The National tribune., 1910-07-14
THE SUPREME COURT.
An Unprecedented Condition.
The Court Embarrassed by Ill
ness and Death-No Appoint.
ments to Be Made Until Con.
gress Meets.


preme Court The sudden death of
Chief Justice Fuller, at Sorrento,
Maine, reduces the membership of the
Court again to seven active members.
TheIn1ost important litigation, in some
senses, since the civil war, is awaiting
decision. The" Court is badly. divided.
Two of its members haev died since the
Tobacco Trust case, the Standard Oh
case and the Corporation tax case were
argued 1t is plain that the reargu-
ment, whfch Chief Justice Fuller an
nouneed shortly before the Court an
nounced its Sumer recess till October,
cannot take place in October as ar
ranged. For it is now practically i'm
possible for the President to complete
the membership of the Court again till
next December.
NominalIy there is but one vacancy
in the Court of nine members, and that
is the vacancy caused by the death OF
the Chief. But this does not tell the en-
tire story of the Courts embarrassment.
The illness of Mr.. Justice Moody, in
Massachusetts, for the last year, has
reduced the Court to eight working
members. AS is pretty well understood,
once a Justice of the Supreme Court is
nominated and confirmed, it is practi-
cally impossible to remove him or to
bring about his retirement. He cannot
be impeached, except for some kind of
1nalfeasance or other misconduct.
Congress and the President did the
best they could to assure full Court
when the reconvening time comes in
October. The President nominated
Gov. Hughes of New York, and the
Senate confirmed him. He will take the
oath of Office in October and become a
fun fiedged Justice. thereby. Congress
also enacted d law enabling Justice
Moody to retire within five months, if he
so elects. upon full pay. He did not
choose to-4retire before Congress ad-
journed, and it remains to be seen
whether he will choose TO retire before
the middle of November, which is the
limit Congress put upon him.
But the President will have to name a
Chief Justice and, perhaps, also an As
sociate Justice before there can be again
a bench of nine members to dispose of
these important cases. The business
and industrial world waits upon the de-
cisions as to the constitutionality of the
Sherman antitrust law, which is in
volved in the Tobacco Trust and Stand
ard Oil cases. There is also widespread
interest in the business world over the
corporation tax law. The evidence that
the Court is badly divided over the con-
stitutionality of those laws adds to the
uncertainty, and in some measure is
responsible for the halt upon returning
prosperity. These decisions will be fun
danIental to hundreds of great corpora
tiOns. Their officials had hoped for de-
cisions late this year Now it is hardly
probable that the cases can be decided
before well along into the Winter of
1911. The condition is, regarded as es-
pecially unfortunate in many respects.
Phe President has authority to nomi-
nate Federal Judges Of all grades dur
1ng a recess of Congress. The Senate,
being given confirming power, which
means that no Federal Judge can take
his seat permanently till the Senate has
approved of his nomination, is stoutly
opposed to judicial appointments dur
Eng recess of Congress. Such recess
appointments would enable Judge to
take his place upon the bench where
upon the argument is made in his be-
half. when the President sends the NOM
4nation to the Senate, as he must event.
ualfy. do, that it is embarrassing to the
man himself for the Senate to refuse to
confirm.
men for the Federal bench who were
notsapproyed by the Senate. There was
one instance in North Carolina, that be-
came of some note, and another in Ala
bama- 1t created so much opposition
sentiment that it is unlikely any Presi-
dent for many years will again attempt
to,make recess appointment of a Fed
erai Judge. The feeling in the Senate
is SO strong that it is probable the Sen
ate would refuse to confirm any Justice
of the Supreme Court who was given a
recess appointment.
But President Taft believes thorough
1y in the right of the Senate to voice its
approval of judicial nominations with
out the case having been previously
Drejudiced, and he would not make a
recess appointment. He said only re-
Gently that under no circumstances
would he give a recess appointment
even to a Circuit Judge, much less to a
Supreme Court Justice.
Therefore. Supreme Court nomina-
tions must wait till Congress convenes
again, which will not be till next De-
cember, quite two months after the Su-
Drenie Court assemblies for its October
term The President, to, be sure, could
cau the Senate in extra session. That is
done at the beginning of every new Ad-
1ninistration for the purpose of con-
frmiug nominations, but such extra
sessions always follow Immediately the
termination of regular session of Con-
gres1.
The Senate would undoubtedly be In
angry mood should the President call
81 together in the Autumn, and after all,
st will mean a wait OF only two or three
months for the decision in the big cases
mentioned. And again. It might be
doubtful whether Justice Moody would
be ready to indicate by October whether
he intends to retire. There Is no au-
fh0rity to make him retire, and he Will
want TO wait the full time, perhaps, to
determine whether he is ever to be able
20, resume active work upon the bench.
Thus. IL seems very improbable that the
president will sanction call of the Sen
ate to an extra session in late September
or early October for the purpose of put
ting in the necessary nominations Ia
make full bench.
Any number of Justices up to five
Constitute a quorum of the Court, and
consequently the Court can proceed
during October and November with 9TH
er- cases against the day when the va
cancies are filed. Unless there be de-
vef6pments which decide the President
10 call the Senate in extra session
which, as already stated is not probable
flls Court of six or seven Justices will
work through the months of October
and November and up to the Christmas
recess, and about the beginning of the
new year the vacancies will have beer
filled.
Speculation is lively over the names
of the new Justices. OF course, the
Chief Justice is the more important IN
popular estimation, altho he has only
one vote upon the bench, just like his
associates. He sits at the center Of the
bench and has precedence over all hi:
eight colleagues without regard to Length
of service. Associate Justices often re.
tire when they reach the age of 20 years
or have served at least 10 years, as the
law requires. A Chief Justice. accord.
ing to the traditions of his office, does
not retire. but serves for the entire
tod nf II afc 70 of nfraat ion q