Evening star., 1937-07-29

RAISING Tor he
Senate to reject his nominee. since
the appointee would be wearing the
robes of the court and participating
IN the hearings and decisions. To
dlsqualify man who had once sat
on the bench-though this has hap
pened once-might raise the question
of the validity of the decisions rem
dered while he was sitting on the
court.
The legal questions involved would
seem to be easy to clear up by a
simple reference to the Constitution
itself, which says:
The President shall have power to
MI up all vacancies that may happen
during the recess of the Senate. by
granting commissions which shall ex-
pire at the end of their next session."
The language is plain that the Pres
ident's power to make recess appoint
mentS extends only to vacancies that
may happen during the recess of the
Senate When Justice Van Devanter
retired recently, the Senate was not
in recess. The vacancy occurred While
the Senate was in session. Mr.. Roose-
welt has the power, moreover, to con-
vene a special session of the Senate
at any time before next October, when
the Supreme Court term begins. and
even if there is a slight delay in Octo-
Der the court may continue to func-
ton with eight members. inasmuCh
as six is a quorum under existing law.
Six Justices Quorum.
Reading the judiciary act of 1869.
which is the present law fixing the size
Of the Supreme Court, the following
language will be found:
The Supreme Court of the United
States shall consist of Chief Justice
Of the United States and eight asso-
ciate justices, any six Of whom shall
constitute quorum
The law does not say the court
may consist" of nine Justices but
definitely says the number shall be
nine. Likewise the Constitution itself
uses mandatory language with refer
ence to nominations to the Supreme
Court. 1t says:
He (the President) shall
nominate. and by and with the advice
and consent Of the Senate, shall ap-
point judges of the Supreme
Court"
This clearly means that the ap-
pointing poWer-the President-must
Cooperate with the confirming power
the Senate-to fill vacancies in the
Supreme Court. To fail to make a
nomination now while the Senate is in
session would be to refuse to permit
the normal constitutional process to
operate and would be a neglect of
Z public duty.
Custom on Nominations.
The custom heretofore has been that
when nomination failed of confirma-
tlon at the end of session of Congress,
a recess appointment would be given,
but it would last, of course, only till
Congress had reasonable chance to
act, and If the nomination remained
unacted upon it would be Withdrawn.
This, however, relates to inferior Off
GERS of the Government. At no time
has vacancy in the Supreme Court
which happened during the time Con-
gress was IN session failed to result in
nomination to fill such vacancy, The
only recess appointment to a Supreme
Court position appears OF have oc-
Cured In June, 1895, after Congress
had adjourned the previous March.
Judge Rutledge was given a recess
appointment by President WASHINGTON.
subsequently when Congress recon-
Vened the nomination of Judge Rut-
ledge, who had joined in the work of
the court, was rejected by the Senate.
The Senate has acted unfavora bly,
that is, has refused to confirm or has
postponed consideration or caused
nominations to be withdrawn-in %
cases. This is about one fifth of all
the justices who have sat on the
highest bench. Confirmation usually
takes time, rarely less than 10 days
and often more than 30 days. If Mr..
Roosevelt doesn't want to prolong the
present session of the Senate, he can
call an extra session for mid -Septem-
Der, as the Supreme Court does not
meet till the first Monday in October.
The President in his fireside chat
on March 9 last stated that he was
eager to appoint new justices now"
and he emphasized the word now"
1t seems probable, therefore, that there