Atlanta tri-weekly journal. [volume] (Atlanta, Ga.) 1920-19??, 1923-01-20
HARDING HESITATES
IN MOVE To MIME
TEIV|VESSEAN JUDGE
BY DAVID LAWRENCE
neased Wire Service to The Journal. -
(Convritht 1921

(LcaSed wire service 10 Inc JouIHul't
Copyright, 1929
WASHINGTON. Jan. 1S.-Presi-
dent Harding has decided to with
hold from the senate the nomina-
ton of Judge Z. Z. Sanford, of
Tennessee, as associate Justice OF
the supreme court of the United
States Whether it will ever be
sent to the senate seems doubtful.
but quite apart from that are the
circumstances which have influence
ed Mr.. Harding to hesitate, clrcum-
stances that are unique II not I'M
precedented in American history.
It's the old story of the separa-
ton of powers-the drawing OF
sharp lines of cleavage between the
executive, legislative and judicial
branches of the government. For
there is a good deal of criticism OF
Chief Justice Taft because of the
part he has been playing in the Sc
lection of judges for the supreme
bench. Some Republicans and sew
eral Democrats are known to have
expressed themselves quite frankly
on the subject and Mr.. Harding
knows their viewpoint, They have
the highest regard for Mr.. Taft and
sympathize with his desire to have
efficient colleagues, but they ques-
ton the propriety of his taking
an active part in the process of Sc
lection which they hold is purely
an executive action with the con-
sent of the upper house of the ma
tional legislative body.
When Mr. Taft recently appeared
before a committee Of congress an
gave his views on the Importance
of passing a bill providing twenty
seven additional judges 10 take care
of the congested state OF the Amerl-
can judiciary, speeches were made
declaring it was improper for
member of the bench to attempt to
influence the legislative branch o.
the government.
Taft's Influence
This passed off, however, without
any complaint to the executive.
Things were not improved when the
senate received the nomination CT
Pierce Butler. of Minnesota, Demo
crat, TO be associate justice of the
supreme court. Most of the men
on Capitol Hill are of the impression
that neither Senator kellogg nor
Senator Nelson recommended Mr..
after a consultation between Chief
Justice Taft and President Harding.
This feeling of opposition to the
choosing of personnel for the SUI
preme court by a member of the
court developed further intensity
when it was reported in the press
that President Harding would noni'
nate Judge Sanford, of Tennessee,
Republican, to fill the vacancy
caused by the resignation of Justice
Pitney.
For one thing, Judge Sanford was
appointed to the bench with the in
dorsement of Mr.. Taft in 1908. and
senators say he was recommended
to Mr.. Harding by Mr.. Taft for the
highest court in the land. The capt.
toll credits Mr. Taft with having
picked Judge Sanford. Every indi-
cation pointed to his nomination. At
first it was reported that Senator
Shields, of Tennessee, would oppose
confirmation, but he denied that and
has said that if Judge Sanford was
nominated he would be confirmed.
The question has therefore turned
on the wisdom of sending Judge San
ford's name to the senate at all. The
Progressive bloc in the senate has
Iy opposed Mr.. Taft when he was
president and conducted their in
surgency chiefly against what they
termed his )c@servatism. They re-
gard him as a conservative on the
bench. and fear that President Har-
ding will fill the bench up with too
many conservatives. If Mr.. Har-
ding consults the conservative ele-
ment on the supreme bench, natural
ly he sill have conservatives rec
OQueneted to him just as the Hber-
49,. aggressive members, like JUS
tisST Candeis and Justice Oliver
WefSteTl Holmes, if asked, naturally
select men of their way of thinking.
How Senators Feel
It's the principle of the thing,
therefore, Which is causing the con.
troversy. The feeling of many senA
tors is that the judiciary should not
be consulted but should be kept free
from influencing either the execu-
tive or legislative branches of the
government. President Harding is
believed to have. felt that there was
no Improperly In asking the chief
Justices advice, not only because
Mr.. Taft knows the needs of the
bench, but because, as president of
the United States, the latter develop
ed an acquaintance with some of the
outstanding figures in the American
baT. Never before had there been
a chief justice who had Mr.. Taft's
experience as president of the
United States. In fact. Mr.. Taft
has the unique record of sitting
alongside members of the supreme
court whom he appointed to office
when he was chief executive. I'm
less the senate movement against
his participation in the selection of
associate judges is arrested he VIII
have exercised more individual in
f1uence on the makeup of the SUI
preme court than any man in Amer
lean history