Evening star., 1939-02-12
Ro0sevelt>SenatOrial Courtesy
Feud May Bring Only Discord
Roberts Case Writes Latest Chapter in Long Book
of Disputes, With Slim Chance of
Reforming Senate
By J. A. O'Leary.

moved, but only for the publication Of
the vote. While the Senate still has the
right to order the doors closed on l.om-
ination when majority deems 1t ad-
visable, appointments have been con-
sidered in open session during the past
nine years.
In the current dispute Senator Ebert
D. Thomas, Democrat, of Utah. ane Of
the most scholarly men in this Congress,
has come to the defense Of the Senates
vote last Monday, declaring that lit was
decided not on the basis of an interpreta-
ton Of senatorial courtesy, whatever that
may mean, but on the basis of consti-
tutional right and constitutional duty"
Regardless of what may be the legal
definition of the phrase advice and ocn-
sent of the Senate" Senator Thomas OBJ
serves that I'VE know from the practice
of our Executive in the very first admin
istration that Washington assumed that
advice meant advice, both in regard to
appointments and in regard to me Iati-
fication of treaties"
Met With Senate on Treaties.
washington came and actually met
with the Senate in regard to treaties"
Senator Thomas continued The old
general was not used to the equality Lec-
essary in open deliberation and look CT.
fense at some of the questions asked by
Senators and, on personal basis, re-
fused to come before the Senate again,
but in regard to appointments he never
assumed that the appointive power
vested solely in him.
Il have read at least one message from
President George Washington to the
Senate wherein he presented a second
name even before the Senate had taken
action on the first, and wherein he
stated that in case the advice and con-
sent be not given to the first, he offered
the second. Where alternate names
were presented, the presenter could
never have assumed sole appointive
power. The meaning of by and with
the advice and consent has better
authority in the practice of our first
President than in the legal definition
brought from England or taken from
the Colonists.''
The Utah Senator makes the point
that President Washington was fresh
from the Constitutional Convention, In
which the wording of the Constitution
had been debated. Agreeing that a
President "of course, cannot take advice
of 96 Senators about appointments to
Office in 48 States; therefore, he must, of
necessity, take the advice of those who
are close to the problem. It is as much
a constitutional right that this advice
be sought and where possible followed,
if the aims of the fathers are to be car
ried out, as it is duty for the President
to name on his own responsibility per-
son where agreement cannot be reached,
and leave to the judgment of that body
under our Government which has the
right to pass the final judgment. to act"
Borah introduced New Note.
A year ago Senator Borah, Republi-
can, of Idaho introduced a resolution
which would have put the Senate on
record in favor of abolishing the prac-
tice of rejecting nominations on the
ground that they are personally offen-
sive or personally Objectionable to a
Senator" The resolution died without
action at the last adjournment, however,
and has not been reintroduced this year.
Another historic case occurred when
President Andrew Jackson nominated
Isaac Hill of New Hampshire to post
in the Treasury, and senatorial courtesy
figured In the rejection of the nominee.
prociHpYot TockSnr1 fhoro1rn,,
of the New Hampshire Senators Secre-
tary of the Navy, which paved the way
for the appointment of Mr.. Hill as a
Senator from New Hampshire
President Mckinley is said to have
laid down a policy at the outset of his
administration of following the recon-
mendations of Senators in making ap-
pointments
1t was thought during one period of
history that the Senate would apply the
courtesy doctrine only when the objec-
ton came from Senator of the same
party as the administration. This also
has been departed from.
In discussing the present situation,
Senator Byrd, Democrat, of Virginia
sums UP his view of the question as
follows:
1T is well to recall that the power of
appointment to such Offices as district
judge is a joint power divided equally
between the President and the Senate
1t is unavailing for either the President
or the Senate to seek virtually the sole
power in the matter. This the Senators
from Virginia have no desire to do and
have not DONE
Hints Discord Fostered.
A hint that controversies like the pres
ent one are more likely to spread discord
than to change senatorial custom and
procedure was given by Senator Thomas
when, in discussing the issue in the
Senate last Thursday, he observed:
Presidents will continue to be made
and unmade in the actions of the Senate
OF the United States. To attempt to
coerce is fatal, to attempt to outwit is
disastrous, to attempt to stand upon a
right which is not based upon fact or
history results only in introducing into
government the confusion of an other
wise harmonious relationship especially
essential to democracy wherein the
rights of all must of necessitv he reroo.