In 1938, Congress added a second judgeship for the Western District of Virginia. President Roosevelt, in defiance of the prerogatives of Virginia's Senators Glass and Byrd, gave a recess appointment to Judge Floyd Roberts of the Corporation Court for the City of Bristol. In the next session of Congress, the U.S. Senate, in defiance of President Roosevelt, shot down the Roberts nomination by a vote of 72-9. In place of Roberts, Roosevelt appointed the dean of the University of Virginia law school, Armistead M. Dobie, who was shortly thereafter appointed and confirmed to sit on the Fourth Circuit.
Of the power struggle between the branches of government, Time magazine supposedly wrote this, in its February 13, 1939 edition:
"Senatorial courtesy is the custom by which Presidential appointees 'personally offensive or obnoxious' to Senators from their State are not confirmed by the Senate. Last week Virginia's tart old Carter Glass and his junior colleague, Harry Flood Byrd, found obnoxious the appointment of Judge Floyd Roberts of the Corporation Court of Bristol to a Federal District judgeship. Reason: he had 'lent himself to a conspiracy,' of which the other partners were Governor James H. Price and Franklin Roosevelt, to flout the Glass-Byrd patronage prerogative. The Judiciary Committee thumbs-downed Judge Roberts, 15-to-3. The Senate concurred, 72-to-9. Franklin Roosevelt promised to write Judge Roberts a right interesting letter before making another appointment. Snorted Carter Glass: 'I think he'll send up a more objectionable one—if he can find it.'"