Forgotten Man, The (40 page)

Some of those involved in the story later told it a different way—as a successful lure by Duveen. Sensing that Mellon was ready to give, Duveen had rented the apartment below that of his most important client on Massachusetts Avenue. He told Mellon, “You and I are getting on. We don’t want to run around. I have some beautiful things for you, things you ought to have. I have gathered them specially for you.” He then gave Mellon a key to his own apartment and invited him to visit the paintings when he was away. The biographer Behrman reports that Mellon, as it turns out, did indeed visit—in dressing gown and slippers. Eventually he bought up the art in the apartment.

Both accounts are probably true. Mellon always hesitated before he bought—Duveen’s success with him lay in his ability to tolerate lengthy periods of indecision. The purchase when it finally came was in any case a giant one, outdoing the Hermitage acquisition by far. But Mellon, though fading, was still a formidable bargainer. Duveen had showed Finley a painting of Saint Paul. The identity of the painter was uncertain—Bernard Berenson, the critic, had categorized
the large figure “as by Giotto.” Duveen insisted it was a Giotto: “I say it is by Giotto and it will be by Giotto.”

Finley reports countering that if Mellon bought it, it would be at the price of a painting by “A Follower of Giotto.” Mellon, a good boss, backed him up: “I will buy the Saint Paul painting as ‘A Follower of Giotto’ and at a suitable price, not the price of a Giotto, and it will so hang in the National Gallery.” The transactions were concluded December 15.

The number of artworks that Mellon had to offer was still not so very large. As John Walker, who would become collection curator, would note, in the end Mellon gave 125 paintings and 23 sculptures, nowhere near enough for the building he was beginning to envision. “The Mellon works of art would seem as scattered as sheep on a Scotch moor.” But Mellon, again true to his old concept of seed capital, was reckoning that other philanthropists would fill a space if he set the model by providing it. It was now mid-December, and he was ready to write Roosevelt.

The president replied to Mellon’s proposition the same week, on the day after Christmas.

 

My dear Mr. Mellon,

When my uncle handed me your letter of December 22 I was not only completely taken by surprise but was delighted by your very wonderful offer to the people of the United States. This was especially so because for many years I have felt the need of a national gallery of art
…

 

Within days, Mellon and Roosevelt were taking their tea in the upstairs library on the second floor of the White House. They sat down at five o’clock, but what they said precisely is unknown: “He and Mr. Mellon were deep in conversation for some time,” David Finley would write. The president “tossed” Mellon’s offer to his attorney general for management. Last of all the president’s personal secretary, Missy LeHand, “came in to pour tea, with some of the Roosevelt grandchildren to look on.”

Roosevelt was in a grateful mood in these postelection days—the same week, mindful of all Cordell Hull’s persistent free trade policy had done for recovery, he also wrote to the acting secretary of state to ask whether he might recommend Hull for the Nobel Peace Prize. Clearly he also wanted to show gratitude to Mellon. But this was still an anxious time for Mellon. There had to be more exchanges of letters and an act of Congress. Paul Mellon and his wife, Mary, were expecting the birth of their first child. But, the papers reported, Mellon was working hard on the art project. The grandchild, Catherine Conover Mellon, was born on the second-to-last day of 1936, but Paul convinced his father to stay in Washington until another round of letters with the White House was concluded. As it turned out, Mellon’s concerns were overdone. The same Congress that would find other questions more challenging—most especially a plan of Roosevelt’s about the Supreme Court—would find it easy to support the National Gallery project later that spring.

It may be that Mellon’s impatience merely had to do with his age, and his sense of time passing. His son Paul later wrote of his father in this period that there were moments “during which his words came out helter skelter.” He thought about buying art—in January he would buy a Hans Memling and a painting by a Frenchman, Jean-Baptiste-Siméon Chardin. He would buy these from Knoedler and Co., not Duveen. But Duveen was still close, along with the architect, pushing Mellon on the gallery. Mellon thought buildings should be limestone—the Mellon National Bank was limestone, as was the Mellon Institute, a trapezoid in Pittsburgh already well under construction. And so were a number of Washington structures Mellon had built for Coolidge. But limestone, Duveen was convinced, was not good enough for the gallery. Duveen would let Mellon pick which sort of marble to use in construction, but marble it had to be, Duveen insisted—just as in Paul’s student poem. Duveen took Mellon on a car ride of Washington to remind him of the grimy look that limestone took on as the years passed.

Marble it would be, Mellon conceded. Like his son, he dreamed of bright structures. “Thanks for the ride,” Mellon said. “It has been
the most expensive ride of my life.” Though we do not know all the details of Duveen’s arguments, one that would have appealed to Mellon was that a grander gallery was likely to attract more “capital investment”—more art gifts—from other collectors. Mellon chose pink Tennessee marble and—as Duveen’s biographer Behrman reports—did much for the marble industry by placing the largest single marble order in that state in history. More than a hundred carloads of light pink Tennessee marble would be quarried in the following year for the Mellon project alone. In a letter to Congress on his commitment to the gallery, Mellon reported that the marble increase alone involved an extra outlay of $1 to $2 million.

Mellon took care with the other details. Architect John Russell Pope had drawn a model—based on George Hadfield’s 1820 courthouse building in Judiciary Square, some said. Others thought Pope was influenced by the German architect Schinkel. Mellon and his architect wanted a long, low structure because they wanted to spare Americans museum fatigue and that bane of septuagenarians, museum stairs. Mellon was not pleased with the number of columns—too many. But, he would tell Finley, “I would not want to hurt his feelings.” In the end the message was communicated to Pope, who agreed that the columns on the north and south ends distracted, and made the change. At 782 feet, the gallery would be 36 feet longer than the Capitol itself. In New York, the
Herald Tribune
carried a three-part series detailing every aspect of the gift collection. Mellon was not merely giving, he was cataloging what he was doing for the recipients.

The full import of the secret was coming out. Mellon the miser was giving one of the greatest gifts a man had ever given to a country: a classical building with modern comforts, including upholstered sofas for the guests, a special smoking room, and ample light in its courtyards. It was a project that measurably boosted the economy in places such as Tennessee. A museum that would contain the world’s best paintings. A collection whose ultimate curator—Mellon—had given unstinting attention to quality and shown utter disregard for nationality or provenance.

This was the opposite of Morgenthau’s murals, of Dorothea Lange’s migrant photography, which were both political art, and indeed, art whose representations of struggling industrial workers or farm workers aligned with the specific purposes of the Roosevelt administration. Watching the partisan art go up, a disconcerting critic had chastised Roosevelt’s political opposition for failing to complain. “The losers prefer to await ‘Landon’ art,” he had written mournfully.

Mellon tended the project carefully; construction would start in summer. And in summer, too, he would go to visit his daughter Ailsa in Southampton. Now that the gallery news was out, he could act openly. Perhaps inspired by the thought of his activity, the Dow climbed, moving close to 190.

At the time of these meetings and decisions, all the men involved knew that they might not see the gallery completed. Roosevelt suffered from sinus infections and atherosclerosis, and always, the increasingly debilitating effects of his paralysis by polio. Duveen was ailing. Pope was not well. Yet all four men recognized the challenge of Mellon’s gift. It started on the aesthetic plane—the challenge to Morgenthau, and to the modern art of the 1930s generally. It continued on the architectural plane, with the scale of the building. But the challenge was also economic. What Mellon was saying was that the public sector could erect its structures—the Norris Dam at TVA; the new Supreme Court; a center for animal husbandry, Tugwell’s area, going up in Maryland. But even in the fifth year of the New Deal, the private sector too could claim a proud place on the Mall, and occupy that place with its own structure of virtue. Mellon might be correct about the Depression being a bad quarter hour. History alone would tell whose edifice had the more enduring power.

January 1937
Unemployment: 15 percent
Dow Jones Industrial Average: 179

IT WAS THE WETTEST OF POSSIBLE INAUGURATIONS—
a wild storm dumping a mixture of hail and rain onto the streets of Washington. Yet the four septuagenarians made their way through it on January 20, 1937, wading across soggy red carpet to wet seats. Pierce Butler, Willis Van Devanter, George Sutherland, and James McReynolds joined two others and listened as their colleague, Chief Justice Charles Evans Hughes, administered the oath of office.

But the justices were waiting for the two thousand words or so that would come next—the inaugural speech. The temperature hovered above freezing, and those in the crowds who had not brought umbrellas hid under blankets. Sutherland shivered visibly. John Knox, the clerk to McReynolds, later recalled his shock at seeing the old men up there. He was surprised to see Van Devanter, especially “since Van Devanter had told me once that he had been afraid even to take his hat off at Justice Holmes’s funeral for fear of catching
cold. And Cardozo was too frail a man to risk sitting out long in such weather.”

Perhaps adrenaline protected the judges—or sheer resolve. They were bent on proving themselves as hardy as Roosevelt, who was braving the storm despite his own infirmity. The justices were showing they could stand up in the face of criticism. The Four Horsemen were also were making another, cold calculation. Roosevelt wanted to stop them, that they knew. And he probably had the power to do it. Still, he might now overreach.

All that month, there had been quiet signals that the White House was sorting out its options on the Court. The 1936 convention platform had suggested that the Democrats would offer a constitutional amendment—what the Democrats labeled a “clarifying amendment”—to allow Congress greater power. Roosevelt might now try to go further.

Certainly the administration seemed to be in action mode generally. On January 3, a Treasury spokesman announced that Mellon’s gift would not affect the prosecution of the lawsuit against him in any way. The gift would certainly be accepted as a charitable deduction, Arthur H. Kent, assistant general counsel to the Treasury, said, but not one for 1931, the year at issue in the case. That same week, the Securities and Exchange Commission made targeting of the utilities executives easier by releasing the salaries of some executives to the papers. Willkie’s 1935 salary stood out like an archery bull’seye—$75,690, an enormous figure for the period. The average wage for all employed in Willkie’s industry was much lower—less than $2,000 a year. This disparity could clearly be turned against Willkie.

Within a few days Hatton Sumners, chairman of the House Judiciary Committee, had revived a bill that guaranteed the income of retiring justices as long as they provided certain minor judicial functions. It looked like a proactive gesture to encourage retirement and, thereby, fend off a dramatic assault on the Court from Roosevelt. In January too McReynolds’s clerk had opened the mail to discover a gift from Homer Cummings, the attorney general, Cummings’s new
book on the law. “To Mr. Justice Reynolds with the best wishes of Homer Cummings, Jan 11/37,” the ink inscription read. Finding his name in the index, McReynolds discovered that Cummings had, on page 531, quoted an argument on “the problem of age” the justice had made more than two decades before, when he himself was attorney general. If a superannuated judge refused to resign, the younger McReynolds had argued, then the president should appoint an extra judge “to insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.” Upon reading this, the clerk recalled, “McReynolds’ eyes narrowed.” The justice gave the clerk the book, telling him, “I wouldn’t have it around the house. Take it away!” Cummings’s name became “unmentionable” in the apartment, Knox wrote.

Now, when it came, the inaugural address was every bit as expansive as the justices had imagined. “Our progress out of the Depression is obvious,” the president declared; the achievement of recovery was as good as accomplished. This seemed a stretch, since with one or two men in ten still unemployed, the country was scarcely back. (Later data showed that joblessness had risen since the November 1936 low.) But the argument was expected. Roosevelt proceeded. It was high time that the old style of economics be buried: “We have always known that heedless self-interest was bad morals; we know now that it is bad economics.” Those who forgot that did not recognize that in the long run, “economic morality pays.” Wealth was simply not a sign of virtue. The country had developed a new understanding of life in the Depression. “This new understanding,” Roosevelt said, “undermines the old admiration of worldly success as such.” A decade had passed since Coolidge was quoted as saying, “The business of America is business.” But Roosevelt made it seem like a millennium.

Next Roosevelt turned the weakness of recovery to his advantage. There were still millions in America who did not enjoy even the absolute necessities of life. Roosevelt dropped a line he and Sam Rosenman had crafted: “I see one third of a nation ill-housed, ill-clad, ill-nourished.” This gave him, he said, a mandate to establish a
“new order of things.” The abiding downturn demanded a new government of unprecedented boldness. And next came a phrase that took even many of Roosevelt’s allies aback: “We are beginning to wipe out the line that divides the practical from the ideal; and in so doing we are fashioning an instrument of unimagined power for the establishment of a morally better world.”

Having learned the importance of the interest group in his first term, Roosevelt was now announcing that he would use the second term to make a perpetual interest group of that one-third of voters. But what stuck out was the phrase “unimagined power.” The country itself remembered and knew, Roosevelt said, from the experience of wars, when it was time to move “beyond individual and local solutions.” This was one of those times.

The old intellectuals had not done so well toward the end of the first term; many were already out of government. Tugwell was going. Lilienthal was slowly gaining ground on Arthur Morgan. Yet suddenly, in this address, FDR was talking just as expansively as he had when he inspired the old pilgrims at the outset. “Have we reached the goal of our vision of the fourth day of March 1933?” he asked. “Have we found our happy valley?” The difference was that this time the utopia would be more Frankfurter’s than Tugwell’s—one arrived at through crafted legal moves rather than bold programs, that emphasized the business of getting a law through over economics. This was the era of democracy; the era of the republic was passing. “In fact,” Roosevelt said, “in these last four years, we have made the exercise of all power more democratic; for we have begun to bring private autocratic powers into their proper subordination to the public’s government.”

And, even in the rain, the president also made it clear that he was planning woe or worse for anyone who did not sanction the utter primacy of that new relationship. For, as Roosevelt put it, “evil things formerly accepted will not be so easily condoned.”

The president also spoke of groups whose cooperation would be mandatory if his vision was to succeed. The first was the Court itself. Roosevelt carefully read a line about how men and women in the
American republic would “insist that every agency of popular government”—the court included, the suggestion was—“use effective instruments to carry out their will.” The second group whose support he demanded was wealthy taxpayers, who must be encouraged or coerced into going along with funding the new enterprise. This was what Roosevelt was getting at when he said that the “test of our progress is progress, not whether we add abundance to those who have much; it is whether we provide enough for those who have little.” The last group whom Roosevelt called to task were employers. The sentence about “evil things formerly accepted” suggested that Roosevelt had yet more plans for utilities, even beyond the holding companies.

The vigor of the speech was big news. Frankfurter would write to Roosevelt that the “kids of 2036” would still be “reading and reciting your Second Inaugural.” But the justices made a show of calm departing, just as they had with their arrival. Van Devanter could be seen taking his wife to lunch in the new Supreme Court Building’s cafeteria. The court was in recess until February 1.

Frankfurter wanted the president to hold back; the aging of the Court meant that matters would go Roosevelt’s way in any case. Frankfurter also had his mind on something else; the right outcome in a case might divert the president. Back in 1923, it had been Justice Sutherland who rejected Frankfurter’s defense of the
Adkins
minimum wage, as well as his argument that Congress should force low wages up because they caused social problems. A year earlier, the high court had rejected his New York State minimum wage law in
Tipaldo.
Now, however, it had already agreed to hear a similar case,
West Coast Hotel Company v. Parrish,
a minimum-wage case brought by a woman in Washington State. Felix thought the progressive legislation might win this time.

But Roosevelt was not concentrating on individual cases. He was still thinking of action—action, even, for the fun of it. That spring Congress would pass the Fair Labor Standards Act, “putting a floor,” as he would put it, under wages. And in a letter he wrote to Frankfurter on January 15, he let on he planned something else. “Very confidentially, I may give you an awful shock in about two weeks.
Even if you do not agree, suspend final judgment and I will tell you the story.” Joe Robinson, the Senate majority leader, would help the president. He had already proven a valuable ally, and Roosevelt was talking about naming him to the Supreme Court.

The Four Horsemen were restless, but not ready to give up. Around this time, John Knox, the clerk, wrote in his diary of McReynolds: “The justice has been tipped off to something, but I don’t know yet what it is. He is either fearing inflation or being forced to resign. He has had me go through his records back to 1903, he has been calling up his stock brokers, etc. A millionaire from Wall Street came down to advise him to ship part of his money to Canada and England.” Later in the winter and in early spring McReynolds would cut off contact with many friends and acquaintances.

On January 26, Roosevelt spoke—not of courts but rather to announce he would give up on his plan to explore power pools between the government and the private sector. The statesmanlike concession that Willkie had made with such fanfare before the election had in the end served only to give Willkie’s competitor, the TVA, extra time. With the old agreement between TVA and Commonwealth and Southern no longer in force, Commonwealth and Southern could no longer buy $800,000 worth of power from TVA; Willkie announced his company would need $10 million to construct steam plants to get its energy. In the same days Roosevelt’s ally in Tennessee, Senator Kenneth McKellar, introduced legislation that would stop lower federal courts from blocking New Deal measures until the Supreme Court had ruled on a given measure’s constitutionality. McKellar’s specific intent was to halt the legal assault on the TVA. Senator Norris complained that “the power companies traveled from one court to another, I presume, to find a friendly court, and when they found one, they stayed there.”

Roosevelt’s confidence seemed only to grow. Again weather played a role. Some noted that, in that same January, an unusual thing came to pass at the White House: the lawn grew. So much that it had to be mowed—a first for January, as far as the records showed. The cause was the warmth from storms many hundreds of miles to
the west—and now, as January moved to February, flooding. The Ohio-Mississippi flood,
Time
magazine noted, could only lend more credibility to Roosevelt’s TVA and its water management projects. Ten years after Hoover’s action, Roosevelt seemed the permanent flood rescuer, “the Great White Father,” as
Time
wrote.

In February, the TVA offered Willkie a one-month extension on its contract to sell electricity to Alabama Power. But the contract also bound Willkie to negotiate with the TVA on very narrow terms, and Willkie could not see an advantage. Willkie fought back, saying that he would be more willing to stay at the negotiating table if Roosevelt would return to power pool discussions.

Roosevelt hosted the justices for a dinner at the White House. All came except Justice Brandeis, who made it a rule not to go out evenings, and Justice Stone, who had just returned after a convalescent voyage. Others in attendance were Donald Richberg—the man who had lost the
Schechter
case and, as it happened, penned a draft of the stinging inaugural address—and Sam Rosenman, who had also worked hard on the same speech. The president seemed to be enjoying his needling.

Three days after the dinner, Roosevelt finally acted. He announced that he would skip state ratification and simply send over to Congress legislation that would increase the number of justices from nine to a figure that could range as far as fifteen. For each justice who stayed past the age of seventy, a new one could be added. The concept was indeed similar to what McReynolds had suggested so many years ago, albeit for a lower court. The pretext for this action was the argument that the justices were too overloaded with cases. The
New York Times
reported that a congressman named Maury Maverick—the name suited the temperament—“ripped the mimeographed draft of the president’s bill from the back of the message, pasted it on a house bill form, and threw it into the hopper.”

The president’s action was so direct that people used the same phrase they had used to describe Roosevelt’s monetary forays in 1933: “a bombshell” had hit Congress, Turner Catledge of the
New York Times
reported.

Many were convinced that Roosevelt had indeed finally over-stepped. His enemies now jumped to take advantage of the error. Senators William Borah and Charles McNary, prominent in the Republican Party, ominously signaled they were giving the proposal serious review. Hoover now was “eager to jump into the fray,” Senator Vandenberg wrote in his diary. A number of Democrats spoke up as well. Senator William H. King of Utah summarized the skepticism when he said, “There is no necessity for it.” Roosevelt’s friends were chagrined, or worse. Marion Frankfurter, who had attended the press conference where Roosevelt made his original “horse and buggy” outburst, wrote to her husband: “I hate the whole bill so thoroughly, think it so cheap and dishonest, and I can’t bear to have you accused of being in any way responsible for it.”