. >> it is what we claim we want in the presidential candidates and president. >> and man named charles evan bayh -- charles evans hughes. woodrow wilson thought he was

beaten. >> american history goes on in several different directions. what is he doing for foreign policy? he is the one you could write novels about. >> he was on the supreme court. he left the supreme court. he ran for president. then he went back to the supreme court. when of the finest minds on the court's. >> why use? >> andrew jackson said that "he looks like god and talks like god." >> charles evans hughes -- the republican presidential nominee soon after the national convention.

tonight, we looked at the life and legacy of charles evans hughes who was a two-term governor, secretary of state, and twice a supreme court justice. he was

of the senior partners to talk a little bit about charles evans hughes and his support for women voting. >> also very proud and the original edition of the independent weekly magazine that came out the week after justice used to see the republican nomination for the presidency. -- justice hughes got the republican nomination for the presidency. mrs. hughes, she is on here in support of women's suffrage, which she supported as well. with the things we were not aware of -- the republican party platform in 1916 was that each state would have the right to determine whether or not women would have the right to vote. does this hughes -- justice

hughes said he would go beyond the republican party platform and support the susan b. anthony and in sense of

him. he was considered quite a great orator. let's listen to what he sounded like. >> bigotry and 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.>> yes.

>> another thing we want to highlight was the importance of wasis used importancejus -- the importance of mrs. hughes in his life. she was the daughter of walter carter, the senior partner in the hughes law firm. he met her at an office holiday party. issue was a very educated woman, influential in his life. he also had three daughters who together with mrs. hughes, i

introducing us to each of the members of the supreme court in 1937. >> associate justice sutherland. it became a senator from utah.

the only supreme court catholic. a democrat who supported president harding. from wyoming -- 78. 56 years on the bench. james reynolds of tennessee, 75. confirmed bachelor. has voted against every new deal measure. benjamin nathan -- benjamin nathan cardozo, a 67 -- 67, appointed by president hoover. arlen of new york, a former dean of the university law school.

justice brandeis of kentucky. wilson dared not appoint him attorney general, but did reported him to the court. -- the did appoint him to the core. and justice roberts. at 61, the youngest justice. long a conservative. and charles evans hughes, 75. 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. it is his second such appeal within six days. he tells the people that his plan would protect them.

>> those opposing the plan have sots to so prejudice and fear by saying i am seeking to pack the supreme court. what did they mean by "packing the supreme court"? let me answer this question with a bluntness that will and all honest misunderstanding of my purpose. is by that phrase it is charged -- if by that phrase is charged i wish to place on the bench spineless puppets to disregard the law and decide specific cases as i wish them to be decided, i make this answer. that no president's bid for his office would appoint and no senate of honorable men bid for their office would confirm that kind of appointee to the supreme

court of the united states. we what a supreme court that will do justice under the constitution and not over it. in our courts, we want a government of laws and not of men. >> the court lacking -- the court packing plan was a very serious threat. it was proposed by an immensely popular presidents. as fdr put it "the people are with me." hughes proceeded cautiously, but with determination. he demolished fdr's efficiency argument. he showed that the court was keeping up with this work. hughes explain that adding more justices would make the court

far less efficient. "there would be more judges to hear, more judges to confer, more judges to been -- to discuss, more judges to be convinced and to decide." hughes chose not to directly criticize fdr, but to expose the effort for what it

test. test. test.

he didn't live to see it. and charles evan hughes, first chief justice to move in here. i read it was troefrcontroversi the time and not all of the justices wanted to come and work in here. >> and that's partially because you're talking about justices, who are sometimes traditionalists. >> and the depression. >> the depression, optics of moving into this beautiful temple to have its own kind of political dimension. but part of it was, it was a break with tradition.

it was a break that was long overdue. >> the pediment, and i think over the next call, we might be able to get a shot of that so you can see how the architects of this building depicted him. we're going to listen to mt. joy, pennsylvania. this is harry. >> caller: yes, i used to study that supreme court and in the 1935 decisions in some of the medial cases, i think three major laws were struck down by unanimous supreme court decisions. they were unanimous. that included the liberals. and from what i understand, when they made the court packing speech, lewis brandeis was offended. i worked for roberts and from what i understand the coats in 1987 were taken before -- secret

chambers, in 1936 the votes were taken for the cases to decide in 1937, that's from memorandum. but thank you for letting me be on the show. >> thank you very much. that caller provided a segue to get into the whole court-packing era. set the stage for us quick. >> okay, what happened to -- and i want to get back to the caller's question because it's at the crux of court-packing scheme. what happened is he became frustrated with a lot of the new deal measures were being struck down by this supreme court and sometimes by a unanimous court. and one -- >> on what grounds? >> on the grounds first of all, on the grounds exceeding congress's powers under the commerce clause. the commerce clause is actually 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 was basically not as expansive in its interpretation of what the power could do for the congress and thought the state's autonomy was being infringed upon by congressional enactments. another ground for inbal dags was under substantive due process or liberty of contrast, which was read into the fourth or fifth amendment. the new deal of the court, the hughes courts has striking down a lot of new deal legislation. so fdr in frustration after his re-election basically proposed a plan whereby the court's membership would be increased in 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. 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 the court-packing scheme was promoted or not. and one argument is that once roosevelt won the election, the court really felt there would be a lot of pressure to uphold the new-deal legislation and it couldn't be striking down many laws. one is the court-packing scheme itself was almost irrelevant or wasn't the real catalyst that roberts felt he had to change his vote simply because of roosevelt's re-election and this great democratic consensus behind us. >> 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. and i think it helps to kind of understand the stage completely, which is think about fdr at this point.

he's just been re-elected for his second term. he's dealing with the great depression. no's worried about whether it's the great recession. this is the great depression. he's dealing with it legislatively, passing legislation and it's getting struck down by the court. and he's also in his second term. by the time he's down with his fourth term, he would 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 he hasn't put anybody on the court. so he's very frustrated with the court. he's very frustrated with the fact they're striking legislation. he's frustrated he feels they're out of touch with the country. and that frustration of what the court is doing, with theage of some of the judges, all of that boils over into the court-packing plan. and i think it's very

interesting to debate whether, as you say, the plan was really necessary, whether that was really what explains the court's change in approach in some of these important areas but it is, i think, fair to say it is a bit of a black eye to fdr's historical legacy he let his frustrations boil over and made his proposal. >> let's take a call from salem, oregon. this is kirk watching us out there. >> caller: yes, good afternoon. it is still afternoon here. i appreciate you taking my call. it is a question, i presume, for professor meyler. i'm accused to know what she might know regarding the personal relationship tie-ins between justice hughes and the william you stewart family from auburn, new york, stewart was lincoln's secretary of state. and also part of the reason i'm calling i have been puzzling for some time back in that era as

the speech by justice hughes was indicating the anti-racist of the community were republicans and that seems to have switched and around the time of woodrow wilson's presidency and when he embrac embraced budde aion. >> that's an interesting question. i'm not that familiar with stewart. ly have to defer to others. but there's 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 retains a fairly uniformed position on race throughout his career where he was in favor of at least greater equality. i'm not sure what except full equality. but against the backdrop of this change that you're pointing out

where previously republicans have been much more in favor of racial equality and the democrats also sort of took on that mantel. >> returning to the court-packing plan, charles evan hughes was how involved in setting the stage for being defeated? >> i think he was integrally involved and as chief justice roberts pointed out, there's a famous missive from the court itself to congress. and as i understand the story, that was something justice brandeis was very much in favor of and suggested and the chief justice was very direct and in the same kind of i think skill set that he brought to bear in investigating the gas companies back in the day. he was also good with numbers. he use the numbers, he looked at the court dockett, its caseload. and as justice roberts indicated took apart a neutral case for

what fdr was proposing and really laid bear the most obvious moifgs for the court-packing plan. >> how common between the court legislature be to sent a missive frrt court to congress? >> it did happen, and i don't know if this was the practice back in the day of chief justice hughes but it's been the practi practice basically every year the state of the chief justice sends over to congress. sometimes it can be poignanted. for a number of years both chief justice rehnquist and chief justice roberts made a point of explaining they're less than happy with the current state of judicial pay. there continues to be these kind of issues between and among the branches but i also think that probably the way that 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 agreement with paul clement but i also want to add two things, one of which is that some people did criticize hughes at the time for essentially issuing an advisory opinion. one part of his letter chief justice roberts referred to the court which importantly was also found by -- or consulted with brandeis about so there was kind of unity among the members of the court about it, one part of the letter said well, hearing cases in a panel system wouldn't actually probably be constitutional and that seems like an advisory opinion. interestingly the book said, paul clement referred to before the supreme court hughes condemned other justices for trying to issue advisory opinions. so there's some controversial about that letter i think. >> next call is from st. louis, missouri. >> caller: thank you very much for taking my call. this is a followup to the

cornell professor's comments orrin roberts prior to the court-packing plan aligned himself more with the four horsemen who are the conservative wing of the court and after the court-packing plan probably oar an roberts was part of the switch in time to save nine. from what i read, orrin roberts would never admit that. do either one of you know why he really did change his voting pattern? >> thank you very much. 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. i think this is one of the reasons i this from an academic standpoint court packing is so interesting as an historical episode, there are a lot of competing theories that are supported at a detailed level. but we don't really know for sure. but if you look at the patterns,

there does seem to be a fork in the road and a change that expands with the court-packing scandal and these cases that emerged at a critical time that go in a different direction. >> any more to add? >> no, he did protest he wasn't influenced by politics at all but it's hard to argue that on the record. >> we talked about the fact this court opened in 1935, this beautiful building. i'm wondering, you spent a lot of time in that courtroom, closer to generals. the courtroom he operated in as chief justice spemly the same today? >> there are a couple minor differences. >> we also have a photograph from the supreme court historical society but it was somewhat illicitly taken, inside

the courtroom with court in session inside the justices presiding. the contract in session. you don't see that very often. >> you sure don't. >> while we're talking about it, we didn't mention in his biography and his years between his first and second service on the court he was a private practice lawyer much sought after and argued some 50 cases before the court. my question is, having had that experience, what was argument like in his court? >> it's really i think a very good point. and it's something very similar to the situation we have now with chief justice roberts. we have somebody in chief justice roberts who argued nearly 40 cases before he came on to the benchth chief justice hughes had him beat. he 50 arguments in his private practice, very lucrative private practice. and that's part of the point that was made about the sacrifices that he made for public service.

but he comes to the court by somebody who not only has preparation of the court and served as justice but sympathy and understanding of the role of counsel as well. he was certainly willing to ask question of counsel but also i think had a real appreciation that counsel had prepared for the argument, they had points that they wanted to make and was also ready and willing to listen to counsel at argument as well. >> pittsburgh, this is tim. welcome to our conversation, tim. >> caller: yes, thank you. i have a question for your guest about the circumstances of justice hughes ascending to the court as chief justice in 1930, and don't know if this story is true so i'm hoping your guest can confirm it. the conventional wisdom after taft died is charles evans hughes would not agree to serve as chief justice because doing

so would mean his son would have to resign as solicitor general. then to everyone's surprise charles evan hughes sr. decided to take the job and his son had to resign as solicitor general. >> well, you probably know some of the history of you're 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 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 -- if president hoover probably 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 on the chief justice job going way back. he was appointed with some

understanding, there's a letter to this effect, he may be elevated very early where there was an opening at that point and he wasn't. he was passed over for chief justice white. president taft is the one who passed him over. and there's suspicion president taft had an eye on the job he go out there was i suppose a favor to appoint older justice white rather than young, robust justice hughes. so i 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. and i think 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 conference rooms, east and west conference rooms that are used for public events, and there are portraits of the east and west

justices that 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 one opinion that i think is under-discussed is bailey 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. >> los angeles is our next caller and 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. 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 personalities and backgroundwise as well. >> next call from stockton, california. carol, go ahead please. >> caller: hi, stockton. >> i thought so. go ahead. >> caller: the question was, supreme court justice hughes was there in -- was he still the chief justice in 1948? or did he retire before his death in 1948, which would have made him about 80 years old. >> thank you very much. we spent a little time, when did he retire from the court?

>> 1941, right. he stepped down when he had a few years left and i think that's something that is not unintentional. he had his time on the court. he had seen some justices get to the end of their time and have difficult issues about when they should leave. he was very close when he first came to the court with justice holmes and when he came back as chief justice, even though he had been away for 20 years, justice holmes was still on the bench. and one of the things he had to do is deliver the news to justice holmes that his colleagues decided it might be time for justice holmes to move on. and i'm sure it was one of the most difficult things justice holmes had to deal with. >> what was his relationship like with brandeis? >> he had a quite amicable relationship with brandeis

personally. one of the indicia of that is he was willing to sign on or support this letter that he wrote against the court-packing deal. i think brandeis objected to a lot of hughes' judicial philosophy and was much more liberal than hughes but at the same time respected him as an intellect and this goes back to a theme that we've come upon a lot, which is to set his formidable intellect and ability to question various litigants and to reason from cases was really admired by all of the other justices. >> i need to ask, you described his formidable intellect. would you if you could time travel want to argue a case in front of his court? >> i think it would be fass flighting. i think some of the other justices on the court, the four horsemen in particular, were difficult personalities from the bench. so i'm not sure it would be all roses.

and not just justice hughes but brandeis and the lions and intellects across that court. >> a couple of mechanic questions, today there are 8,000 petitions for certiorari, petition to hear cases heard. they hear about 80 to 100 cases a year. what was the workload of the court like then? >> it wasn't that many cases they heard then but the petitions for cert were much lower. when roosevelt approved the court packing scheme, there were like 900 complaints and only 800 granted. that was the energy for the court, they were disappointed they didn't have enough. >> oral arguments are generally

an hour today. were they at that time? >> i think they were typically still con trained. the early days of the court, arguments would go on for days but early times they were more limited. and i also think to follow up on a 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 been discretionary. at the time chief justice hughes was on the court, one of the things he did is moved the court more in the direction of having greater discretion over which cases to take and essentially that was a discourse over not hearing cases -- but by today's numbers, it seems quaint. now the court literally only hears 1 in 100 cases somebody would like them to hear. >> we have a half hour left in our two-hour look at "the contenders." we're featuring charles evan hughes, republican nominee for

president in 1916. unsuccessful in his quest, although it was a close election between woodrow wilson, who was vying for his second term. and very much at the center of fdr's court-packing scheme. indianola, mississippi, anita. hi, you're on the air. >> caller: hi, to the professor, i hope you have a healthy and hap happy baby. i love the show. try to catch it every friday night. my question is hughes sounds like a man for 0 progression and i hear you waxing and waning haw he wants the blacks to step forward. i wonder what you think about women stepping forward, them being on the court now and what he would think about the wrongdoings going on the court today. >> so i think that's a really interesting question about his attitude towards women. we heard a little bit earlier he

was in favor of female suffrage, earlier than a lot of people. i think his attitude of women was somewhat ambiguous. some people argued he sort of had to turn more towards the right later in his career but among the kinds of legislation that he was interested in at that point was to protect women and children laborers. but some opposed to kind of measures because they thought they were paternalistic. even in his later time on the court and as chief justice in the westin hotel case, he used paternalistic lodge by protecting women against unfair practices, not just any laborer but women might need special protection. so on the one hand he's innive faer of allowing women more

autonomy but on the other hand had a more maternalistic view point. >> hello e. this , this is buzz. >> caller: hello, and thank you for your program. i would love to know what you believe charles evans hughes would make politically and personally of what's going on, on wall street now. >> can you project? >> everybody's got their own perspective on what's going on at wall street now but i think charles evans hughes was in some respects one of the great early rm roers. if you think about the trajectory of his career, he didn't seek out public service for sort of its own sake or as something he really wanted an elected office. he kind of came to public service through his law practice and through an opportunity to try to investigate industries where there was a lot of corruption. i think this is 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 because i think he was very focused on getting rid of corruption and not caring if that meant a few sacred cows got slaughtered in the process. >> you mentioned his was one of the most he controversial appointments of the chief justice. i reads both sides were concerned he would be too pro business. >> yes. yes, this is very interesting. i think quite right, he's very reform minded. i think of his sometimes combining teddy roosevelt's reform-mindedness with woodrow wilson's reformism. he seemed to have an early career as a reformer. but people were concerned his time as a private attorney and

his time in private practice led him into pro business alliances that would make him indisposed to regulate companies anymore. so i think the main issue was the time he had spent in private practice though that call was not warranted given his early career. >> caller: hello, thank you for taking my call. this question may be most properly directed towards 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 believe the chief justice would have nuanced views and not be hostile to the international organizations. this is somebody who came to the chief justiceship after serving on the international court in the hague. so he's been an internationalist, if you will. in his writings he's been less critical of the idea international law is our law. 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 view that congress had quite a wide scope to embrace international law principles but that if

congress wanted to say certain principles of international law doesn't apply in the united states, that that would be the last word. >> i think that is essentially right. but he was not only a judge on that court but also advocated the u.s. from adopting jurisdiction of a permanent court. >> we've had a few callers who asked about charles evan hughes and race. we will return to charles evan hughes law firm, which still exists in new york city, for a story hughes tells in his autobiography. >> in the charles evan hughes conference center we try to select things that reflect important periods or stages in the justices' life. we collected a number much

things including a number of book that justices authored. most notably, the autobiography. my favorite story in here is justice hughes tells about a visit he scheduled when he was 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, as he escorted mr. washington and his wife to his own table and sat him there, which at that time unfortunately was a very controversial thing to do and justice hughes took advantage of that, to speak to the assembly about the importance of diverse till and tolerance. he was very disappointed a group of religious people themselves would be intolerant to having booker t washington at his table. >> we have about 22 minutes left to go in our look at the life

and legacy of charles evan hughes on "the contenders," a man who changed the course of history. we brought back one of our first guests, david pietrusza, who is still on the steps of the great court. one thing we did not talk about and we should are the pivotal world war i years. can you briefly tell us about what observations he made during that role? >> yes, absolutely. when he leaves, he's one of the top three, john quinney adams, secretary stewart, as mentioned before, and what he does is inherit a great mess because of the great failure of international league of nations and talking about international affairs and international law, he was more the united states of america to enter the league but he was not about to cede sovereignty to the league of nations, specifically opposed to

article x of the league of nations which committed the united states basically to go to war if the league decided we were going to defend boundaries, say, of the british empire in india or ireland or mess of a map created in ukraine after the treaty of versailles. he thought the league could be fixed. he planned to submit a clean bill, sort of treaty which could get through the senate, when he became secretary of state. unfortunately that was impossible. warren harding saw it as maybe quicker than he did but hughes recognized the truth of that, it was really a fool's errand to go back there. but he stays. he thought about resigning. he stays. he pioneers an international zar zarmtment and ground-breaking navy treaty which caps the ratio of 10-10-6 for the united states, united kingdom and

japan. straps a lot of heavy tonnage battle ships. and this is a good deal for the united states because with our congress we were now about to spend the money on the military. we would have lost ground to japan in that decade. he meevs oves on to other areas the far east in japan. and it's a think which people wouldn't really believe but 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 and that other party was with japan. and there was a fear in the united states if we got embroiled in triefrl japan, we might have to go to war with britain on that. he broke that treaty very smoothly, four-power pac. one thing he was not successful in was the immigration treaty

with japan which was in 1924 and japanese execution act. he tried really hard to get that ameliorated but was not able to do that. the senate was a great problem for him in foreign atears. a toss-up between him and france. >> and our next charles is from greensboro, north carolina. charlie, you're on the air. >> caller: thank you. and a wonderful series from c-span. who was the republican ticket to run against hughes? i heard had the other person been the nominee, they would have beaten wilkes. >> well, i'm supposed to take that one? >> yes. >> if i am, really, the contenders that year were senator fairbanks, who had been vice president under theodore

roosevelt, there was senator burton of ohio. el akn i would say any number of those, any one of those would have run a better race than hughes. really the deck was kind of stacked. it being so close, if you change any one thing, if maybe you don't have the railroad strike, which impacted the voting in ohio as much as high rum johnson did in california. but i don't know -- if he had been so strong, woe have won he would be the nation. >> and it's time for us to wrap this up and think about charles evan hughes legacy, how the world might have been different if he had not been here, what our country had been like if he hadn't served. so i will take a call and start

with you so give you a chance to think about that. puerto rico, this is gerald. >> caller: yes, good evening. i would like the panelists to please explain why the hughes court decided to disregard the judicial precedence, specifically the ruling in scheckter 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 laughlin corporation, can you explain justice hughes' reasoning? >> thank you very much. >> sure, i'll give it a try. i think there's 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 then all of a sudden 5-4 the

other. but the story is much more complicated than that. scheckter was an unanimous decision. every member of the court said there's something wrong with the statute at issue there. scheckter-poultry is still on the books. it leaves people scratching their heads. from time to time lawyers try to fit cases into the nondelegation doctrine because it's still on the books. but that's a different doctrine that was issued when the wagner act and nlra comes before the court. i think what is precedent setting and does break from the prior decisions in that decision is really the court in the previous decisions had distinguished commerce from production or other forms of economic activity. and it's something that i think h had always bedevilled the court. very different distinctions to draw. if you look at the pre-1937

clause jurisprudence this categorical approach did require very thin, very difficult continuations. so i do think in that sense those decisions were not so satisfying that they were decisions that were not that easy. i think the court essentially ultimately became persuaded that was of looking at the commerce clause just wouldn't work. >> first shot at the legacy question goes to bernadette meyler. >> i thinks the most important part of hughes' legacy does relate to what paul clement was just talking about. is that basically the hughes court wound up creating the modern commerce power or allowing for the commerce power to be construed broadly. so much of the regulatory system that we're under right now or that we can earn joy really derives from congress's power under the commerce clause. i think that that 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 be so much more -- much more expansive than previously. >> back to calls. this time philadelphia. hello, charles. >> caller: hi. professor clement, i want to thank you for your record of public service. the question i want to ask was about chief justice hughes' attitude towards oral arguments. did he believe oral arguments should be like they are today which are largely focused on questions or did he have another attitude towards that? >> thank you very much. paul clement. >> thank you. he had a more balanced view of oral argument i think in the since he understood the virtue of asking questions and also the virtue of having lawyers have an ample opportunity to explain their positions. i think in a sense we moved to a different place historically where now supreme court

argument, anyways, is dominated by the questions. it's funny at that time, justices and in his book, it was almost like they felt the need to explain why it was appropriate for them to ask questions at all. i think some lawyers had the idea oral argument was there time and they got to give this nice prose to and share it with the justices. i think he was of the view it's important for the justices to have an opportunity 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, are you there? >> caller: yes. >> your question? >> caller: yes, my question is i would like to know if any of the members of the panel can make a comment about secularism at that time about the justice's view about secularism, separation of

church and state or at that time any of their colleagues who are right there with you, members of the panel can answer this. >> thank you very much. you want to take that? >> sure. this was a moment in time when the notion of a wall of separation was actually coming into commons parlance or becoming much more prevalent. also the hughes court was quite important in terms of religious liberty in terms more generally. so under the hughes court, both the free exercise clause and establishment clause of the first amendment were incorporated against the states through the due process clause of the 14th amendment so they were held to apply to state action. so that allowed for a lot more suits based on violation of liberty than had previously occurred. >> david, why don't you take a crack at charles evans hughes legacy. >> i think it's important of how

he stopped the court-packing scheme, how the regulatory nature of the decisions changed, how he helped put the republican party back together again. i think his legacy is one of service of a one of service of a man who, time after time again, leaves his normal state of life to serve his country and does it with remarkable intelligence and integrity. in that time in our nation, i think it's good to look back at positive examples and to take hope from them. >> i read an article that said he looked at both of the spheres. >> i think after he left, someone 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. again, he made amazing sacrifices. when he left the state department, he was able to earn $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 his leaving was simply 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, when often it was in short supply, the man was a powerhouse, tireless. 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. let me ask the same question of you, the legacy. >> i would say there's two aspects of it, and obviously i'm approaching this from more the legal perspective. one is what has already been touched on, the commerce clause juries prudence, and i think what makes that legacy 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 and that it was a limited power and the framers had enumerated the various pow nurse the constitution, and none of them gave the government absolute plenary power. he laid out the framework we're still wrestling with, and it's broad, but not unlimited. that's a real part of his legacy. the other thing that i would

really emphasize is the legacy of judicial independence. because i do think that the court packing idea was probably the single greatest challenge to judicial independence, at least in the 20th century, and i think the way that he sort of fought that off, i think, is something that, like i said, i don't think we'll ever see another court packing effort and 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 paint, what he called self-inflicted wounds. one of them was a decision in the 1870s called the legal tender decision. 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 statue. in commenting on that, he said it was really the court's fault for the way they handled it and he specifically pointed out that it wasn't president grant's fault and he uses the word

"court packing". he says that nobody could accuse president grant of packing the court. this was something in the back of his mind even before he was a chief justice. he sees this threat to the court, a real threat, and he fends it off and i think that is a very worthy legacy. >> this is greg from massachusetts. >> caller: hello? >> hi, greg. you're on. >> caller: i'm just curious, when does chief justice hughes get done being on the court? >> 1941, greg. what's your follow-up? >> caller: was he the chief justice when kamatsu was written? >> no, he was off the court by that point. >> caller: i was just curious. >> he's off the court by that point. >> let's ask, have you explain about his final years. he resign frs 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 sounds almost like a stroke. in fact, it's an ulcer, but he recovers his health. so when he leaves the court in '41, he's actually fairly vigorous. what does happen, however, he doesn't return to new york his children are up there. he remains in washington, d.c. 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, the time which i have 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 of him losing control of his emotions, when

she has passed. and 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 of -- i think it was not to be like justice cardozo, who had been helpless toward the end of his life. and his wish was granted, his time of infirmity was almost a matter of 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 an epic battle over court packing. we have the clip of him swearing in franklin delanor roosevelt. >> you will faithfully execute

the office of 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 do solemnly swear that i will faithfully execute the office of 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 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 a couple of minutes left and i would like to go back where i started, paul, and that's 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. 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 as secretary of state showed, he's somebody who would have, i think, been very, very comfortable in leading us in our foreign affairs. >> david, what are your thoughts

on that with regard into entry into world war i? >> i think the exit from world war i, the change would have been made. because what we are 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 all parties in, he submits to the senate, passed almost overwhelmingly. i neglected to mention in his post chief justiceship, 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 was a very practical guy 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 is one of the best books on this era that you can recommend? >> certainly on hughes, the two-volume biography is really a 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. >> yeah, it's this book he wrote and it's a collection of six different lectures that he gave at columbia university. as i say, it's really a unique insight because there'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 this point a lawyer really thinks about the supreme court. >> still highly readable today? >> very highly readable and it's fascinating 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 tide and the fact that 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 your 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 the grid was not successful, still had an important impact on american history. we're going to close as we start ed with some archival footage from the 1916 campaign. ♪

"the contenders" about the men who ran for the presidency and lost, but changed political history. tonight, four-time governor of new york and the first catholic presidential candidate for a major political party, al smith. "the contenders" this week at 8:00 p.m. eastern on c-span3. >> joe biden and president trump are both on the campaign trail today. the former vice president makes a stop in toledo, ohio, where he's expected to focus on the economy. that's live at 1:15 p.m. eastern. and the president heads to florida for his first public event outside the white house since being