Evening star., 1937-07-29
Court Appointments.

President Roosevelt has asked Attorney
General Cummings whether he can law
fully appoint member of the Supreme
Court during a recess of Congress, when
the vacancy occurred while Congress
was in session. He has not explained
the reason for desiring to make recess
appointment. The Senate is now is ses-
sion and could receive and act upon a
nomination for the Supreme Court.
Either the President wishes more time
to make his selection OF the Supreme
Court appointee or he wishes to appoint
the new justice without the immediate
advice and consent" of the Senate. The
vacancy occurred on June last, nearly
two months ago. The President may
possible candidates for the Office during
the intervening weeks. Congress, it is
expected, will remain in session for
another fortnight. In that time the
Chief Executive might reasonably be
expected to pick his man for the court.
Six months ago he proposed to Congress
he should be given the power to appoint
Six additional justices OF the Supreme
Court. He would be more than human
If IN all that time he had not considered
the qualifications Of men whom he might
put on the supreme bench.
If the Senate adjourns before an
appointment to the Supreme Court is
made and the President then makes a
recess appointment the new justice
would take his place on the bench when
the court reassembles in October. He
would become a member OF the highest
court without the advice and consent"
OF the Senate, which is specifically
required by the Constitution. 1t is true
that when the Senate meets again in
January the nomination would then be
submitted to it by the President for con-
frmation. The appointment of the new
justice and his service on the bench, how
ever, would have become accomplished
facts months before. The Senate would
have the power to reject the nomination
at that time. II 1t saw fit.
Although the President has made no
such statement. 1t has been suggested
that he does not wish to submit his selec-
ton for the Supreme Court to the Senate
for scrutiny and debate right on the
heels Of the fierce battle over his court
bill. 1t does not appear credible that the
President would take any such position.
Under the Constitution appointments to
the Supreme Court are to be made by the
President. The language Of the Consti-
tuition is: land he (the PresidenD shall
nominate. and by and with the advice
and consent of the Senate, shall appoint
Ambassadors, other public ministers and
consuls, judges of the Supreme Court"
etc. The intent clearly Is that the Sen
ate shall give It's approval to the NOM
inees before they are appointed" and
take Office.
That part Of the Constitution relating
TO filling vacancies which happen" dur
ing the recess of the Senate, it is true,
has been construed in the past to give
the President authority to appoint to the
Supreme Court, and some Presidents
have followed that construction. 1t says:
The President shall have power to fill
up all vacancies that may happen during
the recess of the Senate by granting
commissions which shall expire at the
end of the next session." What does
happen" mean? Does it mean vacancies
that occur during recess, or vacancies
that exist during recess?
There seems no good reason at all why
the Senate should not take under con-
sideration the Presidents nominee for
the Supreme Court before he assumes
Office, if confirmed. To avoid that con-
sideration by the Senate by a recess
appointment would not only avoid the
intent of the Constitution, but would also
be tantamount to declaration by the
Executive that he, and he alone, is to
decide this matter of who goes on the
highest court.