Evening star., 1937-08-03

preme Court for N
a whole term of ,
the court, which
runs from October to June.
The precise point at issue-When
vacancy must be filled-has never
been passed upon by the Supreme Court
Itself and there are as many good
legal grounds for arguing that Attor-
ney General Cummings has rendered
the wrong advice as to suggest that his
opinion is conclusive.
The Constitutions language is as
follows:
The President shall have power to
fill up vacancies that may happen dur
ing the recess of the Senate, by grant,
ing commissions which shall expire
at the end OF their next session"
Hinges on Word Happen"
The question is: What does the
word happen" really mean? 1t is in
sisted by the administration that the
word may be construed to mean all
vacancies that may happen to exist
This Interpretation, however, arises
from a peculiar set of circumstances
in a given case which in reality does
not apply at all to the present situ-
alton Back in 1880 q vacancy oc-
Cured in the Office Of United States
district attorney and in those days the
circuit judges had power to fill the
vacancies. Henry Farrow was the in
cumbent. When his term expired,
circuit Judge appointed him to f1ll the
vacancy. Then the President came
along with another appointment.
namely, John Bigby, and the nomina-
ton was sent to the Senate while that
body was in session, but failed OF
action. A dispute arose as to the
power of the President to make
recess appointment for Mr.. Bigby.
Clearly this is different from the cir
cumstances existing today with respect
to Justice Van Devanter. who retired
from the Supreme Court on June 2,
during session Of the Senate, and no
nomination has been made by the
President.
decided by Judge Woods for the Cir
cult Court, northern district Of Geor-
gia. constituting really the highest
Federal court ruling available, the
opinion Of the court, instead Of sup
porting, really rejects the reasoning
OF those who insist that happen"
means in all cases happens to exist"
pernqc nf fha
Opinion Cited.
Judge Woods quoted with approval
the opinion of William Writ Attorney
General under President Monroe.
Said Mr. Writ:
The Constitution does not look to
the moment Of origin Of the vacancy
but to the state OF. things at the point
of time at which the President Is
called upon to act. Is the Senate in
session? Then he must make a nomi-
Then the President must fill the va
cancy by a temporary commission.
This seems to me to be the only con-
struction of the Constitution which
Is compatible with It's spirit, reason
and purpose. while at the same time
1t offers no violence to its language,
and these are. think, the governing
points to which all sound construction
looks"
Judge Woods pointed out that this
opinion was concurred in by Roger
Taney when he was Attorney Gen.
eral under President Jackson, the
same man who was later Chief JUS
tice. But Mr.. Taney used the idea
OF happen to exist" to cover an en-
tirely different set of circumstances
than prevail today. He declared that
the clause In the Constitution was
intended to provide for those va
cancies which might arise from acci-
dent, and the contingencies to which
human affairs must always be liable"
Mr.. Taney's point was that if by some
mischance a nomination was omitted
by President through no deliberate
intention, then a vacancy might be
said to happen to exist. He added:
IT it falls out that from death, in
advertence, or mistake, an Office re-
ouired by the law to be filled, is in
recess, found to be vacant, then a va
cancy has happened during the recess
and the President may AL it,"
New Issue Involved
This reasoning was tied closely to
the notion that nomination sent to
the Senate might fail Of confirmation
and that recess appointment would
then be in order. This power Is not
questioned now, but the new issue is
whether President, fully cognizant
OF the existence Of a vacancy, refuses
to send nomination to the Senate,
makes a recess appointment and then
refuses to withdraw the appointment
II 1t Is not confirmed by the Senate
and keeps his appointee on the Su-