Evening star., 1939-02-09
The Political Mill
Senator Glass Draws Unpretty Picture
Of Appointment Designed to Effect Purge

President with wishing to purge"
the junior Senator (Mr. Byrd next
year land the senior Senator Of
Virginia a year later should I live
longer than the intriguers hope" In
fact, Senator Glass levelled at the
President fiat accusation that he
was using the appointment of
judge to discredit the Virginia Sena-
tors, and apparently was prepared to
use Federal patronage in Virginia
generally to accomplish his purpose.
1t is not pretty picture, which the
Virginia Senator draws.
The President in his letter to
Roberts, on the other hand, seeks
to raise the question to a constitu-
tional plane. and discusses the right
of the President to appoint judges
whom he desires, irrespective of the
wishes and recommendations of the
Senators from the States where
those judges are appointed. This
right he upholds. He denounces
the so-called senatorial courtesy
which permits Senator or a pair of
Senators to call upon the rest OF
the Senate to reject a nomination
on the ground that the nominee is
personally obnoxious" to the Sena-
tor or the brace of Senators, as the
case might be. There is nothing, he
said, in the Constitution mention
ing senatorial courtesy.
The second paragraph Of Section
2, Article 2 Of the Constitution cov-
ers appointments of judges and other
officials. 1t reads as follows: He
the PresidenD shall have power,
by and with the advice and consent
of the Senate. to make treaties, pro-
vided two-thirds of the Senators
present concur: and he shall nomi-
nate, and by and with the advice
and consent Of the Senate, shall ap-
point ambassadors, other public min
listers and consuls, judges of the Su-
preme Court. and all other officers
Of the United States, whose appoint
ments are not herein otherwise pro-
vided for, and which shall be estab-
lished by law; but the Congress may
by law vest the appointment OF such
inferior officers. as they think proper,
in the President alone, in the courts
Of law. or in the heads of depart
ments."
Provision Was a Compromise.
The debates and reports OF debates
OF the Constitutional Convention
reveal the fact that the appoint
ment Of Federal judges was dis
cussed many times; that some of the
trainers wished the Legislature" to
make the appointments; that others
wished the second branch" Che
Senate) to make the appointments,
and that still others wished the
Executive to appoint. The para
graph just quoted was compromise,
giving both the President and the
Senate hand in the matter. Those
who argued against appointment
OF the Judges by the President
urged that 1t might give the Presi-
dent absolute control of the judici-
ary.
James Madison's notes on the
Constitutional Convention say that
Ben Franklin wished the dele
gates to suggest other modes of
choosing judges besides by the legis-
lature and by the executive. He
would mention one" writes Madison,
which he had understood was prac-
ticed in Scotland. He then in q
brief and entertaining manner re-
lated a Scotch mode. In which the
nomination proceeded from the
lawyers, who always selected the
ablest Of the profession in order to
get rid of him, and share his prac-
tice among themselves. 1t was here
he said the interest Of the electors
to make the best choice, which should
always be made the case If possible"
Under the Constitution, Congress
might if it wished vest the selection
of judges of the inferior courts in
the courts, by law, or in the head Of
the Department Of Justice. But 1t
does not seem likely that it will