Evening star., 1937-08-03
When Is a Vacancy?

the Executive, in filling 4 vacancy on
the bench OF the Supreme Court, would
be compelled to submit such an appoint
ment to the Senate for confirmation be-
fore the appointee, If confirmed, could
take his seat on that bench. Especially
Is that clear when the vacancy on the
bench has occurred during a session of
Congress. From such q reading and
Interpretation of the Constitution there
has never until now been any dissent,
Yet 1t Is now asserted by some OF the
Senate supporters of the Presidents poll
cles and measures that he may make
such an appointment during a recess of
Congress and that the man so named
may take his seat on the bench pending
confirmation. And the Attorney Gen.
eral, 1t Is stated, has given an opinion
that such course may be followed.
The language of the Constitution re-
garding such appointments, which has
never been heretofore seriously ques-
toned In the meaning Of its provision,
is as follows: The President shall have
the 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 their next ses-
sion" That is perfectly clear. When a
vacancy happens" while the Senate is
not in session the President may make
an appointment, subject to subsequent
confirmation, the appointee meanwhile
serving in the office to which he has been
named.
But it Is now argued, with a strange
perversity OF reasoning, that the word
happen" used in the Constitution,
means something other than to occur"
that 1t means to happen to exist" In
other words, 1t is seriously argued that
if it should so chance that vacancy that
has happened" while the Senate is in
session has not been filled while the
Senate has been sitting, and continues
to exist through such failure to appoint,
with confirmation, 1t does In fact hap
pen to exist"
Let the dictionary reveal the true
meaning Of happen: ITO come or
occur, to exist or be produced, by chance
or without previous expectation; befall;
chance; to take place, to come to pass"
When Justice Van Devanter resigned
and retired, few months ago, the va
cancy on the Supreme Court hap
pened.' 1t then occurred, took place,
came to pass. The Senate was then,
as now, in session. There was there
fore opportunity to submit to the Senate
nomination to fill the vacancy. The
President has chosen not to make such
. nomination. His failure to send the
name of his appointee to the Senate for
confirmation does not cause the va
cancy, still existing, to happen during
recess of the Senate, If meanwhile the
Senate adjourns and the vacancy, not
filled in due order, continues.
Any reasoning to the contrary of the
plain meaning of the constitutional pro-
vision is perverse. 1t is obviously an
attempt to justify the selection of
member of the Supreme Court who may
take his seat upon the bench during
recess Of Congress and there serve with
out confirmation, perhaps only for brief
period, perhaps indefinitely, In case the
court does not itself refuse to permit
him to sit in judgment, through its own
Interpretation Of the Constitution, Of
which 1t Is the guardian.
Wherefore the delay? Why this CHI
cane? Why is selection not made now,
while the Senate is in session, thereby
permitting 1t to confirm-as it would
presumably confirm-the Presidents ap-
pointmept? Is there fear that 1t might
not confirm? Has the President In
mind a selection that would not meet
with approval? Is it contemplated to
name new justice who, though inca
pable of confirmation if the Senate we're
in session, would take his place on the
bench during recess of Congress at the
Fall assemblage of the court, and, being
tolerated by the court despite the irregu-
larity of the appointment, proceed to
pass judgment upon the constitutionality
of statutes?
These questions arise Immediately and
definitely upon the disclosure that the
Attorney General has advised the Presi-
dent that he may make recess ap-
pointment and, by logical presumption,
that such appointee may take his place
on the bench in the Fall and proceed
to sit in judgment upon the validity of