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FDR's Losing Battle To Pack The Supreme Court.

In 1937, frustrated by a conservative Supreme Court that struck down a series of his New Deal programs, President Franklin Roosevelt set about to reform the court — by expanding it and adding as many as six liberal justices. The controversial proposition is examined in writer Jeff Shesol's new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court.

42:57

Other segments from the episode on April 13, 2010

Fresh Air with Terry Gross, April 13, 2010: Interview with Jeff Shesol; Review of the DVD recording of the live music concert "The T. A. M. I. Show."

Transcript

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FDR's Losing Battle To Pack The Supreme Court

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

As President Obama prepares to make his second appointment to the Supreme
Court, we're going to go back to 1937, when President Franklin Roosevelt tried
to reshape the court. It was the first year of his second term, after winning
in a landslide. He had a Democratic Congress, but the Supreme Court had become
his opponent. In a series of rulings, the court had struck down major parts of
the New Deal.

Curtail the court or submit to judicial tyranny is how the choice was described
by FDR's Secretary of the Interior Harold Ickes. After FDR's re-election in
'37, he came up with a secret plan to reshape the court by expanding the number
of justices, which would enable him to appoint justices who would support his
New Deal reforms.

This little-known chapter of history is the subject of the new book, "Supreme
Power: Franklin Roosevelt vs. the Supreme Court." My guest is the author, Jeff
Shesol. He was a speechwriter for President Clinton and is also the author of
"Mutual Contempt: Lyndon Johnson, Robert Kennedy and the Feud That Defined a
Decade."

Jeff Shesol, welcome to FRESH AIR. What are some examples of New Deal
legislation that the court declared unconstitutional and overturned?

Mr. JEFF SHESOL (Author, "Supreme Power: Franklin Roosevelt vs. the Supreme
Court,"): When the first New Deal case reached the court at the beginning of
1935, the court struck down a key piece of the NRA, which was the National
Recovery Administration. That was essentially the recovery act of the Roosevelt
administration, the centerpiece of his plans to get the country out of the
Depression.

And from that point on, for the next year and a half, the court struck down
virtually all of the central pillars of the New Deal. They struck down the
recovery act, as I said. They struck down the farm program, the AAA or
Agricultural Adjustment Act. They struck down a coal act. They struck minimum
wages. They struck down so many laws so quickly that by the end of the term
that ended in the summer of 1936, one columnist said that it reminded him of a
Shakespeare tragedy: At the end of the play, the stage is strewn with dead
bodies. Those dead bodies were the New Deal programs.

GROSS: Now, you write that between 1933 and '36, the court overturned acts of
Congress at 10 times the traditional rate. And to accomplish this, justices
disinterred long-neglected doctrines and breathed new life into obscure clauses
of the Constitution. Give us some examples of the neglected doctrines or
obscure clauses of the Constitution that the justices cited in declaring parts
of the New Deal unconstitutional.

Mr. SHESOL: That very first anti-New Deal decision at the beginning of 1935
struck down a piece of the recovery act on the grounds of delegation of power.
The court said essentially that Congress had delegated too much governmental
power to a body outside the government.

What was remarkable about this is that the Delegation of Powers Doctrine had
essentially been dead for 30 or 40 years. The people had written it off, had
said that it was a relic of the early part of the century. And so it was a
great surprise to see the court not only revive it but then to use it very
aggressively to overturn such a key part of the New Deal.

And this became a characteristic of this court over the next couple of years,
that doctrines that nobody had heard of, clauses of the Constitution that
nobody was familiar with, things like the Privileges or Immunities Clause,
which really had never been applied in this fashion before, were taken up and
turned into another tool, with a weapon with which to strike down the New Deal.

GROSS: My impression from your book is that the justices were actually afraid
that the New Deal was going to ruin America. What were their fears?

Mr. SHESOL: The interesting thing about this conflict is that both sides in the
conflict - and by that I mean Roosevelt and his supporters in the country and
then the conservatives on the court and their supporters in the country - both
sides felt that they were fighting for nothing less than the survival of
democracy.

Roosevelt felt that if he couldn't get these New Deal programs through, if he
couldn't do something to get the nation out of the Depression, that there would
be a complete economic and social collapse in the country and that out of the
ashes, a dictator would arise, and it would be the end of democracy.

Conservatives on the other side felt that if the government were allowed to
develop such centralized power over so many sectors of the American economy and
over American life that there would be no freedom in this country, that
property would no longer be a sacred right and that individual initiative and
all the things on which self-government rely, all of these would collapse, and
again, we would be in a dictatorship.

So the interesting thing, as I said, is that both sides felt that they were
fighting against dictatorship in America.

GROSS: And this was a timely moment to be fighting against dictatorship in
America because you had fascism spreading through Europe.

Mr. SHESOL: Absolutely, and Americans were very aware of what was happening in
Europe. I know that the portrayals of the time suggest that Americans weren't
interested in what was happening around the world and were very insular during
this period, hoping that they didn't get entangled in what was happening in
Europe and so forth.

But while we didn't want to get entangled in Europe, we certainly were aware of
what was going on in Europe. And so, the attacks from Roosevelt from the right
constantly referred to Hitler, Mussolini and Stalin, constantly in right-wing
editorials, in conservative papers in the country.

And so this was a very live analogy for Americans at the time, and it seemed
like a very real danger. If the country couldn't get itself out of the
Depression, it did seem that we would head down what Herbert Hoover called the
suicide road toward dictatorship.

GROSS: Well, I hear certain parallels to today, for example, with health care.
I think a lot of people on the right see health care reform as an end to
democracy in the sense that they see this as the first step towards communism
or socialism, whereas liberals, I think, would say that if we don't pass health
care reform, it really diminishes democracy because so many people don’t have
health care, which should be a basic right. Do you see those parallels to
today?

Mr. SHESOL: There's just a huge discrepancy in how the two sides view the
situation, and the parallels really are very strong. Every New Deal program
that President Roosevelt passed, whether it was the recovery act or the
agricultural program, which was really a tax on processors of agricultural
goods, every one of these things was denounced by the right as a government
takeover of fill in the blank.

And when the agricultural act passed, the comparisons to collectivization in
the Soviet Union and the regimentation of agriculture so that all farmers would
be working for the federal government and so forth, this stuff was not just a
fringe argument. This was very – this was in editorials in the Wall Street
Journal and the Chicago Tribune and heard from Republican members of Congress
at the time.

So this was really how many people at the time saw it, and the emotions then
and the emotions today were very deeply felt.

GROSS: There were big differences between how FDR and the conservative justices
viewed the Constitution and how it should be interpreted. Do you want to
describe some of those differences?

Mr. SHESOL: Absolutely. Roosevelt believed in what was called at the time and
what is still called a living Constitution. The idea was that the founders or
the framers of the Constitution had set certain things in stone, and those are
very clearly marked out in the Constitution, but most of what exists in the
Constitution is sort of vague and unclear and left to each generation to
decide.

What does due process really mean? What does equal protection really mean?
Roosevelt believed, and his supporters believed, that each generation
essentially has to sort that out for itself and needs to do that with respect
to what's going on in the country. And, of course, what was going on in the
country then was this terrible depression.

On the other side of the argument, then and today, was a view that saw the
Constitution as essentially fixed by the founders, that it was a Constitution
of limitations. And so it always leads, in this view, to a limited government
and serious limits on governmental power and presidential power and so forth.

And so there was a fundamental clash between those who saw the Constitution as
essentially a living thing and as a finely tuned mechanism, which runs itself
if you don't mess around with it.

GROSS: A debate that you could still see in today's Supreme Court.

Mr. SHESOL: Absolutely. There's talk in the papers this week, as we begin to
debate the possibilities for replacements of Justice Stevens, in very similar
terms to the argument as it was framed in the 1930s.

This is a timeless argument. It's something that really never goes away. It's
always simmering, but during times of economic distress, as in the 1930s, as we
have today, the argument tends to get very explosive because the stakes, again
for both sides, seem to be the very survival of American democracy.

GROSS: My guest is Jeff Shesol, author of the new book "Supreme Power." We'll
talk more after a break. This is FRESH AIR.

(Soundbite of music)

GROSS: My guest is Jeff Shesol, author of the new book "Supreme Power: Franklin
Roosevelt vs. The Supreme Court." It's about how in 1937, FDR tried to reshape
the court, expanding the number of justices so that he could appoint justices
who would uphold New Deal legislation.

Okay, so we've been talking about how discouraging it was for Roosevelt to see
so much of his New Deal legislation overturned by the Supreme Court, which
declared these pieces of legislation unconstitutional.

So FDR was determined to change the makeup of the court so that his plan could
move forward. And he proposed a Judiciary Reorganization Bill in 1937. And what
this bill directly addressed, among other things, was that he was facing a
Supreme Court that was the oldest court in history. How many of the judges were
over 70?

Mr. SHESOL: In 1936, the average age of a justice on that court was 71. So it
was, at that time, the oldest court in American history.

GROSS: So what was FDR's proposal to change the makeup of the Supreme Court?

Mr. SHESOL: FDR proposed to expand the size of the Supreme Court from nine up
to 15, but it's actually, I think, useful to take a quick step back to go
through the process of elimination that Roosevelt went through over the course
of his first term, before he came to that fateful decision to pack the Supreme
Court.

A very popular idea in the country over the course of Roosevelt's first term
was that the Constitution needed to be amended in any one of a hundred
different ways. In fact, in 1936, there were 100 different proposals in the
Congress to amend the Constitution.

There was an increasing sense in the country that the Constitution was too
constraining a document, that it just didn't allow the government to do what it
needed to do to get the nation out of this economic crisis. And so there were
all kinds of proposals being floated in 1935, '36. The nation had become like a
rolling constitutional convention.

This was a debate not just being played out in the law reviews or within the
White House. This was being played out on the front pages and the editorial
pages of the newspapers, played out on the radio, arguments on street corners
and at bars and so forth. This was a major topic of conversation in the
country: what was to be done about the Constitution?

Some suggested that the Congress ought to be able to essentially overrule the
Supreme Court, that by a two-thirds vote, the Congress should be able to
overturn any decision of the Supreme Court, essentially making the Congress the
last word on the Constitution and not the court. There were some very radical
ideas that would have really rebalanced or unbalanced the whole system of...

GROSS: Wasn't one of the ideas that there could be a popular vote overturning a
Supreme Court ruling?

Mr. SHESOL: That's right, that you would essentially take the matter back to
the American people and you would have a referendum over a piece of legislation
and that if the public approved it, then it would become the law of the land,
no matter what the court or the Constitution said about it.

These were very radical ideas, and very many of them were in the air. Some were
a little bit less radical. And if Roosevelt had thrown his weight behind any
one of them, he might have gotten pretty far in the process of actually
amending the Constitution.

But here's why he didn't do that, two reasons. First, he felt that it just
wasn't practical. It takes a very long time, usually, to amend the
Constitution, and he felt that it would be very difficult to get it done
quickly enough to change the reality in the country.

But secondly, and this is really important to understanding why Roosevelt
packed the court: He didn't see any kind of contradiction between the
Constitution and the New Deal. He didn't think there was anything in the
Constitution that really prevented him from doing what he needed to do. The
problem, as he saw it, was not the Constitution, it was the conservatives on
that particular Supreme Court. So what could you possibly do about them? And
that's how he came to the idea of packing it.

GROSS: So what was his idea for packing the Supreme Court?

Mr. SHESOL: His idea that for any justice over the age of 70, because the age
of the justices was seen as part of the problem – these old justices were out
of touch with modern realities – for any justice over 70 who refused to retire,
the president would have the right to appoint another justice, and so there
would be a cap on the number of justices at 15.

If no one retired, if the plan passed and no one retired, Roosevelt would
instantly get to appoint six new liberal justices to the Supreme Court. So,
because he couldn't push the conservatives off the court, he thought, well, at
least I can outnumber them.

And what most people didn't realize either then or today is that this is
entirely constitutional. There's nothing in the Constitution that sets the
number of justices at nine. The Constitution says nothing about how many
justices there are and the number actually went up and down, usually for
political reasons, over the course of the 19th century.

It settled at nine in 1869, and so by the time Roosevelt proposes his plan in
February, 1937, it seemed to most Americans that the number nine was
foreordained, that it was permanent.

GROSS: FDR kept the plan a secret until the very last minute. Why did he keep
it a secret?

Mr. SHESOL: Roosevelt loved secrets. He loved mystery. He loved to withhold
pieces of information, even from his closest advisors. He loved to be the only
guy in the room who knew how all of the pieces fit together. And sometimes this
was very innocuous, it was just a little surprise. He loved springing little
surprises on the people in his world. But sometimes, it involved really
significant matters.

And so this plan that I've just described was cooked up really by two people,
by Franklin Roosevelt and his attorney general, Homer Cummings. And even though
there had been a big national discussion, as I described it, for four or five
years before they decided to pack the court, and even though Roosevelt had
consulted the opinions of all of his advisors and was reading widely on the
matter, when it came down to making the decision, he cut everyone out of the
process except for Homer Cummings.

And the two of them went into a little bubble of their own creation, and they
managed to convince themselves not only that this was the right idea, to pack
the court, but also that they could get away with putting essentially a mask on
the plan, and rather than attacking the ideology of the justices and saying
this is about getting the New Deal past conservative justices, they said: Well,
let's present this as a plan that promotes judicial efficiency. Let's suggest
that because the court is full of very old guys, the nine old men, as they were
known at the time, that they're falling behind in their work, and so they need
some help. They need more justices on the court. And in fact, the entire
federal judiciary is full of old men. Let's add justices across the entire
federal judiciary.

And they managed to convince one another, because they had closed the process,
that this was a very clever plan and that they would manage to get it past
everyone. It – the mask was ripped off in the first 24 hours of the plan being
unveiled, in February '37, and this was a huge miscalculation, upon other
miscalculations that Roosevelt made. His love of secrecy got away from him.

GROSS: So how did Roosevelt's own cabinet and Congress react when this pretty
radical plan was finally unveiled?

Mr. SHESOL: With horror, actually, and that's not an overstatement. Most of the
members of Congress and his own cabinet expected that when Roosevelt won re-
election by this huge landslide, one of the biggest landslides in American
history...

GROSS: Against Alf Landon.

Mr. SHESOL: Against Alf Landon of Kansas, that's right. It was not only a huge
landslide for Roosevelt, but also in the Congress, there were 96 senators at
the time for 48 states, and 76 of those 96 senators were Democrats. We were
closer to one-party rule than the nation had been since Reconstruction.

And so, everyone expected that Roosevelt would do something about the court,
but they imagined that it would be a constitutional amendment of some kind
because this was such a popular idea. Really, no one expected that he would
propose to pack the court, and so when they learned of it, the morning that he
announced it to the nation, they were horrified.

He called his cabinet in for a meeting, revealed the plan to them, called
congressional leaders in for a meeting, revealed it to them and then was
wheeled into the Oval Office to announce it to the press. And so they were
enraged that they hadn't been let in on this, and they were horrified by the
plan itself.

So the plan, as one of Roosevelt's advisors said, began with a black eye, and
that was the disapproval of all of his top advisors, almost all of his top
advisors, and the Congress. And when the congressional leaders got in their
cars and were taken back that morning to Capitol Hill, one of them turned to
the others and said: Boys, here's where I cash in my chits. He was no longer
going to support Roosevelt.

And remarkably, John Nance Garner, who was Roosevelt's vice president, went
back with them to Capitol Hill, stood in the well of the Senate, and as the
plan was read aloud to the senators, Garner held his nose and gestured thumbs-
down. So this was an incitement to rebellion, and rebellion is very much what
Roosevelt got.

GROSS: You write that the Nazi press praised the idea of packing the court.
What did the Nazi press have to say about it?

Mr. SHESOL: Well, I think the Nazi press - it's hard for me to know what the
motivation was, but I think they were having a little bit of fun with
Roosevelt. They would praise him to create trouble for him, and they praised
the centralization of power that they saw the plan as representing.

The way they portrayed it, and in fact the way that a lot of Roosevelt's
conservative critics in America portrayed it, was that this was another step
towards centralizing power in his hands.

GROSS: One of the things I found fascinating was that one of the people who
supported packing the court was LBJ, Lyndon Johnson, who when he became
president picked up where Roosevelt left off with Medicare and Medicaid. And
LBJ was elected in 1937, and one of the things he ran on was packing the court.

Mr. SHESOL: LBJ ran for Congress in a special election in the spring of 1937 on
a platform of court-packing. He was trying to distinguish himself. He was a
young guy. He was 28, 29 years old, and he was trying to distinguish himself as
the most pro-Roosevelt candidate in a crowded field.

They were all Roosevelt Democrats, and he had somehow to get an edge over the
other seven candidates in this race. And so he went as far as he possibly could
to support Roosevelt, and by embracing the court-packing plan, which was so
controversial, this was LBJ's way of saying I'm with Roosevelt through thick
and thin. Things are tough for Roosevelt right now, but I'm with him on the
biggest problem that he's ever created for himself.

And Roosevelt took notice of this remarkable young man in Texas who was running
on court-packing, and Roosevelt was thrilled when Johnson won. He really took
this as a sign that there was more support out there in the country for court-
packing than there really was.

And so, after LBJ had won, Roosevelt arranges a meeting. Roosevelt was on a
fishing trip off the Gulf Coast of Texas and arranged a meeting in Galveston
with LBJ, and there was a handshake photo, which I reproduce in the book. It's
a remarkable moment to see Roosevelt in his suit and a beaming Lyndon Johnson,
thrilled at this opportunity to meet his idol, Franklin Roosevelt.

GROSS: Jeff Shesol will be back in the second half of the show. His new book is
called "Supreme Power: Franklin Roosevelt vs. the Supreme Court." I'm Terry
Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I’m Terry Gross back with Jeff Shesol, author of the
new book "Supreme Power: Franklin Roosevelt vs. the Supreme Court." It's about
how in 1937 FDR tried to reshape the court fearing that it was making reform
impossible. It had struck down major parts of his New Deal legislation. It was
the oldest court in history. Five of the nine justices were 74 or older.

Roosevelt came up with a secret plan to add a younger justice for each justice
over 70 who declined to retire. The maximum number of justices would be 15. The
real goal was to pack the court with more liberal justices who would support
the New Deal.

Shesol was a speechwriter for the Clinton administration and is a founding
partner of a speechwriting firm.

So when this secret plan of Roosevelt's was unveiled, how did the justices
react and I should say here, that as part of your research you were able to get
access to correspondence between justices.

Mr. SHESOL: That's right. What you see is that even among Roosevelt's
supporters on the court: Brandeis, Cardozo, these great liberal justices and
Harlan Fiske Stone, there was horror at this plan. They didn’t like the
precedent that they thought it would set. They didn’t like the idea of turning
the Supreme Court into what they felt would be essentially a political body - a
kind of mini-legislature.

The more justices you added, the more they felt that it would turn into a sort
of small Congress with people lobbying for votes and so forth and trading votes
on different cases and so forth. And they thought that it would be so awful in
fact, that a number of them considered resigning if the plan passed and some of
them considered resigning on mass as the debate was unfolding.

GROSS: So what finally killed FDR's plan to pack the court?

Mr. SHESOL: There were a series of blows. And one of the things that I enjoyed
in writing about this are the remarkable twists and turns in this story, all of
the unexpected events that ultimately conspire against Roosevelt. I should
pause to say here that despite all the forces that were lined up against
Roosevelt, the public was pretty evenly split on the plan through most of the
six-month argument over the court-packing bill.

And so, it wasn’t out of the realm of possibility that Roosevelt, with his
incredible powers of persuasion might somehow pull it out. He might actually
get if not six justices, maybe four. That was a popular compromise alternative
that was being floated by members of Congress. So it was possible that he was
going to win.

But then there were a series of events. Beginning with a public letter that
Chief Justice Hughes wrote, an open letter essentially, to the Senate, taking
apart the plan. When Hughes decided that he couldn’t testify before the Senate
Judiciary Committee, he thought well, I’ll write them an open letter and let
them know what I think of the plan.

This had a devastating effect. And then most significantly, the court suddenly
in the middle of the court fight begins to uphold the New Deal. In a couple of
decisions in March and April of 1937, the court switches. The swing man in the
middle, a Justice named Owen Roberts, suddenly starts voting with the liberals
and with Hughes. And so they uphold a minimum wage that's virtually identical
to the one that they knocked down a year before that.

Then they uphold the National Labor Relations Act, which is a landmark piece of
labor legislation. They upheld both of these and they were described at the
time as: the switch in time that saved nine. It saved the nine justices from
the Supreme Court from becoming 15 justices. And then, one of the conservative
justices in a very well-timed, very deliberate move, retires shortly after
that, giving Roosevelt his first chance to appoint a justice. So all of these
things successively pull the legs out from under the plan and it ultimately
collapses by the summer of 1937.

GROSS: Although President Roosevelt failed to pack the court with liberals as
he wanted to do, by the time he died, he'd appointed nearly the whole court.
How did it work out that way?

Mr. SHESOL: Roosevelt insisted to the end of his life that he had lost the
battle, as he put it, meaning he didn’t get to pack the court, but he had won
the war. The court changed. The court switched in the middle of the court
fight, began approving the New Deal and ushered in what even today is still
called the Constitutional Revolution of 1937. Everything changed as a result.

But really, what transformed the court in the long term was, as you indicated,
the Roosevelt appointees. Roosevelt had his first chance to appoint someone
right at the tail end of the court fight. Justice Van Devanter, one of the
conservatives who had retired toward the end of the court fight, was replaced
by Hugo Black, one of the great liberal jurists of the 20th century.

And once this happened, the conservatives on the court began to retire in
pretty short succession. They felt that the gig was up essentially. They saw
that the balance of power had been shifted decisively and they felt that
ultimately there was no reason for them to stick around. They were old, some of
them were sick, and so they begin to go. And by the time Roosevelt died in
1945, he had appointed eight of the nine justices on the Supreme Court. So it
was truly a Roosevelt court and it defined the second half of the 20th century,
or most of it anyway.

GROSS: Some people say we have the most conservative court since 1937, the year
when FDR tried to pack the court with liberals. Do you agree?

Mr. SHESOL: I think there's a strong argument to be made that this court is as
conservative in many ways as the court of the 1930s. There is an eagerness on
the part some of the conservative justices today to overturn many decades of
precedent, as we saw in the Citizens United decision, as we saw in the gun
control case last year - District of Columbia vs. Heller. There is what
conservatives would call an activism on the right on this court that really has
been unmatched by any conservatives on the court since the 1930s. So yes, I
think that's a plausible case.

GROSS: One of the parallels between FDR and Obama is that FDR had some of his
New Deal legislation overturned by the Supreme Court declaring it
unconstitutional. And I know there are many Republicans who would like to see,
for instance, health care reform be challenged in the Supreme Court and be
overturned by the Supreme Court, same with some financial regulation and
environmental regulation. Can you talk about the parallels you see?

Mr. SHESOL: Absolutely. I think what you had in the 1930s, what President
Roosevelt confronted was the reality that he could pass many things - much more
freely than President Obama is going to be able to in this environment. But he
could pass all manner of legislation. He had big majorities in both houses of
Congress. But ultimately, he had to run the gauntlet of the Supreme Court, that
these big changes in government and in the economy would have to be ratified by
the third branch of government. And that's very much true today.

President Obama fought a very tough battle over the last year and more over the
health care legislation. He managed, as we all know, to get it through the
Congress. But ultimately, the debate is not done and conservatives are carrying
that argument from the Congress into the courtrooms just as they did in the
1930s.

GROSS: FDR opposed the aging court. You said in 1937 the average age of a
Supreme Court justice was 71. And so Roosevelt's plan was to add a younger
justice for every justice over 70 who hadn't retired. Now, it's the liberal
justices who are the older justices. Best example being Justice Stevens, who's
turning 90 later this month and, of course, just announced his plan to retire
and will soon be replaced. So I just find that kind of an ironic twist.

Mr. SHESOL: It is an ironic twist and I think that it also points up some of
the problems with Roosevelt's argument, that age does not define ideology. And
even though Roosevelt looked at what he called the nine old men of the Supreme
Court and suggested that the older justices were falling out of touch with
reality, the oldest justice on that court in the 1930s was Brandeis, the great
liberal justice. And this was pointed out with glee by many of Roosevelt's
appointments. How can you tar all of the old justices with the same brush, they
said, and when the oldest on the court is Brandeis?

So you don’t hear anything like that today. You hear concern on the part of
progressives in this country that Justice Stevens and the other liberals are
more likely to leave the court soon than any of the conservatives are. But I
think we’ve, I think, come a long way since the 1930s when that argument was
made so forcefully by Franklin Roosevelt.

GROSS: If you’re just joining us, my guest is Jeff Shesol. He's the author of
the book "Supreme Power: Franklin Roosevelt vs. the Supreme Court."

Let's take a short break here. This is FRESH AIR.

(Soundbite of music)

GROSS: If you’re just joining us, my guest is Jeff Shesol. He's the author of
the new book "Supreme Power: Franklin Roosevelt vs. the Supreme Court." And
it’s about how FDR tried to pack the court with liberals in 1937.

Now you were a speechwriter for President Clinton. And since you’ve worked as a
speechwriter, and since you’ve studied FDR's speeches in writing this book -
and I should mention, you’ve also written a book called 'Mutual Contempt" about
the bad relationship between President Johnson and Robert Kennedy. I want to
talk with you a little bit about speechwriting. How do you think speechwriting
has changed from FDR's time to now? I mean one thing I'll say is that I think
presidents are much more conversational now in their speeches.

Mr. SHESOL: I think that's right. I think most presidents are more
conversational. But I think that actually looking back, it’s really Roosevelt
who developed the conversational style of speechmaking.

GROSS: The fireside chat thing?

Mr. SHESOL: Absolutely. And I think Reagan, who grew up very fond of Roosevelt,
considered himself, as many people know at the time, as a Roosevelt Democrat.
Reagan really absorbed this. And so the conversational style that Reagan had in
office and that I think subsequent presidents, including the president I
served, President Clinton, this really goes back to FDR.

I think one of the big changes between speechmaking - presidential speechmaking
in Roosevelt's time and our time is that the demands are so much greater on our
current presidents. We expect them to have something to say about just about
everything every day.

And so we expect to be hearing a couple of speeches by President Obama each and
every day. And if he doesn’t fill this slot in the news then someone else will
fill it and he will be attacked for creating a vacuum, as he was last summer
during the health care debate.

And so, Roosevelt was able to take much more care, I think, than presidents are
able to do today because he had more time, really, to think about the kind of
speech that he would deliver and the words generally would have more impact
because the speeches were less frequent.

GROSS: I wonder if you think Sarah Palin has in any way changed the style of
political rhetoric or political speechmaking.

Mr. SHESOL: Well, in many ways Sarah Plain's style as a speaker is a natural
extension of the conversational style. It's hard to imagine politicians in
other areas being willing to speak in such a constantly folksy way. Really, she
can give a policy speech in the same now-trademark manner with all of her sort
of catch phrases and affectations and so forth. And I think that she likes to
take on her critics.

She's not particularly interested in playing out an argument and building a
coalition for a particular idea. A lot of it is aimed essentially at
entertainment and drawing people in and making them really appreciate her as a
vehicle for these ideas and it's very effective in that regard. But I do
wonder. And I guess only time will tell whether this will wear a little bit
thin over time.

She has already, at least in my view, and I know not everybody would subscribe
to this, but she already sounds very much like a self-parody. And it’s an open
question whether she can continue over the years to give speeches like this
that sound essentially the same and don’t really say terribly much about the
issues confronting the country. Can she rely on the same kinds of catch
phrases, the same sorts of zingers, and the same kinds of bumper stickers and
soundbites to describe her positions on the issue? I'm a little dubious about
the sort of staying power of that kind of approach.

GROSS: Now you were a speechwriter for President Clinton. What are some of the
speeches that you wrote or co-wrote?

Mr. SHESOL: I worked on a couple of a State of the Union addresses. Those
tended to be committee-writing processes, as you would probably expect. I
worked with him on his convention speech in 2000, on his farewell address and
at least a couple of hundred other speeches during the three years that I was
there on really pretty much any issue under the sun.

And it was a terrific process working with him. Not simply because it was an
honor to get to work with the president toward the goals that he was seeking,
but particularly because it was a very collaborative process. I think in the
previous White House or two, speechwriting tended to be done by - through a
series of layers and proxies and so forth and speechwriters didn’t really get
to interact much with the president.

And President Clinton really liked to work directly with his speechwriters. He
gave us a lot of access to him where we would sit down and work through the
drafts together, which was invaluable. It's not simply that it was exciting to
get to sit down with President Clinton, it was that you had a level of exposure
to the way he thought, and this would really inform the speeches. There was a
richness, I think, to the speeches because you understood all of the context as
it existed in his mind.

GROSS: If I asked you to say one of the lines that you are proudest of that you
wrote, would you be unable to answer that because of...

(Soundbite of laughter)

GROSS: ...a speechwriter's code of secrecy?

Mr. SHESOL: Speechwriter/client privilege. You know, it's tough to isolate it
for a couple of reasons. One is it actually goes back to a question that you
had a few minutes ago, and that is the conversational style of a lot of these
speeches. We tended not to strive for the sorts of lines that would be carved
in granite on the walls of the Clinton Library.

Certainly, every speechwriter wishes that he or she were more like Ted Sorenson
and that we were writing lines for the ages. But really, you have to write for
the person who's going to deliver the speech. And President Clinton had a
wonderful, as he still does, a wonderful conversational style - a very
persuasive manner of speaking. And he didn’t respond well when you tried to put
him in a JFK box or you tried to make him sound like somebody that he wasn’t.

And so there were a lot of lines that we wrote that were very effective in the
moment. They were effective in room and I think in the country. But again,
they're not going to wind up in Bartlett's, generally.

GROSS: So they're not: Ask not what you can do for your country.

Mr. SHESOL: No. What we used to call reversible raincoat sentences.

(Soundbite of laughter)

Mr. SHESOL: No. He would tend to undercut those. You know, he really was
concerned that his speeches really sound like him. And so when you gave him a
line like that, that really called attention to himself and seemed like a great
piece of speechwriting, we always used to think of the old Soviet proverb, that
the tallest stalk of wheat is always the first to get cut down.

Any line in a Clinton speech that called attention to itself in that way was
the first to get a big line through it with his black pen. He would just cross
them out and move on. And it's not that he would never take a soundbite from
you, but if you were trying to use his speech to impress future generations and
to call attention to your cleverness, he wasn’t going to let you do it.

GROSS: Can you think of a...

Mr. SHESOL: He would do it himself.

GROSS: Can you think of an example of a line of yours that was a little too
writerly that got struck down?

Mr. SHESOL: Well, I'd written a speech for an East Room event in which
President Clinton was announcing a series of grants that he was giving to local
police departments to buy more bullet-proof vests. And this is not really an
occasion for grand rhetoric, but as a speechwriter I gave it my best. And I
wrote a line that said: The line of fire will always be a dangerous place, but
today we make it a little less dangerous for those brave enough to walk the
line.

Again, that one's not headed for the wall of the Clinton Library, but I was
doing my best with a pretty non-rhetorical event. And President Clinton saw
this and saw that it looked very much like a soundbite that had been written
for him by somebody else. And so when he stood and gave the speech he said: The
line of fire will always be a dangerous place - I mean, you know, even if you
put on one of these bulletproof vests, you can still get shot in the leg and
bleed to death.

(Soundbite of laughter)

Mr. SHESOL: But today we make it a little safer for those brave enough to walk
the line. So he taught me a little bit about the art of undoing a soundbite.

GROSS: Well Jeff Shesol, I want to thank you so much for talking with us.

Mr. SHESOL: Thanks for having me.

GROSS: Jeff Shesol is the author of "Supreme Power: Franklin Roosevelt vs. the
Supreme Court." You can read a chapter on our Web site, freshair.npr.org.
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'The T.A.M.I. Show': A Groundbreaking '60s Concert

TERRY GROSS, host:

All-star reviews in the early years of rock 'n' roll were varied grab bags, but
none were like "The T.A.M.I. Show," which featured Chuck Berry, The Beach Boys,
Marvin Gaye, Lesley Gore, The Rolling Stones, Smokey Robinson and the Miracles,
The Supremes, James Brown and more.

Filmed in October 1964 at the Santa Monica Civic Auditorium, the lineup
included performers who weren't yet stars, like The Supremes and The Stones,
and those at the peak of their fame, like Lesley Gore and Jan and Dean.

The filmed performance has never been available outside theaters until now.
Critic Milo Miles is very pleased to review the first official DVD release of
"The T.A.M.I. Show."

(Soundbite of song)

Unidentified Man (Musician): (Singing) (Unintelligible)

MILO MILES: The early '60s were a time of big ideas and big projects, and
television producer Bill Sargent was a man of the times. He had a new filming
technology called Electronovision, a precursor of digital cameras, and he
decided to showcase it with an all-star rock 'n' roll concert documentary. The
performances were given the clumsy title Teenage Awards Music International and
the catchy acronym "The T.A.M.I. Show". However, Sargent ran out of funds and
lost all rights to his project almost immediately, and it remained the most
famous never-seen music show for decades.

The theatrical trailer for "The T.A.M.I. Show" describes it as a once-in-a-
lifetime experience, and I'm glad to say that's an understatement. "The
T.A.M.I. Show" is a unique concert, never to be repeated. The closest parallel
I can think of to its power and range is John Hammond's "From Spirituals to
Swing" concerts of 1938 and '39, and they weren't filmed.

The look of "The T.A.M.I. Show" was also groundbreaking and influential. The
bonus commentary from music critic Don Waller and director Steve Binder
delivers a host of backstage tidbits and fascinating comments. Binder says what
you want out of a filmed concert is the view from front row center, with no
weird angles, and edits only when there's a reason to do so.

And this is what you get with "The T.A.M.I. Show." The audience-view
perspective is a tradition that continued when Binder later directed "Elvis:
The '68 Comeback Special," and you can see it in outstanding latter-day concert
films like Talking Heads' "Stop Making Sense." Binder also offers overdue
homage to the lively effect of go-go dancers and tells you which one is Terri
Garr as she dances past Marvin Gaye.

(Soundbite of song, "Hitch Hike")

Mr. MARVIN GAYE (Singer-Songwriter): (Singing) Now I'm going to Chicago; that's
the last place my baby to see. Hitch hike. Hitch hike baby. Hitch hike baby.
I'm packing up my bags, gonna leave this old town right away. Hitch hike. Hitch
hike girl. Hitch hike baby. Gonna to find that girl now if I have to hitch hike
around the world. Hitch hike. Baby. Baby, ooh.

MILES: There are a few snags in the cavalcade of glories. Marvin Gaye nails his
performance, but with repeat views you notice that, as always, he was horribly
tense on stage. Billy J. Kramer and the Dakotas is the only blah act on the
bill, but milquetoast they are. And you wish garage rockers The Barbarians had
been able to feature their slightly later single, "Are You a Boy or Are You a
Girl?"

But I'd like to underscore three key performances. If I was trying to explain
Lesley Gore to somebody, I would direct the person to her "T.A.M.I. Show" set.
She was the biggest star of the show, barely 18 and coming off a string of four
Top 10 singles. Despite her shellacked flip and dowdy suit, Gore seethes with
leather-jacket girl-group defiance. She equals not just The Shangri-Las but
Sleater-Kinney with her readings of "You Don't Own Me" and "It's My Party."

(Soundbite of song, "It's My Party")

Ms. LESLEY GORE (Singer): (Singing) It's my party, and I'll cry if I want to.
Thank you. Cry if I want to, cry if I want to. You would cry too if it happened
to you. Well, now, nobody knows where my Johnny has gone. But Judy left the
same time. Why was he holding her hand when he's supposed to be mine? It's my
party, and I'll cry if I want to, cry if I want to, cry if I want to. You would
cry too if it happened to you.

MILES: And then there's The Beach Boys. Their control-kook father kept this
footage away from the world for decades, and it was a great disservice to the
band, because I've never seen them so comfortable with each other on a stage.
You want to see Brian Wilson happy and in full voice? "Surfer Girl" is the
grail.

(Soundbite of song, "Surfer Girl")

THE BEACH BOYS (Music Group): (Singing) Little surfer little one made my heart
come all undone. Do you love me, do you surfer girl surfer girl my little
surfer girl? I have watched you on the shore standing by the oceans roar. Do
you love me do you surfer girl surfer girl surfer girl, surfer girl, surfer
girl.

MILES: Finally, the undeniable consensus is that this is James Brown's single
most overwhelming performance on film. The Motowners all have more of an act
than the rockers at this stage, but Brown goes beyond. This wasn't spontaneous
spasms or mere acting. Brown had learned from Southern gospel services, and
what he offered was an ecstatic ritual — minutely choreographic but utterly
heartfelt. A passion play of the soul brother reborn and reborn,
indestructible. How do you get to transcendent possession on stage? Practice,
practice, practice.

(Soundbite of cheering)

(Soundbite of song, "Please, Please, Please")

Mr. JAMES BROWN (Musician): (Singing) Please, please, please. Please, baby,
please don't have to go. Baby please, please, please don't have to go. Honey
please. Don't go. I love you so. Please, please, please don't. Baby, you know
you broke my heart when you went away.

GROSS: Milo Miles reviewed the DVD release of "The T.A.M.I Show." He lives in
Boston.

You can download podcasts of our show on our Web site, freshair.npr.org.
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Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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