and observations during the discussion. where was the convention that year? >> i think it was in chicago. maybe philadelphia. i'm not sure.

the interesting thing is that there's two conventions going on a block apart from each other. that's -- that's the real interest in geography that year. the republicans go through a series of ballots. i think hughes is third on the first ballot. he moves up until he's nominated on the third ballot. meanwhile, meanwhile, the progressives are meeting just a short ways away and what they are doing is debating who they can accept, who they can accept. t.r. is basically saying i'm not going to do it. and he throws out a couple of names. leonard wood, who was a big advocate -- a general, army general, advocate of preparedness. he's got in trouble with the wilson administration, or henry cabot lodge. neither one of these guys is acceptable to the progressives. so he's throwing out that poison pill. what happens is, at the end, the only person that they can agree on, the progressives, is to any

extent, is hughes. but they still are in a great tiff, and they kind of dissolve the party. the party just evaporates, but they go away. they don't run a third party. this -- this is one of the great things of the legacy of hughes' race in 1916. we take the republican party for granted as a continuing thing since lincoln and all of this. it didn't have to be in 1916. if he's not the guy willing to put it together, maybe the progressives go back in again and we don't know really what happens with republican party. does go the way of the whigs? do the progressives replace it? who can say at that point? but the thing is hughes takes the position, didn't want to do it, really is uncertain what to do but walks away from the supreme court judgeship. he had said, when he had taken and when they were talking 1912,

would you be the compromised candidate to avoid the taft/roosevelt split? no, no, no, i won't do it. and then finally he does it. the democrats cannot fully criticize nominating a judge for the presidency. and there's a reason for that. because in 1904, they take elton b. parker off the supreme court of the state of new york and run him for the presidency. >> did he get the nomination on the first ballot? >> parker, no. hughes? no. he gets it on the third ballot. >> how difficult was it? i mean, do they come to the court and sit down with him and say here's other offer? >> i think they called him on the phone, someone called him on the phone. of course back then, candidates, even non-reluctant candidates, would not go to the conventions. there was a formal nominating process. weeks later they would have a big speech, sort of like surprise, you're our nominee. the fellow doing it that year was warren harding who had been

chair of the convention. but he's really undecided. even his family members and his closest associates are not sure what he's going to do. now, there had been people in the early days of the republic who had resigned from the court to take other positions. there had been a david davis on the court in like the '70s and '80s in the 19th century who took a senatorial nomination out in illinois, but not since then and certainly not since hughes. >> and can you speak, add if you are also familiar with this, but he had been a politician before he came to the court. how was he as a national campaigner? >> that campaign is probably the worst thing he ever does in his life. his life, really, not just his public career because he excels at everything. but that campaign, he's getting off the mark slowly. it's -- he's doing a dance, and

it's the dance that jack kennedy and richard nixon do in 1960. it's like, we've got the black vote in the north. we've got the southern white votes. what do we do? and nick kennedy carries both. the same thing occurs with the peace votes and the pro-war people in 1916. wilson runs the campaign. he kept us out of war. and hughes really is doing this dance, and he ends up losing both sides, really. he ends up losing the pro-war people, and he ends up losing the people who want to stay neutral. he's branded as being pro-german. you see these editorial cartoons. he's lumped with william randolph hurst with the irish nationalists. and all this. at end of the day the german-american vote goes to wilson. so he doesn't elucidate the campaign themes very well.

he's fighting on things like the tariff, which is not a popular issue for the republicans that year. there are labor issues. there are labor issues, which are very important that year. there's two big things which cross him up. they do not work well for him. even though, as governor of new york, he has an admirable record. he establishes workers comp boards, cases that whole system, first in the country. there's all sorts of labor regulations put in place for the first time. so he's really a champion of labor. but there, there's two things that happen. on the infamous california trip, which we'll get into later, two things that happen. the one thing which is never talked about is he blunders into san francisco where the chamber of commerce is trying to break the unions. they're particularly trying to do it in the restaurants. they want them to be open shops. in other words, you don't have to join the union to be there. and they force their restaurants to all put up open shop signs. where do they schedule his

appearance? in a restaurant with the open shop sign on the door. this sets off working men not only in california but around the country, union members around the country, and also, in september there's a threatened national rail strike. and the administration and the congress passes the adamson act which establishes an eight-hour day. first thing -- first time nationwide. and constitutionality is threatened later, but hughes opposes it, and again, this cuts into his labor vote. so he's got problems and he really doesn't -- really doesn't -- isn't able to really come out and say what he would do better than wilson. >> here are the phone numbers. we'll get to calls in six, seven minutes. 202-737-0001 for eastern and central time zones. 202-737-0002 in the pacific or mountain time zones. in addition to labor issues, there were also women suffrage

issues. at that time, women still did not have the right to vote in a national level. can you tell us about that aspect of the campaign? >> definitely. well, wilson had already changed his position to some extent on women's suffrage. initially, he was quite opposed to the notion that women would have the vote. both of his wives, actually, were also of his view on this matter. at some point, one of his daughters, though, became quite active in the suffrage movement and his views were gradually shifting. however, at the time of the election campaign in 1916, he still believed that women suffrage should be decided on a state by state level rather than by a national amendment. hughes went far beyond that to -- far beyond a lot of the republicans -- to claim there should actually be a women's suffrage amendment. and this is kind of puzzling because, in fact, the states in which women could vote largely went for wilson rather than hughes, which is somewhat

paradoxical given hughes' support. and there may be various reasons for that. one of them being this issue of the war and the women's peace movement which was opposed to the war. >> 12 states at that time had given women the right to vote. and for his support of women's suffrage a group of supporters of charles evans hughes formed a fan club, i guess, who campaigns for him. they went by the name of the hughesettes which seems modern when you think about it. we've got some interesting things to show you. one of the nieces of someone who was a hughesette has put together a hughesette website that tells the story of her aunt's participation in the campaign. it's elizabethfreeman.org. we're showing you some of the history of her aunt as a hughesette campaigning for charles evans hughes in the 1916 election.

just to also further explain your position, charles evans hughes' law firm where he practiced private practice, still exists today in new york city. we went there and talked to one of the senior partners who talked a little bit about charles evans hughes and his support for women's voting. >> very proud of an original addition of "the independent weekly" magazine which came out the week after justice hughes received the republican nomination for the presidency. that's mrs. hughes on the cover, who was obviously a very important person in justice hughes' life and in particular with respect to the issue of the magazine she's on here because of his support of women's suffrage, which she supported as well. something we learned in the magazine that we weren't aware of beforehand, which isn't often talked about with respect to justice hughes, is that the

republican party platform in 1916 was that simply each state would have the right to determine whether or not women would have the right to vote. justice hughes gave a speech which is reprinted in this magazine after that in which he said that he was going on the republican party platform and support the susan b. anthony amendment to the constitution which would provide the women the right to vote throughout the united states and wouldn't give each state the right to determine whether or not women could vote. >> from that we will move to election night because we know some of you have questions about the outcome. i read that wilson went to bed on election night thinking that he lost. >> he thought he lost and he was -- i wouldn't say he was resigned to it, certainly not -- he was almost about ready to either give up the presidency very nobly or in a huff. it's your call how you describe it. he has a plan where, okay, i've lost, i'm getting out, and back then presidents did not take office in january. he had to wait until march.

he had a big enteregnum, and you had a situation where the country was drifting towards war. so what do you do? his plan was he would appoint hughes as secretary of state getting the jump on warren harding because the secretary of state was second in line to the presidency. so once hughes was shuffled aside or secretary of state lansing shuffled aside which the vice president would resign and then wilson so sort of a three-point plan and hughes would become the president until he formally took his term. >> well, what happened is that it was an incredibly close election. >> oh, yes. back to that, yes. >> wilson won. >> in the -- >> 23 electoral votes. >> it is. it was a quarter million i think popular votes. it's not that close in the popular total. but uwhat it is, it is so close

in california. that's the key. it's decided by about 13 electoral votes. that is what the situation was in california. on the second incident, which occurs in california, and really, the particular nature of the incident is kind of overplayed because, again, back to that progressive party convention, which kind of dissolves and leaves the field open to hughes. they're in a bad mood. they're really not resolved as 0 who they're going to be endorsing and one of the really people with a bad temper is senator -- or governor of hiram johnson of california. and johnson is running for the senate in california. the united states senate. he has a primary and he's a very ornery guy. hughes, because of the limitations of travel in the days, has to get out to the coast early and back to the east coast where all of the votes are later towards the end where it's crucial.

so he swings through the california. he does this before the primary. johnson is the governor. he's not the candidate. the california republican party is so split and they cannot make any decisions on who will escort who, who will chair the meeting. it is -- it is worse than palestinians and israelis. it is -- the feelings are so bad. and finally, what happens is, there's an incident in long beach, california, where hughes, who is still not met johnson, goes in to rest at the hotel there, doesn't know that johnson is there. johnson knows that hughes is there. they leave the hotel. they never meet. and it is -- it is blamed that hughes has alienated johnson in this. but really, johnson could have made the move. he knew. he could have gone over, and in fact, right after that, hughes through an intermediary invites johnson to chair a meeting and

introduce him in sacramento. johnson refuses. and hughes loses the state by about 3,000 votes. they don't know until the next friday, friday after the tuesday of election, that he has lost the state. they don't know he's lost the election until that friday. but meanwhile, hiram johnson wins the primary and wins state of california by something like 300,000 votes. he wins it by immense amount. a lot of people blame hiram johnson. they blame that specific incident. but in fact in the first meeting of the progressives when johnson goes back to california, they endorse him but then they split up. they split up and they told separate meetings. we'll be for hughes. we'll be for wilson. he couldn't have swung all of the progressives if he wanted to but might have swung 1,600. >> in the end, in the women's vote, we mentioned 12 states, wilson won 9 of the 12. that says about charles evans hughes that he wasn't so much of a political tactician as he was

acting on conviction? >> well, i think so. i think he was much more of a principled person and a principled lawyer than a politician in certain respects. so i think part of, as i mentioned before, part of the reason that the -- some of the women didn't vote for him was because of his -- the perception that he would bring america to war whereas wilson had promised or they felt that wilson pledged to remain at peace. but really, also, i think one of the things that the hiram johnson incident really outlines and shows about hughes' character is that he wasn't really very interested in currying favor with other politicians or with people in the party machine. so i think that this has shown demonstratively in his gubernatorial career where he tries to oust some people who

have censures within the administration and that's met very disfavorably because people think that people deserved loyalty from the republican party. so he really just wasn't interested in playing a lot of political games, and i think that that hurt him in the election. >> for our two guests, let's begin taking some of your viewers' calls. take our first call of the evening from rootstown, ohio, this is duncan. hello, duncan. >> caller: hi. >> what's your question? >> caller: i was curious about any bad things charles evans hughes might have said about woodrow wilson, any bad things he might have done with the first term of his presidency. >> any bad things he said about woodrow wilson? >> he certainly criticized the lack of preparedness for wilson in terms of not having an army, a navy up to speed in case war came. he was also very critical of the wilson policy in mexico where you have the revolutions overthrowing the diaz administration, and i think 1912

or regime, and then the country devolves into chaos. if you see the movies "viva via" or "viva zapata" and you just see one revolution replacing another right on, wilson is concerned that, say, general huerta not impose another dictatorship on mexico and he sends marines into veracruz to block german arm shipments to huerta. there's incidents, crazy incidents over why they come in. it's like a flag flew here or not there. but the troops come. they go. mexico gets worse and worse and then in 1916, you get the columbus/new mexico incident where pancho villa raids an american border town, kills american nationals, and america

sends the expeditionary force in to mexico under blackjack pershing. but that's another disaster. there's a lot of things to criticize about mexico. there's a lot of criticize about preparedness in the wilson administration. these are the two things which hughes plays on. >> syracuse is up next. this is curtis. welcome to the conversation, curtis. >> caller: good evening. thank you for "the contenders." i just wanted to talk about a very important decision that charles evans hughes wrote and i'll get through this quickly. the national industrial recovery act was ruled unconstitutional in 1935 and later that year the national labor relations act was passed. and then they thought that was going to be ruled unconstitutional but then it came to the high court in jones and lofton steel in 1937. i think the high court was under pressure to change their positions from ruling new deal laws unconstitutional, and

hughes wrote that decision that ruled national labor relations act constitutional. i think the moral to that story is that even the high court can be put under political pressure to change their positions. thank you very much. >> thanks very much. knowing we'll spend a lot more time on it, just a very brief answer? >> you raise a crucial point and a crucial contention among historians which is the question of whether the switch in time that saved the nine, which is what defeated the court packing scheme that franklin roosevelt had proposed was actually politically motivated or whether it was consistent with the jurisprudence evolution of the some of the justices, including both justice roberts and chief justice hughes. and i think we'll get into that a little later. >> louisville, kentucky, shawn. good evening to you. >> caller: thank you. i was calling -- i'm a student at law school. i was wondering what chief justice hughes' court have on fdr's new deal, his view?

and thank you for should "the contenders." >> thanks very much. basic outlook of the new deal programs overall was? >> so, at the beginning of the new deal, as the prior caller mentioned, they were striking down a lot of new deal legislation, and the thing is that there was kind of a split between certain of the justices, some on the right called the four horsemen, and then others of the justices like justice brandeis who was quite far to the left. hughes and roberts were, in a sense, swing votes so that they basically would decide whether to uphold or strike down various new deal regulations. then in 1937, there was this fairly radical switch, or at least a switch that was perceived as fairly radical, where the new deal programs were upheld. >> we'll talk about charles evans hughes, the man. we heard at the outset from the current chief justice that

he looked and sounded like god. would you add a little more color? how tall was he? >> he was 5'11". interesting enough, he was very slight as a young man. very thin. as an adult, as a young man he weighed 127 pounds, and the guy who cleaned up the insurance agency, they would not write an insurance policy for him. they gave him the physicals and they'd say, we can't find anything wrong with him, but he's just too thin. we won't give him a life insurance policy. of course, he lived to be about 85 and was very vigorous, very active. ultimately, he reaches an adult weight of 173 pounds. which he would measure very carefully. he would do this in an interesting way. at breakfast he would have a pile of toast in front of him, and he was putting on too much weight, he would remove a slice of toast. and if he didn't weigh enough, he would put another slice on. but this fellow who was supposedly so slight and not

vigorous was a great mountain climber. when he is solicited by the state legislature in new york to -- after he's done the gas inquiry, he goes and he's -- i'm burned out and need a vacation. he's climbing the alps, and if he wasn't in public service so much taking up all his time and costing him a great amount of money, this is a point which is very important. this guy keeps coming back to public service again and again and again. after he was knocked out of the presidency, he might have said, to hell with you people! i've done my time. i've fixed this and that and done that and done that, and it's cost me money again and again and again. when he was governor he bore his own expenses on so many of the trips. in the supreme court, that didn't pay a lot. even before he became the great crusader, he was not taking on the big cases.

he should have been coming into his peak earning powers. one of his great rivals who had worked for hearst in the 1906 campaign against hughes said at the time when he became chief justice that his public service had cost him $6 million, okay? he gave up so much in terms of time and money to serve the public. in job after job, which he did so well. now, his intellect. his brains. somebody once said, huey long, that was first class brains, robert penn warren said that. it was the same with hughes. 6 years old he goes off to school, goes out there for awhile, and then he comes home, and he says i'm not learning that much there, dad. i could learn more here. yeah, son.

and here's how i'm going to do it. he has the charles e. hughes plan of study, which he lays out hour by hour how he's going to do it and he does it home schooled. a couple years later moves around again. maybe he's going back to school. same thing. stays out of school, and he's basically home schooled before home schooling was cool. he completes his high school studies on his own when he's about 12 or so. he's too young to get into college. he has to roam around new york city for a year before he can go in. there are stories where i think when he's secretary of state or governor, whatever, it doesn't matter, he's handed a three-page memo before he goes into a meeting. he reads it as he's walking into the meeting, and a stenographer transcribes what he says. it is off by one word. you see stories like that over and over again.

>> graduated from college at the age of 19 and then went on to cornell law school. i'm wondering if there's a sense of him at cornell these days. >> there is. actually he taught at cornell law school for two years, and he gave up very a lucrative practice in new york under the -- which was supervised by his father-in-law in order to take a health break at cornell and also to become an academic. he ultimately wound up leaving cornell law school partly because his father-in-law thought that his grandchildren shouldn't be raised in such a remote location. he later in life said among his happiest times were his times at cornell law school and teaching. >> he was a graduate of columbia. i apologize. wrong and important for all your columbia and cornell law school graduates out there. we have a clip of him we want to show so you can get a sense of his style very much of the period, but he was considered quite a great orator so let's

listen to what he sounded like. >> rancor and bigotry, racial animosities and intolerance are the deadly enemies of true democracy. there can be no friendly cooperation if they exist. they are enemies more dangerous than any external force, for they undermine the very foundation of our democratic effort. >> and we're going to go back to telephone calls. let's listen to a call from boston. this is frederick. you're on the air, frederick. >> caller: hi. i'd like to ask a question about where charles evans hughes was born, and also, did he come from a family of money? and if he did, where was the family -- where did the family get their money? >> born in 1862, glenns falls, new york. what do you know about his family? >> his father was a baptist, and

this was very important. his family was not particularly affluent, and he grew up in fairly humble circumstances. he was quite influenced by the baptist background that he enjoyed from growing up in this family, and, in fact, his father had really hoped that he would become a religious man himself. ultimately, was disappointed that he decided to go into law instead of religion. but his background actually did influence his jurisprudence later on, at least some argue that, because he was quite favorable to religious liberty claims and wrote several opinions that upheld a very strong view of the free exercise of religion under the first amendment. >> bloomington, indiana, next. this is daniel. daniel, you're on. welcome. >> caller: thank you. i'm glad you could take the time out and let us get in on this conversation. i actually have a question about if mr. hughes would have been elected president, if the federal reserve would have been

created under his administration, and if it hadn't have been, where might we be today. >> would the federal reserve have been created under charles evans hughes administration? >> it would not because it already existed. >> there you go. so on to our next question from south bend, indiana. frank. >> caller: yes. wilson ran on a platform that he kept us out of war. in july of 1916, there was a tremendous explosion in new york harbor called black tom's island, and after the war, the world court ruled that the german agents had, in fact, caused the explosion in 1970s. the german government finally paid the united states an indemnity. i was wondering if you can comment on the role of the wilson administration in covering up that explosion and its effect on the election. i'll hang up and listen on the tv.

>> that was a massive explosion of this ship, which it actually damaged part of the statue of liberty. shattered windows as far north as 42nd street. the wilson administration did down-play this because it was trying to keep us out of war at this point. now, it was very difficult for hughes that year because he's fighting two things. the country is very prosperous. there was a slight downturn after the adoption of the underwood tariff, but with the war, neutral parties tend to do very well in wartime. there's a great prosperity. so he's fighting that, and he's also fighting the fact that we really are at peace. the troubles which had occurred after the sinking the lusitania are the german government comes to its senses momentarily and ends its policy of unrestricted

submarine warfare. it's not until after the election that it resumes that. there is tremendous sabotage going on in the country. they're funding of pro-german groups. one of the problems wilson has during the war, during the election, is they bring up a meeting they had with four pro-german people. one of whom was a fellow named jeremiah o'leary, an irish nationalist. this was one of the big issues too regarding the 1916 campaign, which is why there would be anti-english sentiment would be among the irish population, and the irish it wasn't just 400 years of ill feelings. it was that they were still under the british flag at that part. they wanted their independence. hughes is facing all of these problems, and the question is, what's he going to do about them? the troubles arise after that election, particularly in regard to the zimmerman though, which is unveiled where germany is

plotting or trying to entice mexico in to attacking us and taking their lost provinces back. >> before we leave this section on hughes' personal life, i'd like to talk about his spouse, antoinette carter. can you tell us a little bit more how they met? do you know about this story? >> i don't. >> i'll tell you a little bit. then we have a clip and we'll come back to you. actually was the daughter of a senior partner at the law firm. and let's listen to the current day senior partner at that same law firm talk about antoinette carter, and then we'll come back and hear more about their marriage. >> another thing we wanted to highlight at the charles evans hughes conference center was the importance of mrs. mews hughes in justice hughes' life. we've selected for that reason a wedding invitation, their wedding invitation and a photograph of the two of them in their prime. mrs. hughes was the daughter of walter carter, who was the senior partner in the hughes law firm. as lore would have it, justice

hughes met mrs. hughes at an office party where sle was there with her father. she was a very educated woman and influential in his life. he also had three daughters who together with mrs. hughes, i think, or we believe had a great affect on his views, including his support of women's suffrage among other things. >> and last week we learned in our eugene debs program that the partners were not partners in politics. mrs. debs stayed home while jean -- eugene debs was campaigning all the time. what about these two as a political couple? >> well, getting back to their marriage, their courtship is very slow. they meet a few times. it's like every few months or something, and because she is the boss's daughter, he won't go near her. when people say he married the boss's daughter, that's really a distortion of what happened. it's only until he is partners, full partners with carter that the courtship really begins. but she is -- there's -- particularly if you read in

there about their retirement together, how close a couple they are. they're very, very deeply in love, and she is really the first spouse which in a full-fledged campaign mode goes around the country on the train with him in 1960 almost like an proto eleanor roosevelt, going into those mines and stuff like that, stuff which really wasn't done then. >> another call. this is from fort worth. this is jack. you're on the air, jack. >> caller: hi. my question pertains to charles evans hughes's perspective on racism that was prevalent within the united states at that time. >> his perspective on racism. >> well, he was actually pretty progressive on race. in his first term as associate justice, he actually wrote an opinion that suggested that it wasn't valid for railroads to fail to create first-class accommodations for

african-american passengers even if they didn't have enough passengers to fill those accommodations. so he was actually more egalitarian on race than a lot of his contemporaries. later on, as chief justice, he would also be author and supporter of various opinions that undermined the separate but equal doctrine and paved the way for brown versus board of education. >> the next phone call is from lacrosse, wisconsin. this is mike. >> caller: i had a question maybe a little bit off the beaten path. it pertains to the two parties, evans' party and wilson's party about the institution of the personal income tax there and the tax debt. which party was against it, and which was for it, if i may ask? >> the income tax comes about as part of the revenue act of, i think, 1913. and that's important because that is part of the underwood tariff.

the democrats lower the tariff, and when they do that, they have to make up the revenue somewhere and they pass the 16th amendment. that all folds into the income tax, so i would say on the whole because the republicans are the tariff party that the democrats are in favor of the income tax more than the republicans. but in terms of hughes specifically, hughes is opposed to the income tax. why? because he says -- he reads it, and he's a lawyer. he's always a lawyer, and he's always reading every word no matter where those words go. he says, shall tax all revenue. all revenue. and he says, that means they're going to be able to tax the tax-free bonds of the municipalities and the states and destroy the balance of federalism. he opposes the 16th amendment,

but on those very narrow grounds and i believe that new york state as a whole rejects the amendment in the ratification process. >> baltimore, this is joseph. you're on the air, joseph. >> caller: hi, good evening. >> good evening. >> caller: in light of the public television programs this past week on prohibition, how was he -- did he have any attitude or input into that ugly affair? >> he's talking about the pbs series on prohibition this week. what was his own position on that? >> neither he nor wilson would be regarded as dries. he started -- he started to take a sip during the insurance investigation to steady his nerves at night. people said he was the human icicle. okay? he was bloodless and humorless but he was very high strung. he started taking a drink then. he was never a big drinker. there's a story told at the

havana conference of the latin american nations around 1924 or so as he's the secretary of state as to whether he'll serve booze or not. he sort of just sets it out there and walks over and takes the first one. he's not a prohibitionist. and really, none of the great national leaders that we can think of really are with any enthusiasm at all. >> it's time for us to dive now into more of his supreme court years. at this point we'll see good-bye for now to david. we'll see him later on in our two-hour program tonight. and do a deep dive into the supreme court years. to begin our discussion, we'll show you some film of president franklin roosevelt in 1937. his take on what is commonly known as the court-packing plan. after that, you'll see our current chief justice john roberts talking about his perspectives on hughes' role during this episode. but first, as we begin, a newsreel from that time introducing us it to each of the members of the supreme court in

1937. >> associate justice george sullivan born in england 75 years ago. immigrant to the u.s., he became senator from utah. here's butler of minnesota, 71. only supreme court catholic. the democratic appointee of president harding. willis vander vant from wyoming, 78. senior justice. 26 years on the bench. james clark mcreynolds of tennessee, 75. confirmed bachelor. a democrat appointed by wilson, has voted against every new deal measure. only three justices are pleasing to new deal liberals. benjamin nathan cardozo, 67. descendant of the jewish rabbi who officiated at george washington's resignation. and appointed by president hoover.

harlan fisk-stone of new york. 64. former dean of columbia university's law school. schoolmate of calvin coolidge. the oldest justice, justice louis brandeis of kentucky, 80. of distinguished jewish ancestry. so bitterly opposed as a liberal of 1912 that wilson dare not appoint him attorney general, but did appoint him to the court. holding the balance of power at two justices, owen roberts, at 61 the youngest justice, long a conservative. but since this fight began, liberal on seven decisions. and charles evans hughes, 75, the chief justice since 1930. sometimes conservative, sometimes liberal. president roosevelt goes on the air in an appeal for popular support for his plan to

reorganize the federal judiciary. newsreel cameras record his fireside chats his second such appeal within six days. he tells the people that his >> those opposing the plan have sought to arouse prejudice and fear by saying i'm seeking to pack the supreme court and that a baneful precedent will be established. what do they mean by the words "packing the supreme court"? let me answer this question with a bluntness. if by that phrase "packing the court" it is charged tha wish to place on the bench spineless puppets that disregard the law and decide specific cases as i wish to place on the bench, spineless pit who is would disregard the law and decide specific cases as i wish them to be decided, i make this answer.

that no president, fit for his office, would appoint and no senate of honorable men fit for their office would confirm that kind of appointees to the supreme court of the united states. we want a supreme court which will build justice on the constitution and not over it. in our courts we want a government of laws and not of men. >> the court packing plan was a very serious threat. it was proposed by an immensely popular president with huge majorities in both houses of congress and targeted a very unpopular court. as fdr put it, quote, the people are with me, end quote. hughes proceeded cautiously but with determination. his letter to the senate judiciary committee demolished the argument such as the convention that the court was not keeping up with its work. and echoing john marshall's views about how a court should function, hughes explained adding more justices would make

the court far more less efficient. as he put it in his letter, quote, there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. hughes chose not to directly criticize fdr's effort to change the court's jurisprudence but instead to expose that effort for what it was by refuting the efficiency window dressing, and it worked. >> that was perspectives from the time and also contemporary perspectives on the fdr era and the court packing whole part of history that we have all learned so much about as we grew up in this country. we're going to learn more about that in the guise of the biography of charles evans

hughes, 1916 republican nominee for president. he failed in that bid, but very narrowly against woodrow wilson. we are learning more about his contributions to society. we're joined by a new guest at our set outside at this beautiful october night in front of the supreme court building, paul clement, who served as u.s. solicitor-general from 2005 to 2008, now at georgetown university law school. thanks for being with us. >> it's great to be with us. >> bernadette meyler is with us. glad to have you. we said that he had two terms on the court. 1910 appointed as an associate justice, at the time the youngest, and in 1930 president hoover reappointed him this time as chief. what was the difference in him as a justice on the court during that 20-year period? did he come back as a different person? >> i think he did. he obviously had incredible experiences in the interim. everything from obviously the failed presidential run but also

served at secretary of state, served on the so-called world court in the hague. he comes back to the job as chief justice as somebody who certainly had many more different experiences, considerable executive branch experience, all of which i'm sure influences him as a justice. >> can you tell us about the court in 1930? >> yes. the court actually in 1930 was sort of much less conservative, actually, than it became in 1935 and 1936. so around 1930 when hughes joined and for the years that were directly following that, the court didn't really strike down that much economic legislation. it upheld various kinds of state economic legislation in particular, and then towards the middle of that decade it sort of shifted a bit in its decision-making to the right. >> and as a leader, as a chief in those early days, what was he

like? >> well, i think he was somebody who took to the administrative parts of the chief justice's job right away, and that makes sense. sometimes you have people certainly in the modern era becoming chief justice who have mostly served in judicial capacities, but here's somebody that ran the state of new york. he's a great administrator, so i think he took to those aspects of the job immediately. i also think he took to the other aspects of the job kind of hitting the ground running, because after all, he'd been an associate justice. this is only the second time in the nation's history up to this point where somebody who was an associate justice goes on to serve as chief justice. i think in many respects he's the ideal chief justice and hits the ground running. >> at that point was he a broker of opinions and a reliable vote on one side or the other? >> i think from the beginning he was somebody who was harder to typecast than some of the other justices on the court. he was coming into a court at that that as you point out was

not as bitterly divided as it became. it was still a divided court, and from his first days on the court he was near the center of the court. >> i want to take a couple calls. >> this brings up another point, which is that he was loathed to dissent. so he wanted to encourage harmony in the court, and he tended to write the most important opinions himself. he authored very few dissents, as an associate justice and chief justice because he wanted to encourage harmony on the court like chief justice marshall had towards the beginning of the republic. >> we'll take a couple of calls. mountain home, idaho. nick, welcome to the discussion. >> caller: thanks for taking my call. appreciate it. great program. >> caller: wasn't he considered god-like, too, because of decisions he made that were not entirely on the conservative end or liberal end? he tried to find a medium ground?

when he went for the new deal programs, was he pushed by hughes, or was hughes kind of following along? thank you for the program. >> thanks for watching. >> i think that hughes actually was much more of a swing vote than roberts was, so roberts tended to vote more with the conservative bloc of the court or four horsemen. hughes was more on both sides, or at least he assigned himself the more liberal opinions more often. some thing that was a disingenuous move designed to portray himself as more liberal in orientation than he was. i want to return about being a god-like presence. he was called a jovial presence on the court, and that was partly about his capacity as paul has been discussing. he held judicial conference in a authoritarian manner. he would announce his views at first and have the other justices go around and discuss the case. but he held pretty tight reins over the discussion in

conference and over the court in general. >> can we contrast that of what we know of the current chief justice's style? >> i think there certainly are a lot of similarities and not necessarily in the point of the way the conference is conducted on a day-to-day basis. i think justice hughes -- actually, in between the time he was justice and chief justice wrote a book on the supreme court, which is itself kind of a unique thing to get a window into the supreme court from somebody who has already served as an associate justice, and at the time that he's writing this book or giving these lectures doesn't know he's going to be the chief justice. he talks about the role of the chief justice in that book and talks about the limits on what a chief justice can do because at the end of the day, you are the chief justice of the united states.

you're only given one vote, and you do have to lead in a way that i think is more subtle than the kind of leadership you would have as a governor a secretary of state. i think he did manage to do a remarkable job of leaving the court, especially in kind of some of the administrative areas or moving into this building leading by example in that way. >> since you referenced it, let's take a minute and talk about this building. up until this period of time the court actually met across the united states in the united states capitol building. tell the story of how they came to have their own building. >> they decided they wanted to have their own building, and that in and of itself is something symbolically interesting. if you think about the court until they move into this building, they're in constant contact with the legislatures, and they're passing each other in the halls of congress. there's something very important symbolically to having a separate judicial building that's physically separate from

congress across the street and has a separate presence. there were, of course, criticisms as there always are anytime there's a public building. as you can see, this is an ornate and building beautiful. i think my recollection is, though, it ultimately came in under budget, which is quite remarkable. nonetheless, there was some criticism of why do they need to build this marble temple. >> william howard taft, who was president and became chief justice argued the court needed its own building. he didn't live to see it, and charles evans hughes, first chief justice to move in here. do you know anything about whether -- i read it was very controversial at the time, and not all the justices wanted to come and work here? >> i think that's partially you're talking about judges some of who are traditionalists and it's the depression. it's an expensive -- the optics of moving into this beautiful temple have its own kind of political dimension. i think part of it is just it was break with tradition. i think from the modern

perspective it seems like a terrific break and a break that was maybe long overdue. >> the pediment we're looking at, actually the architect included a depiction of charles evans hughes in the pediment. over the next call we might get a shot of that so you can see how the architects of this building depicted him. we'll listen to mount joy, pennsylvania. this is harry. >> caller: i used to study the supreme court, and in the 1935 decisions in some of the new deal cases, i think three major laws were struck down by unanimous supreme court decisions. they were unanimous. that included the liberals. from what i understand, when roosevelt made his court packing speech, louis brandeis was deeply offended by it because he was one of the more elderly members of the court, over 80 years old.

i did work on roberts, and from what i understood the votes on the case in 1937 were taken before in the court's secret chambers. in 1936 the votes were taken for the cases decided in 1937. that's from memorandum from felix frankfurt from what i understand. thank you for letting me be on the show. thanks very much. >> that caller provided a nice segue to get into the court packing era. set the stage for us, please. >> what happened in the -- i want to get back to this caller's question, because the crux of the court-packing scheme. what happened is fdr became extremely frustrated with the fact that a lot of new deal measures were being struck down by this supreme court, and sometimes by a unanimous court. >> on what grounds? >> on the grounds, first of all, of exceeding congress' powers under the customer clause. the commerce clause is quite relevant today. it's the source for passage of

obama's health care plan or the tax power, and it's also the source of a lot of legislation that is passed right now. so under the new deal the court basically was not as expansive in its interpretation of what the commerce power could do for the -- for congress and thought that often the states autonomy was being infringed upon by congressional enactments. another ground for validation was under substantive due process or contract, which was read into the 14th amendment or fifth amendment. the new deal court or hughes court had been striking down a lot of new deal legislation, and fdr in frustration after his re-election basically proposed this plan whereby the court's membership would be increased if justices didn't retire in a timely fashion. so under his plan there would have been up to six new justices placed upon the court. now, this gets into the question that was asked by the caller

about whether justice roberts, who was the chief person who supposedly changed his vote, had changed his vote before this court-packing scheme was promoted or not. one argument is that once roosevelt won the election, the court really felt that there would be a lot of pressure to uphold and sustain new deal legislation, and that it could no longer be striking down as many laws. so one argument is just that the court-packing scheme itself was almost irrelevant or wasn't the real catalyst that roberts felt that he had to change his vote simply because of roosevelt's re-election and this great democratic consensus behind him. >> paul, give us a sense of how engaged the country was in this. was this hugely controversial, or was this a washington story?

>> this was definitely not a washington story. it helps to understand the stage completely. think about fdr at this point. he's just been re-elected for the second term. he's dealing with the great depression. nobody is worried about whether it's the great recession. this is the great depression. he's trying to deal with it innovatively and passing the legislation getting struck down by the court. he's in his second term. by the time he's done with his fourth term, he will have appointed more supreme court justices than any other president than george

washington. but at this point he's like jimmy carter. he's been a full-term president and hasn't put anybody on the court. he's very frustrated with the court. he's very frustrated with the fact that they're striking down his legislation. he's of the view that they are really out of touch with the whole country, and that's part of the reason the country as a whole really focuses on this. i think a lot of that it was lincoln's secretary of

state and, also, part of the reason i'm calling, i've been looking back in that area, the speech by justice hughes was indicating, the ap tnti-racists the republicans seemed to have switched around the time of woodrow wilson's presidency and when he embraced and i want to to know what you think about all of that? >> that's a great question. i'm not as familiar with the relationship with seaward but there is an interesting story about hughes and race. he invited booker t. washington to an event, and it was a somewhat controversial invitation. he personally escorted him to a table. hughes pretty much retained a fairly uniform position on race

throughout his career, where he was in favor of at least greater equality. i'm not sure to what extent full equality, but against the backdrop of this change you're pointing out where previously republicans had been much more in favor of racial equality, and then the democrats also sort of took on that mantle. >> returning to the court-packing plan, charles evans hughes was how involved in lobbying or setting the stage for it being defeated? >> i think it was integrally involved, and as chief justice roberts pointed out, there was a favorite missive from the court to congress itself. that was something that justice brandeis was very much in favor of and suggested. the chief justice was very direct. in the same kind of skill set he brought to bear in investigating the gas companies back in the day. he was good with numbers, and he used the numbers and looked at

the court's docket, caseload, and he really as chief justice roberts indicated really took apart a neutral case for what fdr was proposing and laid bare the obvious motivation for the court-packing plan. >> how common between the court and legislature would it be for a missive to be sent from the court on to congress? >> it does happen. the chief justice, and i don't know whether this was the practice back in the day. it has become the practice that basically every year there's a state of the judiciary letter that the chief justice sending over to congress. sometimes it can be pointed. for a number of years rehnquist and roberts made a point of explaining that they were less than happy with the current state of judicial pay. so there continued to be these kind of issues between and among the branches, but i also think that probably the way the chief justice hughes handled the court packing scheme probably took

court-packing off the table as a realistic option going forward, and i think that's one of his great contributions. >> so i completely agree with paul clement, but i wanted to add two things. some did criticize hughes at the time for essentially issuing an advisory opinion. he had consulted with brandeis about, so there was unanimity among the court about it. one part of the letter said hearing cases in a panel system wouldn't be constitutional, and that seems like an advisory opinion. interestingly in the book that paul clement referred to before about the supreme court hughes condemned other justices for trying to issue advisory opinions. so there is some controversy about that letter, i think. >> next call is from st. joseph, missouri. daniel. >> caller: thank you for taking my call. this is kind of a follow-up to

the cornell professor's comment that owen roberts prior to the court-packing plan allied himself more with the four horsemen who were the conservative wing of the court. after the court-packing plan, arguably, owen roberts was a part in the switch in time to save nine. from what i've read, owen roberts would never admit that. does either one of you know why he really did change his voting pattern? >> do you know if he changed his voting pattern after that? >> well, the only person that knows for sure is justice roberts, and he's no longer with us. this is one of the reasons from an academic standpoint that court-packing is so interesting as a historical episode. there are a lot of competing

theories. they are supported at a detailed level, but we don't really know for sure. it's fair if you look at justice roberts' voting patterns, there's a fork in the proceeded and there does seem to be a real change that corresponds with the court-packing scandal and really these three cases that emerge at a critical time that go in a different direction. >> any more to add? >> no. he definitely did protest he wasn't influenced by politics at all, but it's hard to believe that, based on the record. >> we talked about the fact this court opened in 1935, this beautiful building, and i'm wondering, you've spent a lot of time in that courtroom as solicitor-general. is the courtroom that he operated in as chief justice essentially the same today? >> you know, there are a couple of minor differences. there have been changes in the size of the -- the shape of the bench from time to time over the time period, but it's remarkably similar to the courtroom over which he would have presided. >> we also have a historic

photograph that's from the supreme court historic society. it was somewhat illicitly taken. it's a photograph of inside the courtroom while the court is in session with chief justice hughes presiding, and we're going to show that to you as well. look at that from the court in session. you don't see that very often. >> you sure don't. >> we didn't mention in his biography he was a private practice lawyer much sought after and argued 50 cases before the court. my question is, having had that experience, what was oral argument like in his court? >> it's really, i think, a very good point, and it's something that i think is very similar to the situation we have now with

chief justice roberts. we have somebody in chief justice roberts who argued nearly 40 cases when he was -- before he came onto the bench. chief justice hughes had him beat, had 50 arguments in his private practice. a very lucrative private practice, and that's part of, i think, the point made about the sacrifices that he made for public service. he comes to the court as somebody who not only has appreciation for the job of the court, because he's previously served as an associate justice, but he has some sympathy and some understanding of the role of counsel as well. i think he's somebody who would be certainly willing to ask questions of counsel but had a real appreciation that counsel had prepared for the argument and had points they wanted to make and was also ready and willing to listen to counsel in argument as well. >> pittsburgh, this is tim. welcome to the conversation, tim. >> caller: thank you. i have a question for your guests about the circumstances of justice hughes' ascending to

the court as chief justice in 1930. i don't know if this story is true, so i hope your guests can confirm it. that the conventional wisdom after taft had died was that charles evans hughes would not agree to serve as chief justice, because doing so would mean that his son would have to resign as solicitor-general and then to everyone's surprise charles evans hughes sr. decided to take the job. his son had to resign as solicitor-general. >> you probably know some of the history of your predecessors in the solicitor-general position. what can you tell us? >> i have heard the story, and i do not know whether it's true. i've heard different versions of this story, and you may have a

perspective as to the truth of it. i will say this, though. which is to say i think if somebody, you know -- if the president really thought -- president hoover really thought charles evans hughes would not take the job and was not interested in being chief justice, that seems like a naive assumption. hughes had an interest in the chief justice job going way back. when he was first put on the court as an associate justice, he was appointed with some understanding. there's a letter to this effect. that he may be elevated very early when there was an opening at that point, and he wasn't. he was passed over for chief justice white. of course, president taft was the one that passed him over, and there's some suspicion that president taft might have had an eye on the chief justice job that he ultimately got. so it was actually kind of for favorably disposed the older justice white to that position rather than the young robust then justice hughes. so i've definitely heard the story. it certainly had to be a difficult moment around the family dinner table, since there's no question that chief justice hughes accepting the job meant that his son had to give up the solicitor-general job, which is a very plum job. but it's naive to think he was really going to turn it down.

>> i think some people did think so at the time, but they were probably mislead in various ways. just one addendum about the fact that he may have had had aspirations for the chief justice job earlier. there was some possibility he would be appointed as chief justice rather than as an associate justice when he was first appointed to the court. in fact, his being passed over for chief justice might have been one of the reasons he was presidential nomination than not, because he ultimately aspired to the chief justiceship. >> next telephone call from columbus, ohio. this is mark. hello, mark. >> caller: one thing i wanted to talk about is did he have a problem with the supreme court judges to stay until their 80 or 90 years old, because i think they're way out of touch with the american people. there's a whole lot of things that goes on where they have been in different types of groups like the kkk and stuff

like that, and they still had the same beliefs than what everybody else has in this country. they ought to be appointed by different presidents, we ought to be able to vote them in. i think it would be a little more fair than the way they are right now and it would be more a part of this country than just thinking they're gods or something, you know. >> mark, thanks for your question. he talks about supreme court justices not knowing much about the rest of us in society, being out of touch. i'd like to hear from both of you about this.

>> i think actually this is part of what motivated fdr's court-packing plan. part of what he was saying is some of the older justices had ant toe indicated notions about society and they were out of touch, and that's why all of the justices took offense at his plan. >> i think that's right. those are ideas that maybe we need a retirement age and term limits and maybe we need some way of either making the justices more responsive or either limiting the length in which they serve. it's interesting. these are topics that then attorney hughes addresses in his book about the supreme court, and he talks about the various pros and cons and he's certainly cognizant that there can be difficulties, sometimes justices stay on longer than maybe they should. he concludes anyways at the end of the day the current system we have is the best system you could have when it comes to things like vindicating people's individual rights, that it's a virtue and not a vice that the justices are somewhat removed from everyday politics. >> inside this supreme court there are two very large coverage rooms, the east and west conference rooms used often for public events, and there are

portraits of each of the chief justices who have served. we're going to show you the portrait of charles evans hughes here inside the court. as we look at that, i would like bernie to talk about the most significant opinions he authored. >> he did author some very significant opinions. one opinion that is underdiscussed is against alabama. this is an opinion he issued early on when he was an associate justice and it involved striking down a peonage law. even though slavery was abolished, under the 13th amendment it wasn't clear whether there could be labor required for debt. he struck down this law that had allowed for peonage and said it wasn't relevant the party involved was african-american, but instead that anyone shouldn't be subjected to this

requirement of labor for debt. that was one important decision. he had a lot of important decisions he authored during his time as chief justice. among them were decisions on both sides of the spectrum in terms of striking down economic legislation or upholding it. one case i think is especially crucial because it signaled his willingness to understand the flexibility that was required by economic legislation pretty early on in his term was the case of home building and loan association against blazedell. this was a case involving a minnesota mortgage moratorium act, where the time for repayment of mortgages was extended, and basically the claim was that this violated the state's responsibility not to impair the obligations of contract. what chief justice hughes said

in this case was basically that contracts have to be understood within the context of the public interest. so one of the themes he can kept coming back to was the way in which individual rights had to be maintained, but that had to be within the context of a protection of the public interest more generally. >> do you have anything you'd like to add? >> i think those are great opinions to highlight. i think the great thing is, he was the chief justice for a number of years. he certainly wrote more than his fair share of the opinions. so they're definitely opinions we could point to. most obviously the west coast hotel and the laughlin steel

cases are the ones that are essentially the pivot points for the switch in time. so those are certainly very important opinions. but i also think that there are some, what i would describe more as civil liberties opinions that he wrote, near against minnesota, a very important case that is really one of the very first important first amendment cases as part of the courts. now it's hard to imagine the supreme court of the united states without the first amendment. it's an important part of their docket. but near against minnesota is one of the building blocks for the first amendment free speech jurisprudence. and the assembly, and problems with laws that try to target people for being members of unpopular groups, and the court has kind of waxed and waned in many respects. i think the dejong decision he wrote is ahead of its times. >> we have another call. lon is on the air. >> caller: i would like to ask your panelists, with both charles evans hughes and fdr

being a part of the new york aristocratic elite, both were progressive governors. one took the path of the highest elected office, the other went the judicial route. what kind of rapport was there between them, and i was just wondering, behind closed doors, if there's any evidence of any cordiality, or was fdr regarded by hughes as a traitor to his class? also, i was just thinking of this while i was listening to your discussion. was there a point at which hughes realized that even though he was an elected governor, that he realized from his aristocratic background, he couldn't aspire to running for president? even though perhaps he wanted to be president. and i'm thinking of george nathaniel curzon, the last vice roy of india, who had the ability to be prime minister,

but because he was from that aristocratic class, he didn't have hope of holding that office. those two questions and i'll take your answer off the air. >> thanks. the relationship between fdr and charles evans hughes. can you speak to it? >> hughes swore in fdr on several occasions. so there was an amity between them. but the various tensions over the relation between the court and president at that point in time, it didn't really lead to a very amicable friendship between the two men. and also, hughes himself was somewhat reserved in terms of social life, within d.c. he and his wife only would entertain, or agree to attend dinner parties on saturday night because he felt that it would contravene his judicial practice if he went out any other time. so he wasn't as much as a figure in the washington social scene as one might imagine. >> the only thing i would add, too, he wasn't really from the same aristocratic roots as roosevelt. his upbringing was exceptional from an education standpoint. i think both his parents were really remarkable individuals,

but i don't think it was a youth of great luxury, and great wealth. i think most of the wealth he accomplished over his career, was really through his own law practice and his own endeavors. i think there were differences in personalitywise and backgroundwise as well. >> next call from stockton, california. carol, go ahead please. >> caller: hi, stockton. >> i thought so. go ahead. >> caller: supreme court justice hughes was he on the -- still the chief justice in 1948? or did he retire before his death in 1948? which would have made him around 85 years old at the time. >> that's right. >> thank you very much.

you've jumped into the last part of his life but when did he retire from the court? 1941? >> exactly. and he stepped down when he still had a few years left and that was not unintentional. his time on the court, it seems some justices get to the end of their time and have difficult issues about when they should leave. when he first came to the court, he was close when he first came with justice holmes and when he came back as chief justice, even though he had been away for some 20 years, justice holmes was still on the bench. one of the things that he had to do was eventually deliver the news to justice holmes that his colleagues on the court had decided that it might be time for justice holmes to move on. that was one of the most difficult things had he to do as chief justice, especially because of the closeness between the two men.

>> what was his relationship like with grant rice? >> i think that he objected to a lot of hughes philosophy and was much more liberal than he was but respected him as an intellect. >> you have described his formidable intellect. would you want to argue a case in front of his court? >> i think it would be fascinating. i think the four horse men, in

particular, had difficult personalities from the bench. i'm not sure it would be all roses. but i think it would be a remarkable experience and obviously you're talking about not just the opportunity to argue in front of chief justice hughes but also justice alliance. >> today, there are 8,000 petitions to have cases heard. they hear about 1 out of 100. what was the court load like then? >> the petitions were much lower. when roosevelt proposed the scheme, there had been 890 petitions in the prior year and only 100 and something had been granted. that was one of his grounds for complaint against the court that

they didn't have enough energy to hear the cases. now a greater disproportion between the number of cases that are -- petitions and the number granted. >> oral argument generally an hour today. were they at that time? >> i think they were still typically more constrained. the early days of the court, arguments would go on for days. by the time of chief justice hughes, the arguments were more limited. i also think that just to follow up on the very good point that was made, i think one of the stories of the supreme court as it's developed over history is more and more of its docket has become discretionary. at the time that chief justice hughes was on the court, one of the things he did was he moved the court more in the direction of having greater discretion over which cases to take. and initially that was a source of at least potential controversy that they were exercising their discretion not to hear some cases. hours, by today's numbers it

seems quaint. now the court literally only hearings one in 100 cases that somebody would like them to hear. >> we have a half hour left to go in our two-hour look at the contender. we're featuring this week charles evans hughes, the republican nominee for president in 1916. unsuccessful in his quest, although it was a close election against woodrow wilson who was vying for his second term. and then charles evans hughes went on to serve as chief justice his second term on the supreme court. and was very much at the center of things during fdr's court packing scheme. indianola, mississippi. anita, hello, you're on the air. >> caller: hi. to the professor, i hope you have a healthy and happy baby, and i love that you all try to catch it every friday night. my question is, hughes, justice hughes sounded like a man who was for progression. and i hear you wax and wane about how he wanted the blacks stood up for. i was curious what you would think about women stepping forward and them being on the court now and what he would think about the wrongdoings

going on in the court today. >> i think that's an interesting question about his attitude toward women. i mean, so we heard earlier that he was in favor of female suffrage much earlier than a lot of other people. i think his attitude about women was somewhat ambiguous. so as governor of new york actually, he was an advocate for more progressive legislation than he was later. some people have argued he sort of had to turn more toward the right later in his career. among the kinds of legislation he was interested in at that point was to protect women and children laborers. but some opposed those kinds of measures because they thought that they were paternalistic. and even in his later time on the court and as chief justice in the west coast hotel case, he

in a sense used a somewhat paternalistic logic about protecting women against unfair labor practices. so not just protecting any laborer but that women might need some protection. so -- so on the one hand, he was in favor of allowing women more autonomy. on the other hand, he had a somewhat paternalistic viewpoint. >> columbia, tennessee. this is bud as we discuss charles evans hughes. >> caller: hello, and thank you for a wonderful program. i would like to know the opinion of your panelists as to what you believe charles evans hughes might make politically and judicially of what's going on wall street right now. >> well, can you project? >> well, i mean, everybody's got their own perspective on what's going on at wall street right now. i think that charles evans hughes was in some respects one of the great early reformers. and if you think about the trajectory of his career, he

didn't seek out public service, you know, for sort of its own sake or as something he really wanted elective office. he came to public service through his law practice and an opportunity to investigate industries where there was a lot of corruption. i think this was something that was a hallmark of his career. i think even in his presidential run it's probably consistent with the idea that he wasn't necessarily the world's best back-slapper or knew how to build alliances with people. i think he was focused on getting rid of corruption and not caring that a few sacred cows got slaughtered in the process. >> you mentioned that his was one of the first controversial appointments as the chief justice. i read that both sides were concerned that he was going to be too pro business. >> yes, this was a very something and paradoxical concern given his -- both his earlier term on the court and also his time as governor.

as governor -- and i think he was very reform-minded. i think of him sometimes as combining teddy roosevelt's reform-mindedness seemed to have an early career as a reformer. people were concerned that his time as a private attorney and his time in private practice had led him into pro-business alliances that would make him disposed to regulate companies anymore. i think the main issue was the time he spent in private practice, although i think that that concern was not warranted given his earlier career. >> going to take a call from toledo, and then we have a clip about charles evans hughes and race. toledo, tony, you're on the air. >> caller: hello. thanks for taking my call. this particular question may be most properly directed toward professor clement of the georgetown university law school. professor, sir, how do you feel

mr. hughes would have responded to unelected officials on an international organizational scale such as the rockefeller-funded united nations being able to dictate international law as opposed to an elected official who would use the congress to pass particular laws? >> thank you. >> that's a great question. it's one where i think that the chief justice hughes would have i think very kind of nuanced views and not something where you'd say, oh, boy, he'd really be hostile to the international organizations because, of course, this is somebody who came to the chief justiceship after serving on the international court in hague. so he's been sort of an internationalist, if you will. and in his writings, he has been less critical of the idea that international law is our law. in fact, in his book he specifically says international law is our law. on the other hand, i think he would ultimately say, though, that our own elected officials have the ultimate say over what the scope of our laws are, and i think he would have had a few that congress had quite a wide scope to embrace international

law principles. but if congress wanted to say that certainly principles of international law didn't apply in the united states, then that would be the last word. >> can i just -- >> sure. >> i think that's exactly right. he says that congress has the last word. that international law can fill in the gaps in certain respects. but i also think he was kind of ahead of his time in promoting u.s. involvement in the permanent court of international just. he was not only a judge on that court but also advocated the u.s. assuming -- adopting jurisdiction or be under the jurisdiction of the permanent court. >> we've had a few callers who have asked about charles evans hughes and race. we'll return to the hughes, hubbard, and reed law firm, the law firm still existing in new new city and hughes tells in his

au autobiography. >> we've tried to select things which reflect important periods or stages in justice hughes' life. we've collected a number of different things including original books that just hughes authored. most notably, the autobiography which we find to be especially interesting. my favorite story in here is one that justice hughes tells of a visit that he scheduled when he was the president of the baptist society in new york city. he asked booker t. washington, the notable civil rights activist at that time and religious person himself, to come and speak to the assembly. and when booker t. washington and his wife arrived, justice hughes escorted mr. washington and his wife to his own table and sat him there which at that time, unfortunately, was a controversial thing to do. and justice hughes took advantage of that to speak to the assembly about the important of diversity and tolerance. he was very disappointed that a group of religious people would themselves be intolerant to having booker t. washington at

his table. >> we have about 22 minutes left to go in our two-hour look at the life and legacy of charles evans hughes, the contender, a man who changed history. we brought back one of our first guests, david petrusia, joining us on the plaza after the supreme court. one aspect we haven't spent time on and we should is his role as secretary of state in the pivotal post-world war i years. can you tell us about what contributions he made in that role? >> yes, absolutely. he's regarded not only as one of the great chief justices, he's regarded as one of the great secretaries of state. when he leaves, he's regarded as one of the top three. john quincy adams, secretary seward as we mentioned before, and himself. what he does is he inherits a great mess where because of the failure of the league of nations and talking about him and international affairs and international law, he was for

the league of nations, for the united states of america to enter the league. but he was not about to cede sovereignty to the league of nations. specifically he was opposed to article ten of the league of nations which committed the united states basically to go war if the league decided we were going to defend boundaries, say of the british empire in india, ireland, or in the mess of the map which had been created in europe after the treaty of versailles. he was opposed to that. he thought that the league could be fixed. he planned to submit a clean bill sort of treaty which could get through the senate when it became secretary of state. unfortunately it was impossible. warren harding saw this quicker than they did. hughes recognized the truth of that, that it was really a fool's errand to go back there. the senate was not going to approve that. he moves on from that. he stays. he thought about resigning.

he stays. he has really -- he pioneers an international disarmament and a groundbreaking navy treaty which caps the ratio of ten, ten, and six, for the united states, the united kingdom, and japan. scraps a lot of heavy tonnage battleships. and this is a good deal for the united states because with our congress we were not about to spend the money on the military. we would have lost ground to japan in that decade. also he moves on to other treaties in the far east. he gets japan to give the problems of shantung back to china, a major accomplishment. it's a things people wouldn't believe. going into that decade, the united kingdom, britain, was united in treaty, that is if they were attacked or the other party was attacked, they would go to war. the other party was with japan. and there was a fear actually in the united states that if we got embroiled in a controversy with japan, we might have to go to

war with britain on that. he broke that treaty very smoothly, a for-power pac. one thing he was not successful in was the immigration treaty with japan which was in 1924 and was the japanese exclusion act. he tried quite hard to get that ameliorated. he was not able to do that. the senate was a great problem to him in foreign affairs. it would be a toss-up between that and france. >> next telephone call with our three guests. greensboro, north carolina, and charlie. you're on the air. >> caller: wonderful series, and thank goodness for c-span. who was the person in the 1916 election on a plan side that ran against hughes? i had heard that had the other person been the nominee they would have beaten wilson. >> am i supposed to take that one? >> yes. >> really the contenders were

senator fairbanks, who had been a vice president under president theodore roosevelt. eleanor root was the outright conservative candidate. i would hesitate to say that any number, any one of those would have run a better race than hughes. i think that really the deck was kind of stacked -- it being so close, if you change any one thing, if maybe you don't have that railroad stripe which impacted the voting in ohio as much as hiram johnson did in california, you just don't know. i don't know if you could say it was any one stronger candidate. if he had been the candidate -- if he had been so strong, he would have won the nomination. >> for all three of our guests, and we'll go one at a time and in between calls. it's time to wrap this conversation up and think about

charles evans hughes' legacy. how the world might have been different if he hadn't been here, what our country might have been like if he hadn't served. i'm going to take a call, and i'm going to start with you. i'll give you a chance to think about that. puerto rico, this is gerald. >> caller: yes, good evening. i would like to ask the panelists to please explain why the hughes court decided to disregard the judicial precedence, specifically the ruling in schechter and carter in order to recognize for the first time a fundamental right to organize unions in the case of national labor relations board versus jones and loughlin steel corporation. could you harmonize justice hughes' judicial reasoning? >> thank you very much.

>> i'll give it a try. i think there is a way to reconcile those opinions. another caller pointed this out earlier, but it's easy to think about these decisions on both sides of the famous switch in time as being 5-4 one way and all of a sudden 5-4 the other. the story is much more complicated than that. and schecter-poultry, it leaves lawyers scratching their head. the birth of what's called the nondelegation doctrine. from time to time, lawyers still try fit cases into the nondelegation option because schecter-poultry is still on the books. that was different from the wagner act, the nlra comes before the court. what i think is precedent setting and does break from the prior decisions in that decision is really the court in the previous decisions had distinguisd commerce from

production or other form of economic activity. and it's something that i think had always bedeviled the court. these were difficult distinctions to draw. if you look at that pre-1937 commerce clause juris prudence, did require thin, difficult distinctions. so i do think in that sense those decisions were not so satisfying that they were decisions that were not that easy. i mean, i think the court essentially ultimately became persuaded that that way of looking at the commerce clause wouldn't work. >> first shot at the legacy question goes to bernadette wyler. >> basically the hughes court wound up creating the modern commerce power or allowing for the commerce power to be construed broadly. and so much of the regulatory system that we're under right now or that we can enjoy really derives from congress' power under the commerce clause.

so i think that that's one of the things that hughes shepherded the court through a very difficult time and allowed for this outcome to emerge where the commerce power could sort of be much more -- much more expansive than previously. >> back to calls. this time, philadelphia, charles. hello, charles. >> caller: hi. professor clement, i want to thank you for your record of public service. the question i wanted to ask was about chief just hughes' attitude toward oral arguments. did he believe that oral argument should be like they are today, largely focused on questions, or did he have another attitude toward that? >> thank you very much. paul clement? >> thank you. he had a more balanced view in the sense that i think he understood the virtues of asking questions and also the virtues of having lawyers have an ample

opportunity to explain their positions. i think in a sense we've moved to a different place historically where now supreme court argument is dominated by the questions. it's funny, at that time justices and in his book, it was almost like they felt a need to explain why it was appropriate for them to ask questions at all. i think some lawyers had the idea that oral argument of their time, and they got to give this nice prose and share it with the justices. i think he was of the view that it was important for the justices to have an opportunity to ask questions, and it was good for the lawyer to have an understanding of what was bothering the justices about their side of the case. >> fred in washington, d.c. welcome to our discussion. fred, you there? >> caller: yes. >> your question? >> caller: i would like to know if any of the members of the panel can make a comment about

secular exam at that time, about the justice view it secular exam separation of church and state, or at that time any of their colleagues there for you? >> thank you very much. >> caller: if any of the members of the panel can answer this. >> all right. you want to take that? >> sure. so this was a moment in time when the notion of wall of separation was actually coming into common parlance or becoming much more prevalent. the hughes court was important more liberally. both the free exercise clause and first establishment clause of the first amendment were incorporated against the state through the due process clause of the 14th amendment. they were held to apply to state action. so that allowed for a lot more suits based on violation of religious liberty than had previously occurred.

>> david, how about if you take your crack at the question of charles evans hughes' legacy. >> i think it's important of how he stopped the court packing decisions changed. how he put the health of the republican party back together again. i think his legacy is one of service, of a man who time after time leaves his normal stage of life to serve his country and does it with remarkable intelligence and integrity. and at a time of so much fractiousness in our nation, i think it's good to look back on positive examples, and to take hope from them. >> i read in one biographer he felt the constant tug between the legal and political spheres. did you have that same sense of him? >> yes. but i think -- one of the -- i think after he left the secretary of stateship, somebody

said of him that he was our first citizen. and i think that is such a wonderful thing to say. and certainly such a true thing to say about him. but again, he made amazing sacrifices, amazing sacrifices. when he left the state department, he was able to earn a peak of $400,000 a year. some of the jobs he had prior to that were in the range of $12,000. so part of the fact of leaving he knew he had to take care of his family. but in between all those times, and even when he was off the court, if you take a look at all the organizations he was involved in, including the foundation of the national conference of christians and jews to advocate tolerance in the mid-1920s, at a time when often it was in short supply, the man was a powerhouse, tireless, whether he was in public service officially or not, he was always doing the

public's work. >> and we have ten minutes left in our program. we have time for just a couple more calls. but let me ask the same question of you, legacy. >> i would say there's really two aspects of it obviously i'm approaching this from the legal perspective. one is what's already been touched on. i think what makes the legacy is so interesting is we're still dealing with this issue. chief justice hughes rejected what i would call the categorical approach to the commerce clause. but even he was very quick to add that the commerce clause was not unlimited. that it was a limited power. and the framers had enumerated the various powers in the constitution, including the commerce clause, and none of them gave the federal government an absolute plenary power. and so he laid out the basic framework that we're still wrestling with, and we still have this idea that the commerce clause is broad, but it's not unlimited.

and where those limits are is something we continue to struggle with. but that's a part of his legacy. the other thing i would really emphasize is the legacy of judicial independence. because i do think the court packing idea was probably the single greatest challenge to judicial independence. at least, you know, in the 20th century. and i think the way that he sort of fought that off, i think is something that's -- like i said, i don't think we'll see another court packing effort. i think that's a great legacy. i would just add to that that in his book about the supreme court, he addressed what he thought were the three worst supreme court decisions that the court had made up to that point, what he called self-inflicted wounds. and one of them was a decision in the 1870s, called the legal tender decision, and what is interesting about it is it's a case where the court first struck down a statute, and then after a change in its membership, ended up upholding the statute. in commenting on that, he said it was really the court's fault

for the way they handled it. he specifically pointed out it wasn't president grant's fault and uses the word court packing. he said nobody would accuse president grant of packing the court. this is something that was in the back of his mind, even before he was a chief justice. he seized this threat to the court, a real threat and fends it off. that is a real worthy legacy. >> from massachusetts, this is greg. >> caller: hello? >> hi, greg, you're on. >> caller: i'm curious, when does chief justice hughes get done being on the court? >> 1941, greg. what's your follow-up? >> caller: so was he the chief justice when komatsu versus komatsu was written? >> no, he was not. he was off the court by that point. >> caller: i was just curious. >> no, he's off the court by that point. >> david pietrusza, let's have, have you explain about his final years.

he resigns from the court, as we just said, in 1941, and lives until the next five or six years, dies at the age of 86. what were his final years like? >> well, he's very old when he goes on the court and he's very old when he gets off the court. two years before he gets off the court he gets a real scare. it was almost like a stroke. in fact, it's a duodenal ulcer. but he recovers. when he leaves the court in '41, he's fairly vigorous. what does happen, however, he remains -- he doesn't return to new york. his children are up there. but he remains in washington, d.c. he had been -- you know, his marriage was really a very close one, very wonderful. but at this point he decided, i'm going to make up for lost time, a time which i had been away from my wife all this time. but she takes ill fairly quickly. i think by the end of the war,

she has passed away. and it's a very tragic time for him. it's one of the few times which is ever recorded him of losing control of his emotions when she has passed. and then it is so painful for him. but his health continues fairly strongly, until 1948. he goes up, i believe to cape cod, and there he takes a sudden turn for the worse, passes away. he had a fear, i think it was to be like -- not to be like justice cardozo, who had been helpless at the end of his life. and in this -- his wish was granted. his time of infirmity was really a matter of just days, if not hours. so he passed away with all the dignity with which he had lived. >> we have just about four minutes left. we talked about the fact that he swore in fdr three times, even though they had this epic battle over court packing. we have this clip of him swearing in franklin delano roosevelt. >> do you, franklin delano

roosevelt, swear you will faithfully execute the office of the president of the united states to the best of your ability, preserve, protect and defend the constitution of the united states, so help you god? >> i, franklin delano roosevelt, do solemnly swear, that i will faithfully execute the office of the president of the united states, and will to the best of my ability preserve, protect, and defend the constitution of the united states, so help me god. >> charles evans hughes, swearing in franklin delano roosevelt. and his legacy, as chief justice, especially during the court packing era, something we've discussed during this edition of the contenders. we have just a couple of minutes left. i'd like to go back where i

started, paul, and that is to talk about the 1916 election. if he had won that, and woodrow wilson had not won a second term, specifically there, how would the world have been different? >> well, i think, you know, that's a very consequential question in the sense that it's always hard to try to reconstruct what would have been so different if some critical factor had not taken place. i mean, wilson obviously was a president who led us through the entry into world war i. and moved us forward. so i think he's somebody that history regards very well. i have to say personally, though, understanding the character of person, that charles evans hughes was, it's hard for me to think that we would be poorly served even during that critical time by somebody who had done so

exceptionally well in so many different ways. and certainly as his later service of secretary of state shows, he is somebody who i think would have been very, very comfortable in leading us in our foreign affairs. >> david pietrusza, what are your thoughts on that in regard to entering into world war i? >> i think in world war i a change would have been made. because what we're talking about is the peace process. woodrow wilson botches that spectacularly. we see how hughes handles the treaty-making process when he's secretary of state. he brings are parties in. he gets the treaty in and submits it to the senate, passed almost overwhelmingly. also what i neglected to mention in his post-chief justiceship years is, he's called in to consult on the structure for the new united nations. at this advanced age. and he strikes some things regarding the structure of the security council, puts some things in. and makes it far more workable. he's a very practical guy. the and he had been interested in world justice, and rule of law internationally from an

early point. if he had proposed a league of nations, there's a good chance it would have been approved by the united states of america. >> other than your own book, if people are interested in hearing more, what's one of the best books on this era that you can recommend? >> well, certainly on hughes, the merlo pusey biography is really a terrific, terrific book. that's the book if you want to know an awful lot about mr. hughes. >> paul clement, you brought a book of his letters i understand. >> yes, it's this book that he wrote, actually a collection of six different lectures that he gave at columbia university. and as i say, it's really a unique insight. because here's ruminations about the supreme court of the united states from somebody who had been an associate justice and would soon be the chief justice of the united states. but it's a candid look on what at this point a lawyer really thinks about the supreme court. >> still highly readable today? >> very highly readable. and it's fascinating, actually, how contemporary a lot of the

discussion is. >> last question for you, very quickly is, when first year law students come in and you teach them about this era, what's the one thing you want them to know about it? >> i want them to know about the switch in time. it may have been political or may not have been, and also what the consequences were. >> i want to say thank you to our three guests who have been with us tonight on our charles evans hughes program from outside the united states supreme court. we appreciate your time with us as we learn more about this period of american history. people who sought the presidency, and even though that bid was not successful, still had an important impact on american history. we're going to close, as we started, with archival footage from the 1916 campaign. ♪