Evening star., 1937-07-31
Filling the Court Vacancy
Failure of President to Name New Justice Before
Congress Adjourns Seen Dangerous

opinion whether it would be legal for
him to make the appointment after
the session OF Congress ends.
The difference between appointment
now and appointment after the session
Of Congress ends has some impor-
tance. II the appointment is not made
until after the session ends. then 1t
cannot be confirmed until the next
session. which does not meet until
January. In the meantime however,
the Supreme Court resumes its Sit
tings in october.
If Mr.. Roosevelt should make his
appointment after the session of Con-
gress ends, would the new appointee
sit with the court in October. without
waiting for confirmation? II the new
appointee should do that, and If there
after the Senate should refuse con-
firmation an awkward situation would
have been created. The new appointee
would be in the position Of having sat
on the court before his title to his
seat was perfected The condition
might raise awkward questions about
or court hearings held, at a time
when there was on the bench justice
whose title to his seat turned out to
be imperfect.
Court Seen Embarrassed.
II the new justice were not ap-
pointed until after the session ends.
and if he should, without waiting con-
f1rmation, assert right to sit on the
court, would the court feel called upon
to question his right? Undoubtedly
would be embarrassed
On the other hand, if Mr. Roosevelt
makes the appointment after the ses-
sion ends, and If the new justice, out
OF sense Of propriety, refrains from
trying to take his seat until after he
is confirmed in January, then the
court would sit for more than three
months with one vacancy. That con-
dition would make ironic Mr.. RooSe-
velt's frequently and vociferously made
assertion that the court does not work
fast enough, that it ought to have
to take long vacations.
One can see reasons why Mr.. Roose-
welt should prefer to defer the ap-
pointment until after this session of
Congress ends Some Of the reasons
are in a way meritorious some less 80.
1t might reasonably be that Mr.. Roose-
Welt would prefer not to add the bust
ness OF confirming q Supreme Court
justice to the work Of Senate already
crowded. MI. Roosevelt may feel that
If he makes the appointment now
he must make one that is 80 clearly
meritorious and acceptable that it
would not give rise to controversy, and
confirmation would come promptly
without prolonging the session Of Con-
gress.
If one were suspicious-and much
Of Washington Is inordinately suspi-
cious just now-the suspicion might
take the form Of apprehending that
Mr.. Roosevelt wants to make an ap-
pointment of a radical and unusual
kind, such as would stir up commo-
ton. Possibly this suspicion might be
accounted for by Mr.. Roosevelts long
attitude toward the court. Possibly
it might be accounted for by stories
floating about Washington from time
to time to the effect that Mr. Roosevelt
might appoint a justice who is lay
man, not a lawyer. These stories,
however, are not traceable to Mr..
Roosevelt or any one authoritatively
close to him. They are the sort of
story that arises by kind of spon-
taneous combustion in such an atmos-
phere as has existed in Washington
for some time.
tCopyriRht, 1877