The daily union. [volume] (Washington [D.C.]) 1845-1857, 1855-05-13
AppoINTMENr OF JUDGE sCARBURGH.

or 10 the doubt suggests to the constutonaity OF
the appointment Of Judge Scarburgh. Another cores
pondent Of the Lategencc under the signature Of ~
has in reply explained correctly the construction and e
feet Of the constitution in this respect but as the same
question after having been repeatedly determined is from
time time making it's appearance it may not be unsea-
sonablc to resate particularly the authorities and
the reasoning applicable this part Of the constitution
The facts in the present follows
The Office Of Judge Of the court Of claims created du
ring the of Congress- and of the class in which,
according the received construction nominations should
in the first instance made the Senate Judge Lump
kin nominated and confirmed of the judges at
the very of session. and his commission sent to
him but be declined accept the appointment and de-
clned, Of course in the Of the Senate
Judge Scarburgh has been appointed by the Pres
dent fill the vacancy and has been commissioned In
the FORM hold until the end Of the session Of
the Senate.
The provisions Of the constitution applicable to the SUBJ
ject are these:
.The President &c. shall nominate and by and with the
advice of the Senate shall appoint ambassadors
other public ministers and consus judges OF the Supreme
Court other officers Of the United States whose
ponents herein otherwise provided for, and which
shall be established by law, de- The President shall have
power fill all vacancies that may happen during the
at the end of their next session"
Now, &c" suggests that under the circumstances of the
case the place in the court of claims which Judge
Lumpkin appointed mot thereby filed ut was
necessary that he should accept otherwise the office is not
ed and his declining to accept during the recess of the
Senate docs vacancy such contemplated
by the clause of the constitution
II is he Observed in the first place. that the consttu-
ton does not require that an Office should have been fill
ed the necessary previous condition Of the right Of the
President to make temporary appointment vacancy in
the Of the Senate That idea is infer
of ASSUMED construction and is not the actual Ian
guagc of the constitution
In the second place. if the constitution had established
any such condition. (which it has not) still the assumed
consequence would follow from the premises for it
might well be any possible construction Of the words
vacancies which may happen during the recess that
these words should be intended describe in which
the President by nominating the Senate and issuing
commission the party confirmed had exhausted all the
constitutional means Of filing Office during the
son Of the Senate.
But independently Of all ths it is wesettled rule Of
constitutional that the words vacancies which may
happen during the recess signify vacancies which hap
pen to exist III there happen to be any vacancies du
ring the recess
This construction of the constitution unequivocay
expressed by Mr. Writ in the following extracts from his
opinion OF October 49, 1923:
"The meaning Of the consultation result in
this that the President alone cannot make APP
poinet to those Offices that to render the appointment
permanent it must receive the consent Of the Senate but
that whatsoever vacancy shall exist which the public inter-
require to be Immediately filled, and in filing which
of the Senate be Immediately
asked because of their the President shall have the
power Of filling 1t by appointment to continue only until
the Senate shall have passed upon IT, in the language of
the constitution, till the end of the next session.
The substantial purpose of the constitution to keep
these Offices ed and adequate To this purpose
intended be conveyed But II the President shall not have
power ill vacancy thus circumstanced the powers
inadequate the purpose the Of the consu
ton will be sacrificed to dubious construction of its letter.
Put the of vacancy occurring in office held in
distant part Of the country the last day Of the Senate
session. Before the made known to the President
the Senate rises the Office may be important one the
vacancy may psrayzo whole line Of action in essential
branch Of Internal police the public interests may i'm
periously donand that it shall be Immediately filed.
the vacancy happened during the session Of
the Senate and If the Presidents to be limited to
such only happen to during the Of
the Senate the vacancy IN the put continue
however runous the consequences may be to the public
of this character might be easily multiplied and il
would seem TO me highly desirable to avoid construction
which would produce effects extensively perncous, if
be done with just respect the language of the
stution.
.sNow if we interpret the word happen being merely
equivalent to happen 70 exist (as think may lcgt
matey DOB then Ill the vacancies which, from any casualty
happen time when the Senate cannot be consult
ed filing Them may be temporarily filed by the Pres
iden the whole purpose of the constitution complete
ly accomplished.
The casualty which has prevented the cooperation Of
the Senate may be such In the alphabetically stated
above II may arise from various other the sudden
dissolution Of that body by convulson of Nature
the falling Of the Building In which they hold their
sions sudden and destructive postilence, disabling
destroying Of that body such invasion Of
the enemy renders their reassembage elsewhere prao
cable inexpedient and thousand other which
cannot be oreseen II may arse too from their rejecting
nomination by the President in the last hour their session.
and inadvertently rising before denomination be made
In all these there guilt either the part
Senate Of the President but by casualty the va
cancy happens continue and 10 exist recess and the
public goodnay, the safety Of the require
be forthwith filed Looking the of case
why should not the President have tho power I'LL In
reason perfectly immaeria when the vacancy
first arose. for whether It during the session the
Senate during their Il equally requires to be filed
The constitution does look 10 the moment Of the origin
Of the vacancy but the state OF things ut the point
time at which the President called to act IL the Sen
ate in session. Then he must make nomination to that
body st In Then the President must all the
cancy by temporary commision.
Ths to the ouly construction Of the consttu
ton which compatible with it, spirit reason, and purpose
while at the time it offers violence is language
And these think, the governing points to which all
md ructio nlook