Taking on Theodore Roosevelt

by Harry Lembeck

  He learned the law at Cincinnati Law School but gained no practical education or training. Classes and studies left more than enough time for other work, and he became a cub reporter with the Cincinnati Commercial, assigned to the court beat. He used this experience to fill in the gaps by watching how the law worked in the real world of trials and hearings. When he left the world of ink, he had little interest in lawyering, and when President Chester A. Arthur offered him the position of collector of internal revenue for Cincinnati, a position that had nothing to do with the law and would advance his career not at all, Taft jumped at it.33

  FORAKER MEANWHILE STEPPED AWAY from politics to build a “prosperous” law practice. Keeping a toe in the water, he was a delegate to the 1884 Republican National Convention in Chicago. There he met Theodore Roosevelt, whom he found to be without discretion. Mrs. Foraker had a vivid memory of Roosevelt standing on his chair, shaking his fist, and conspicuously demonstrating what she called, “a very beagle's flair for political tactics.”34

  Roosevelt supported Vermont senator George F. Edmunds for the nomination, while Foraker managed Ohio senator John Sherman's campaign. For either to prevail, Senator James G. Blaine of Maine had to be turned aside. With their interests coinciding, they worked well together on an early test of Blaine's strength, the election of Negro John R. Lynch of Mississippi as the convention's temporary chairman. Julia would say it was a black man who first brought Roosevelt and Foraker together.35

  In 1885 Foraker ran again for governor, and this time he won. A year later, a seat opened up on his old bench, the Superior Court in Cincinnati, one of the trenches in which lawsuits are battled out. Its judges were elected by the voters, but when a vacancy occurred the governor appointed someone to fill the rest of that term. These appointments were valuable to governors, who could use them to repay existing political debts or create new chits to be redeemed in the future. The man on whom fortune and a governor smiled could expect to keep the job as long as he wanted it. No one knows why Foraker picked Taft. Taft's biographer Henry Pringle suggests the governor may have decided it would look good in the upcoming gubernatorial campaign to make a nonpolitical appointment. Maybe it was affection for the younger man. According to Mrs. Foraker, theirs was a friendship that went back to when court reporter Taft covered Superior Court Judge Foraker. “There was an instant sympathy between the twenty-one year old collegian and the thirty-two year old magistrate. Foraker liked Taft's smile, liked his agreeable manner, liked his type of mind.”36

  So the appointment was made. Taft put on his judicial robes. He, his father, and his brother sent notes to Foraker warmly thanking him.37 Foraker responded cordially with a note of his own. He now had a Taft family IOU in his pocket.

  EVEN BEFORE UNION VICTORY in the Civil War, Ohio courts and judges were uneasy with the Black Laws. In a case in which two whites were accused of murdering a black man, the question was whether the victim's obviously black wife could testify against them. The court noted the legal definition of a white person (one with more than 50 percent “white blood”) and held even persons with clearly dark skin could qualify and be allowed to give testimony.38 Further help came from state officials, especially those in Columbus. Democratic governor George B. Hoadly shut down a skating rink closed to blacks. Members of the House of Representatives protested on behalf of a black colleague not allowed to eat in a Columbus restaurant.

  Foraker opposed the Black Laws and, after he was elected governor in 1886, got the Republican-controlled state legislature to repeal the last of them. Foraker later said their end “accord[s] to the colored people of Ohio…that full measure of manhood to which they are entitled.”39 In his 1887 campaign for reelection, he emphasized his support for repeal and solidified his black support.40 It would not fade away.

  By 1888 Foraker had been governor for two terms and was a force on the national stage. The year before he spoke in New York City, and in what was called a stem-winder, he brought people to their feet cheering him. Without declaring himself a candidate, Foraker passed James G. Blaine, the unsuccessful 1884 Republican presidential nominee and another undeclared candidate in 1888, and became lead dog for the 1888 nomination. The New York Sun was giddy over him. Better watch Foraker, it warned his rivals; he might snatch the nomination for himself.41 Before the delegates met, Blaine declared himself out of the race. He went so far as to be out of the country during the convention, traveling through Scotland with Andrew Carnegie. Mrs. Blaine found the dreary Scottish summer cold and wet (“It rains…every day and at all hours…. And it is so cold. When we go out driving we bundle up, as we do in Augusta only in winter.”).42 Back in Chicago, things were just as chilly for the supporters of the disinterested Senator Blaine. Ohio's John Sherman, in his third try, seemed to have captured the lightning in a bottle. With Blaine out of the way and a united Ohio delegation headed by Foraker, the way seemed clear to him. But it turned upside down again.

  Ohio may have been united for Sherman, but not strongly so. Some delegates yearned for Blaine. Others looked to William McKinley. And Foraker was miffed. As leader of the Ohio delegation, he expected to make the nominating speech. Sherman would not hear of it. When the time came for nominations, Foraker would instead make the seconding speech, and as he strode to the platform to perform his assigned task, a floral wreath with “No rebel flags will be returned while I am governor” stitched with red flowers against a white background was placed at the speaker's stand for all to see. These were the words flung at President Cleveland by Governor Foraker when Cleveland, as a gesture to help end sectionalism, thought it was time to return captured Confederate regimental flags held by Northern states.43 This defiance had become part of the Foraker lore. Appearing visibly embarrassed, Foraker had the display removed before he began to speak, but the lethal effect of these delicate blooms lingered along with their fragrance. His speech was a great one, but when balloting came, Sherman's support dropped like petals on dying flowers. After three ballots, he was in the lead but still 172 votes short of what was needed. His goose was in the oven but not yet completely cooked. On Saturday morning, a fourth ballot was held; Benjamin Harrison gained momentum, while Sherman lost strength.44

  And then came the unexpected. Julia told the story in her memoirs. “At 2 AM, on Monday Foraker and I, very sound asleep, were awakened by a knock on the door. It was Kurtz, my husband's secretary. [The Blaine men] were outside waiting in the hall. They wanted to hold an immediate conference with my husband. Well, the only place to receive them was in that bedroom, the only thing for me to do was to leave, and the only place for me to go was the bathroom. So there I hid.”45 From there she heard what went on. Blaine men “crowded into the bedroom.” They told Foraker they wanted “to throw the entire Blaine strength to [him] on Monday morning if [he] would accept the nomination for President.” He turned them down.

  On Monday, the vote went to Benjamin Harrison, as it would in November. It was a Republican year, and it could have been Foraker's. Julia ends the story, “Husbands know best, that is understood; at the same time…I tremble to think of the unfolded future had Foraker been in a position to say ‘yes’ to that two-in-the-morning offer of the presidential candidacy.”46 Eighteen years later, in 1906, people wondered if his time had finally come.

  BEING A TRIAL JUDGE WAS fine, but Taft still dreamed of being a justice on the US Supreme Court. In July 1889 Justice Stanley Matthews, another Cincinnatian, died, and President Harrison offered the seat to yet another lawyer from Cincinnati, Thomas McDougal, but he declined. Taft—only thirty-two years old, never elected to any public office, his only judicial experience in superior court, and about his only qualifications that he taught constitutional law and was a Republican—saw a chance and jumped at it. His most important advocate was Governor Joseph Foraker, who wrote President Harrison and even spoke to him on Taft's behalf.47 But the summons from the White House never came; Harrison selected David Brewer, a fellow Yale alumnus. But Harrison remembered the young man from
his birth state, and when he needed a solicitor general, then the counselor to the attorney general and the one usually representing the government before the Supreme Court, Taft got the job as a consolation. Much of the credit went to Governor Foraker, who now considered himself to be Taft's guide and mentor and again had gone to bat for him with Harrison.48 When Taft was appointed, Foraker sent his congratulations and added, what “lies beyond that office is the other position to which I can clearly see that it leads…the bench of the Supreme Court.”49

  In Washington, Taft met and became friends with civil-service commissioner Theodore Roosevelt. Seven years later, Taft petitioned his fellow Ohioan, President William McKinley, to appoint Roosevelt assistant secretary of the navy.50

  In the meantime, McKinley appointed Taft to the Sixth United States Circuit Court of Appeals in Cincinnati. Taft's wife, Helen (“Nellie”), wanted him to stay in Washington and in touch with Washington “bigwigs,” but risking her displeasure Taft accepted the appointment and returned home. He liked being a judge again and saw it as a Supreme Court résumé builder. Nellie didn't like it and let him know how she felt. She had a sharp tongue that pierced her husband across the room, but he never felt any pain, and she always apologized. “I know that I am very cross to you, but I love you just the same.”51 In 1900, when Taft received a telegram from President McKinley, Nellie was overjoyed. She sensed something was in the works and she and Taft would be getting out of the judicial rut. She would be frustrated.

  JUDGE TAFT SUPPORTED THE war in Cuba in 1898 because he felt it was unavoidable after the sinking of the USS Maine. After the war and President McKinley's agonized decision to Westernize and Christianize the Philippines, someone had to go there to do it. The telegram that so excited Nellie Taft dashed her hopes. McKinley wanted Taft to take the job. A constitution had to be written, laws drafted, an administration and civil-service bureaucracy set up, and an uprising suppressed. The army under General Arthur MacArthur for too long had been running the show, and to some extent it had to be suppressed too. Taft hesitated. This required skills he was not sure he had. And it would take him across the globe and off the judicial track to the Supreme Court he thought he was on. McKinley parried this objection by promising to return him to his career path when he returned home.52 Taft accepted the job and replaced Cornell University president Jacob Gould Schurman, who, back in Ithaca, stayed in touch with Joseph Foraker, class of ’69.53

  Expecting the job to last no more than six to nine months, Taft and Nellie would stay in the Philippines more than four years, during which time McKinley was assassinated and Roosevelt took his place in the White House. Taft tamed the rebels and the American army. “He established a civil-service system, a judicial system, English-language public schools, a transportation network, and health care facilities. He also negotiated with the Vatican…to purchase 390,000 acres of church property in the Philippines for $7.5 million,” which he resold “by way of low-cost mortgages to…Filipino peasants.”54 This solved the problem of inequitable land ownership and persuaded Spaniards in the church hierarchy in the Philippines to go home and make room for Filipinos.

  Taft came to love the islands and their people, and they loved him. His job there became his mission. An offer of a vacant seat on the Supreme Court, his life's dream, could not tempt him to leave. He refused it, citing the need to stay in Manila to finish the job he agreed to do. “Looking forward to time when I can accept such an offer but even if it is certain that it can never be repeated I must now decline.”55 The offer was repeated three months later; again he said no.

  WHEN TAFT ACCEPTED THE Philippines post, Foraker had been in the Senate for two years. His appearance, bearing, and demeanor were nothing if not senatorial. It was said he was the most handsome politician in Ohio, “a very handsome man, over six feet in stature, weighing slightly over two hundred pound, with as fine a shock of iron-gray hair as was ever on a man's head; possessed of brilliant talents and great personal charm…a smart constitutional lawyer, and an audacious fighter, [who] displayed…patience in exposition, alacrity in compromise, poise under attack,” and even withering wit.56 (When someone spoke reverently of William Jennings Bryan, who had been called the “Boy Orator of the Platte,” Foraker reminded people “the River Platte was only six inches deep but with a mouth six miles wide.”57) He joined comfortably with the Senate's Old Guard, the Republicans who narrowly interpreted the Constitution as creating a limited federal government and judged legislation cramping the growth of business enterprises with government regulation by this standard. His law practice had at its core the representation of corporations and other large business entities, and in the Senate he would resist Roosevelt's efforts to pull the teeth from corporate interests. Most especially did he oppose building the presidency and its executive agencies into a stronger and, as he would see it, a more meddlesome branch of government.

  After working together at the 1884 Republican convention, Roosevelt and Foraker continued to get along rather well. Each man had a combativeness the other admired, so long as it was asserted against other men. If they can be believed, a shared attitude of defiance is what motivated Foraker to seek the Senate and Roosevelt to take the nomination for vice president.58 Foraker said, “If they had not made up a combination to prevent me from going to the senate, then I would not want the position. Now I have made up my mind to go after it.”59 According to Foraker, Roosevelt told him he accepted second spot on the ticket in 1900 because “he had learned the administration did not want him.” Foraker can take partial credit for encouraging Roosevelt to agree to it by persuading him he would strengthen the ticket.60 When President McKinley asked Foraker not to support Roosevelt, Foraker said he had to because of the commitment he made. This suggests that as late as the 1900 election, the Roosevelt-Foraker relationship was calm, cordial, even friendly. Foraker wrote that before the 1904 election, they had no serious differences over public affairs.61 But right after, they found themselves at opposite corners in the ring, discerning the nation's problems and the ways to solve them.

  DURING OHIO'S ODD-YEAR campaign of 1905, Foraker spoke in Bellefontaine to oppose President Roosevelt's proposal to stop the rebates and other tricks railroads used to discount shipping costs to big shippers by giving the Interstate Commerce Commission power to set rates. Foraker thought rate setting was “too complicated, delicate” for a government agency to take on and just might be unconstitutional.62 Roosevelt's scheme was introduced in Congress as the Hepburn Bill, and its final version passed the Senate in May 1906 with only three votes against it, one of which was Foraker's (the only Republican). It's easy to see why Roosevelt was happy with the Hepburn Act and Foraker was not. A railroad, a private enterprise, no longer could decide what it could charge for its services. That decision was now made by the government. What is not easy to see is why Foraker didn't swallow hard and accept it, like every other Republican senator. In an address to the Senate on May 18, two days before it passed the Hepburn Bill, he did not back down: “I have acted as I have spoken and voted as I have spoken, in accordance with my own judgment and my own convictions.”63 Foraker would pay for his convictions and his vote. No one could say he had not been warned. Two weeks after his Bellefontaine address, even before the Hepburn Bill was introduced in Congress, the New York Times reported, “Friends of the Administration have…let it be known they will oppose Senator Foraker's activities in Pennsylvania, as well as Ohio [and he] will find himself in the attitude of a foe of President Roosevelt.” Looking to 1908 and the competition for the Republican presidential nomination, the New York Times predicted, “From now until the convention of 1908…Mr. Taft [will act] as the spokesman of the President and Mr. Foraker as the representative of the opposite element in the party.”

  Roosevelt was angry at Foraker because he could not see the Ohio senator as a man with another point of view, only as one standing in his way, and as Justice Oliver Wendell Holmes Jr. learned when he dissented in the Northern Securities case and
voted against applying antitrust laws as Roosevelt wanted, Roosevelt “couldn't forgive anyone who stood in his way.”64 Roosevelt called those who opposed him for “asserting and exercising a genuine control…over those great corporations” his “enemies…the railroad senators” (author's emphasis).65 That would include Foraker, no longer just an opponent, now an enemy. Woe betide a Roosevelt enemy.

  ROOSEVELT ORDERED TAFT BACK to Washington to be secretary of war in February 1903. It is strange that a man who did not share Roosevelt's appetite for war and never appreciated the martial values that Roosevelt found so necessary for strong men and strong nations would become, of all things, head of the War Department. One reason Taft accepted was because the Philippines were under its jurisdiction and he could stay involved.

  Taft would spend much of his time on assignments that had little to do with the War Department: he became Roosevelt's chief agent, confidant, and troubleshooter in foreign affairs and made several voyages around the world (traveling more than any other cabinet member); supervised both the construction of the Panama Canal and affairs in the Philippines; for a while was the provisional governor of Cuba; and, after the death of Secretary of State John Hay, he acted as secretary of state during the Morocco crisis in March 1905 and took part in the negotiations among France, England, and Germany to resolve it.66 And there was the politics he would be thrown into. “It seems strange that with an effort to keep out of politics and with my real dislike for it, I should thus be pitched into the middle of it.”67 Nellie was happy; he would be back in Washington with the “bigwigs.”