b"April 12, 1979\n\n79-24\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nPresidential Appointees\xe2\x80\x94Resignation Subject to the\nAppointment and Qualification of a Successor\n\nThis responds to your inquiry whether the head o f an executive agency\ncan submit a resignation to become effective only upon confirmation and\nappointm ent o f his or her successor. We believe that he can.\nThe submission o f such a resignation effective only upon the confirma\xc2\xad\ntion and appointm ent o f a successor does not limit, or impinge on, the\nPresident\xe2\x80\x99s powers. The head o f an executive agency is an executive of\xc2\xad\nficer; he serves at the pleasure o f the President and is subject to the Presi\xc2\xad\nd en t\xe2\x80\x99s illimitable removal power. Myers v. United States, 272 U.S. 52\n(1926). A resignation effective only upon the confirmation and appoint\xc2\xad\nment o f the successor, therefore, does not affect the President\xe2\x80\x99s power to\nremove the resigning officer prior to the appointm ent o f his successor.\nAn officer serving at the pleasure o f the President is removed by opera\xc2\xad\ntion o f law when the President appoints his successor by and with the ad\xc2\xad\nvice and consent o f the Senate. Blake v. United States, 103 U.S. 227, 237\n(1881); Parsons v. United States, 167 U.S. 324, 327 (1897); Quackenbush\nv. United States, 111 U.S. 20, 25 (1900); 39 Op. A .G . 437, 439 (1940).\nThis, however, does not render a resignation effective upon the confirma\xc2\xad\ntion and appointm ent o f a successor a meaningless tautology. To the con\xc2\xad\ntrary, this form o f resignation obviates a period o f vacancy in the office\nbetween the resignation and the appointm ent o f a successor.\nArticle II, section 2, clause 1, o f the C onstitution provides that the\nPresident shall nom inate and appoint by and with the advice and consent\no f the Senate officers o f the United States; Article II, section 3, provides\nthat the President shall commission all such officers. In Marbury v.\nMadison, 1 Cranch 137, 155-157 (1803), Chief Justice Marshall ex\xc2\xad\npounded on the three-step appointm ent process envisaged by the constitu\xc2\xad\ntional provisions. First, there is the nom ination by the President; second,\nthe Senate gives its advice and consent to the proposed appointm ent (con\xc2\xad\nfirmation); third, the President, having obtained the advice and consent of\n152\n\n\x0cthe Senate, makes his appointm ent o f the officer, who is then commis\xc2\xad\nsioned. It is apparent that the appointm ent process may consume a con\xc2\xad\nsiderable length o f time.\nWe have in the past examined the questions whether a prospective ap\xc2\xad\npointee to an office can be nominated and confirmed while the incumbent\nis still in office, and whether a resignation may be submitted to take effect\nat a future date. Both questions were answered in the affirmative. A copy\no f the memorandum on the subject is attached.\nBeginning with the earliest days o f the Republic, Presidents have sub\xc2\xad\nmitted nominations to the Senate and the Senate has given its advice and\nconsent to appointm ents while the incumbent was still in office. Attached\nmemorandum and Appendix III. Moreover, the President\xe2\x80\x99s power to\nnominate and the Senate\xe2\x80\x99s power to confirm are not dependent on the ex\xc2\xad\nistence o f an actual vacancy. Resignations were submitted and intended to\nbe effective at some future date. M emorandum and Appendix III. Judges\nhave submitted their resignations effective upon the appointm ent o f their\nsuccessors at least since the resignation o f Mr. Justice Gray o f the\nSupreme Court in 1902. M emorandum Appendix I. Also, this type o f\nresignation was not unusual in judicial resignations in the 1960s.\nIn 1975, President Ford accepted the resignations o f the Secretary o f the\nInterior and o f the Secretary o f Defense \xe2\x80\x9c effective upon the appointm ent\nand qualification o f your successor.\xe2\x80\x9d\nWe conclude that there is no legal obstacle to the resignation o f the head\no f an executive agency in the m anner you suggest. In order to avoid a\nvacancy in the office if, subsequent to the appointm ent and with the\nadvice o f the Senate, there should be a delay in the commissioning or the\ntaking o f the oath o f office, we would suggest that the resignation be con\xc2\xad\nditioned on the appointm ent and qualification o f the successor.\nJo h n M . H arm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\nAttachments\n\n153\n\n\x0cJuly 11, 1968\n\nMEMORANDUM\nRe: Power o f the President to Nominate and of the\nSenate to Confirm Mr. Justice Fortas to be Chief\nJustice o f the United States and Judge Thornberry\nto be Associate Justice of the Supreme Court.\nO n June 13, 1968, Chief Justice W arren advised President Johnson o f\nhis \xe2\x80\x9c intention to retire as Chief Justice o f the United States effective at\nyour pleasure.\xe2\x80\x9d In his reply, dated June 26, the President stated, \xe2\x80\x9c With\nyour agreement, I will accept your decision to retire effective at such time\nas a successor is qualified.\xe2\x80\x9d O n the same day Chief Justice Warren sent to\nthe President a telegram in which the Chief Justice referred to the Presi\xc2\xad\ndent\xe2\x80\x99s \xe2\x80\x9c letter o f acceptance o f my retirem ent,\xe2\x80\x9d and expressed his deep ap\xc2\xad\npreciation o f the President\xe2\x80\x99s warm w ords.1\nOn June 26, the President also submitted to the Senate the nominations\no f Mr. Justice Fortas to be Chief Justice o f the United States vice Chief\nJustice W arren, and o f Judge Thornberry, o f the United States C ourt of\nAppeals for the Fifth Circuit, to be Associate Justice o f the Supreme\nC ourt vice Justice Fortas. 114 C o n g r e s s i o n a l R e c o r d (daily ed. June\n26, 1968) S7834.\nQuestions have been raised as to the power o f the President to make and\no f the Senate to confirm these nominations. The primary objection is\nbased upon the assertion that there is at present no vacancy in the office o f\nChief Justice, and th at nom ination and confirmation o f Mr. Justice For\xc2\xad\ntas is therefore improper. Secondarily, there seems to be an objection that\nnom ination and confirm ation o f Judge Thornberry cannot be accom\xc2\xad\nplished in these circumstances because the office to which he has been\nnamed is not yet vacant. -\n\n1 See Appendix I, Nos. 1-3 for the texts o f the letters and telegram exchanged between\nChief Justice W arren and the President. The letters appear in 4 Weekly Com pilation o f\nPresidential D ocum ents 1013-14.\n\n154\n\n\x0cNeither objection appears to be well taken. The terms o f Chief Justice\nW arren\xe2\x80\x99s retirement, established in the correspondence between him and\nthe President, are that the Chief Justice\xe2\x80\x99s retirement will take effect upon\nthe qualification o f his successor.2 Judge Thornberry has been nom inated\nin anticipation o f the elevation o f Mr. Justice Fortas. As this m em oran\xc2\xad\ndum will show, it is well established that the President has power to\nnominate, and the Senate power to confirm, in anticipation o f a vacancy.\nThis power exists where it has been agreed that retirement o f an incumbent\nJustice or judge will be effective upon the qualification o f his successor.\nSuch power also exists where an incumbent Justice or judge is\nsimultaneously nom inated for elevation to a higher position.\nI.\nIt is not unusual for a Justice or judge to advise the President o f his\nintention to retire and to leave it to the President to propose a timing best\nsuited to prevent an extended vacancy and the resulting disruption o f the\noperation o f the court on which he sits. Nom ination o f a successor in such\ncircumstances is but one example o f the power to fill anticipated\nvacancies.\nThe more general power will be analyzed below, but it is instructive first\nto consider two directly pertinent instances for which docum entation is\navailable.\nMr. Justice Gray o f the Supreme C ourt advised President Theodore\nRoosevelt on July 9, 1902, that he had decided to avail himself o f the\nprivilege to resign at full pay, and added:\n* * * I should resign to take effect immediately, but for a doubt\nwhether a resignation to take effect at a future day, or on the ap\xc2\xad\npointment o f my successor, may be more agreeable to you.\nPresident Roosevelt\xe2\x80\x99s acceptance, two days later, contained the following\npassage:\nIt is with deep regret that I receive your letter o f the 9th in\xc2\xad\nstant, and accept your resignation. As you know, it has always\nbeen my hope that you would continue on the bench for many\nyears. If agreeable to you, I will ask that the resignation take ef\xc2\xad\nfect on the appointm ent o f your successor.3\nMr. Justice Gray died in September, before his successor, Mr. Justice\n\n2 The term \xe2\x80\x9c qualification\xe2\x80\x9d or \xe2\x80\x9c qualifies\xe2\x80\x9d refers in this context to the taking o f the two\noaths prerequisite to holding Federal judicial office, (1) the oath to support the Constitution\nrequired by Article VI, Clause 3 o f the Constitution o f all officers o f the United States, and\n(2) that required by 28 U .S.C . 453 o f each Justice or judge before perform ing the duties o f\nhis office.\n* See Appendix I, Nos. 4-5 for the pertinent passages o f the Gray-Roosevelt corre\xc2\xad\nspondence.\n\n155\n\n\x0cHolmes, took office (187 U.S. iii).4 The Memorial Proceedings in honor of\nMr. Justice Gray pointed out that \xe2\x80\x9c he submitted his resignation to take ef\xc2\xad\nfect upon the appointm ent and qualification o f his successor. So he died in\noffice.\xe2\x80\x9d See also Lewis, Great American Lawyers, Vol. 8, p. 163.\nM ore recently, Circuit Judge Prettym an advised President Kennedy on\nDecember 14, 1961, that he intended to take advantage o f the statutory\nretirement provisions o f section 371(b), Title 28, United States Code, and\ncontinued:\nThe statute prescribes no procedure for retiring; accordingly 1\nsimply hereby retire from regular active service, retaining my\noffice.\nThe statute provides that you shall appoint a successor to a\njudge who retires. Hence I am sending you this note.\nPresident Kennedy replied on December 19:\nIt was with regret that I received the notification that you were\nretiring from \xe2\x80\x98regular active service.\xe2\x80\x99 The way in which you\nphrased your letter left me with no alternative but to accept your\ndecision.\nA few days later, however, President Kennedy sent the following addi\xc2\xad\ntional note to Judge Prettym an:\nAs you know, I have announced that I intend to fill the vacancy\nwhich will be created when you retire from active service. How\xc2\xad\never, I hope you will continue in regular active service on the\nCourt o f Appeals for the District o f Columbia until your suc\xc2\xad\ncessor assumes the duties o f office. Your letter does not\nspecifically mention when your retirement from regular active\nservice takes effect, but I have been informed that you have no\nobjection to continuing in your present capacity until your suc\xc2\xad\ncessor is sworn in.\nI appreciate your willingness to continue for this limited period\nin order that the C ourt may not be handicapped for any time\nduring which a vacancy might otherwise exist.\nJudge Prettym an replied to the President that he was \xe2\x80\x9c glad to comply with\nyour preference in respect to the date upon which my retirement takes ef\xc2\xad\nfect. My notice to you was purposely indefinite.\xe2\x80\x9d 3\nJudge J. Skelly Wright was nom inated on February 2, 1962, confirmed\non February 28, and appointed March 30. He qualified on April 16, and\nJudge Prettym an retired as o f April 15.\nThe exchange o f communications between Chief Justice W arren and the\nPresident must be understood in the light o f these precedents. The Chief\nJustice advised the President o f his intention to retire, leaving it to the\n\n4 The circumstances surrounding the Holmes appointm ent will be discussed infra.\n' See Appendix I, Nos. 6-9 for the pertinent passages o f the Kennedy-Prettyman\ncorrespondence.\n\n156\n\n\x0cPresident to suggest terms o f retirement which would be suitable in allow\xc2\xad\ning sufficient time for nom ination and confirmation o f a successor\nwithout the disruption and over-burdening o f the remaining Justices\nwhich might result from an extended vacancy, in particular such a vacancy\nin the office o f the Chief Justice. The President suggested that the Chief\nJustice\xe2\x80\x99s retirement should take effect upon the appointm ent and\nqualification o f his successor. The Chief Justice agreed to this condition.\nIt is a condition o f retirement that was used with respect to the Supreme\nCourt in the case o f Mr. Justice Gray. It has been frequently resorted to in\nthe case o f other judicial retirements. (For a partial list o f retirements by\nFederal judges effective upon the appointm ent and qualification o f their\nsuccessors, see Appendix II.)\nThe effect o f this form o f retirement is that the Chief Justice remains in\noffice until the condition occurs; i.e., until his successor qualifies by\ntaking the oaths o f office.\nII.\nThe power o f the President to appoint Justices o f the Supreme C ourt,\nby and with the advice and consent o f the Senate, is specified in Article II,\nSection 2, Clause 2 o f the Constitution. It provides that the President shall\nnominate, and by and with the Advice and Consent o f the\nSenate, shall appoint Ambassadors, other public Ministers and\nConsuls, Judges o f the Supreme C ourt, and all other Officers o f\nthe United States, whose A ppointm ents are not herein otherwise\nprovided for, and which shall be established by Law * * *.\nArticle II, section 3 provides additionally that the President shall \xe2\x80\x9c Com \xc2\xad\nmission all the Officers o f the United States.\xe2\x80\x9d\nAs explained in Marbury v. Madison, 1 Cranch 137, 153-157 (1803), the\nconstitutional appointm ent process consists o f three m ajor steps:\nThe nom ination by the President;\nthe Senatorial advice and consent (confirmation); and\nthe appointm ent by the President, o f which the Commission is\nmerely the evidence.\nSee also 4 Op. A.G . 218, 219-220.\nThere is no indication in this early analysis o f the constitutional ap\xc2\xad\npointment process that a matured vacancy is a necessary prerequisite.\nNomination and confirmation to fill anticipated vacancies are consistent\nwith the constitutional plan, and have been frequent occurrences in our\nhistory.\nIt should be noted that anticipated vacancies may be grouped into two\ncategories: First, those that will take effect on a day certain; e.g., when a\nresignation is submitted as o f a specific date, or a statutory term is about\nto expire. Second, those that will take effect upon fulfillment o f a condi\xc2\xad\ntion; e.g., when the removal or elevation o f the incumbent takes effect, or\nthe appointm ent and qualification o f his successor. Nothing in the C on\xc2\xad\nstitution prevents advance nom ination and confirmation to fill either\n157\n\n\x0ccategory o f anticipated vacancies. Logic and experience, running from the\nearliest years o f the Republic to the present, support this conclusion.\nIf the Senate\xe2\x80\x99s power to confirm were conditioned on the present effec\xc2\xad\ntiveness o f the vacancy, there would continually be gaps in the holding of\nim portant offices. In all cases, nom ination, confirmation and appoint\xc2\xad\nment would have to wait until the incumbent leaves office. Interruptions\nin the discharge o f public business would necessarily result. The needs of\nprudent adm inistration suggest the unsoundness o f a constitutional inter\xc2\xad\npretation that would force this result upon every resignation or retirement\no f Presidential appointees.\nAs a m atter o f fact, from the earliest years the Senate has exercised the\npower to confirm nom inations to offices in which a vacancy in the near\nfuture is anticipated to take effect, by action o f the incumbent or o f the\nPresident, as the case may be. The first volume o f the E x e c u t i v e J o u r \xc2\xad\nn a l o f t h e S e n a t e , covering the years from 1789 to 1805, gives instances\nin which the Senate confirmed nominees in the following situations: To fill\na vacancy to be created by the prom otion o f the incumbent; to replace an\nofficial who desired to be recalled; to rename an officer whose term was\nabout to expire; to replace an official who had resigned as o f a day certain;\nand to replace an official about to be superseded. (For details as to these\nnominations, see Appendix III.)\nThis practical interpretation o f the C onstitution by the early Presidents\nand the Senate has been judicially supported in a num ber of Supreme\nCourt decisions holding that an officer who serves at the pleasure o f the\nPresident is ousted from his office when the President appoints a successor\nby and with the advice and consent o f the Senate. McElrath v. United\nStates, 102 U.S. 426; Blake v. United States, 103 U.S. 227, 237; Mullan v.\nUnited States, 140 U.S. 240, 245. These rulings clearly presuppose that the\nSenate has the power to confirm a nom ination while the incumbent is still\nin office.\nThe history o f the Supreme C ourt contains several examples o f actions,\nby Presidents and the Senate, to fill positions o f Justices and the Chief\nJustice in advance o f the effective date o f the resignation or retirement o f\nthe incumbent:\n1. Mr. Justice Grier subm itted his resignation on December 15, 1869, to\ntake effect on February 1, 1870. President G rant nom inated Edwin M.\nStanton in his place on December 20, 1869. Stanton was confirmed and\nappointed the same day, and his commission read to take effect on or after\nFebruary 1. However, due to his death on December 24, Stanton never\nascended to the Bench. See W arren, The Supreme Court\xe2\x80\x94 United States\nHistory (1937 Edition) Vol. 2, pp. 504, 506.\n2. Mr. Justice Gray resigned on July 9, 1902, effective on the appoint\xc2\xad\nment o f his successor (see, supra, pp. 4-5). On August 11, the newspapers\nannounced that Oliver Wendell Holmes had been \xe2\x80\x9c appointed\xe2\x80\x9d to succeed\nMr. Justice Gray. Bowen, Yankee from Olympus, 346. President Roose\xc2\xad\nvelt had in fact on that day given Holmes a recess commission, which\n158\n\n\x0csubsequently was cancelled. Holmes, who then was Chief Judge o f the\nhighest court o f Massachusetts, apparently did not want to serve without\nprior confirmation by the Senate. Holmes-Pollock Letters, Vol. I, p. 103.6\nAs shown above, Mr. Justice Gray died on September 15. The President\nnominated Holmes on December 2, the day after the Senate reconvened.\nThe nomination was confirmed two days later. J ou rnal of th e E xecu \xc2\xad\ntive P roceedings o f th e Se n a t e , Vol. XXXIV, pp. 5, 21. There can be\nno question but that President Roosevelt would have submitted the\nHolmes nomination to the Senate prior to Justice Gray\xe2\x80\x99s death, had the\nSenate then been in session.\n3. Mr. Justice Shiras submitted his resignation to take effect on\nFebruary 24, 1903. On February 19, President Roosevelt nom inated (a)\nCircuit Judge Day to be Associate Justice o f the Supreme C ourt, vice Mr.\nJustice Shiras; (b) Solicitor General Richards to be Circuit Judge, vice\nJudge Day; and (c) Assistant Attorney General Hoyt to be Solicitor\nGeneral, vice Solicitor General Richards. All three nominations were con\xc2\xad\nfirmed on February 23, one day prior to the effective date o f Justice\nShiras\xe2\x80\x99 resignation. J ournal o f th e E xecutive P roceedings o f th e\nSen a t e , Vol. XXXIV, pp. 202, 215.\n4. On September 1, 1922, Associate Justice Clarke tendered his resigna\xc2\xad\ntion as of September 18. On September 5, President Harding nom inated\nGeorge Sutherland to succeed Mr. Justice Clarke. The Senate confirmed\nhis nomination on the same day. 260 U.S. iii. The records o f the D epart\xc2\xad\nment o f Justice indicate that Justice Sutherland\xe2\x80\x99s commission was dated\nSeptember 5, \xe2\x80\x9c commencing September 18, 1922.\xe2\x80\x9d\n5. On June 2, 1941, Chief Justice Hughes announced that he would\nretire from active service on July 1. 313 U.S. iii. On June 12, President\nFranklin D. Roosevelt nominated Associate Justice Stone to be Chief\nJustice, and Attorney General Robert H. Jackson \xe2\x80\x9c to be an Associate\nJustice o f the Supreme C ourt, in place o f Harlan F. Stone, this day\nnominated to be Chief Justice o f the United States.\xe2\x80\x9d 87 C ongressional\nRecord 5097. The Senate confirmed Chief Justice Stone\xe2\x80\x99s nom ination on\nJune 27, and Associate Justice Jackson\xe2\x80\x99s nom ination on July 7. 314 U.S.\niv.7\n\n6 See also a letter o f August 21, 1902, from President Roosevelt to Holmes:\nA fter consulting one or two people, I feel that there is no necessity why you should be\nnom inated in the recess. Accordingly I withdraw the recess appointm ent which I sent\nyou, and I shall not send you another appointm ent until you have been confirm ed by the\nSenate, which I think will be two or three days after it meets. Meanwhile, I strongly feel\nthat you should continue as C hief Justice o f Massachusetts.\n7 Chief Justice Stone took his oath on July 3 (314 U .S. iv), but the delay in Justice Jack\xc2\xad\nson\xe2\x80\x99s confirm ation until July 7 had no relation to that fact. The Jackson hearings, which\ncommenced on the same day as the Stone hearings, took place over several days, June 21-30,\nand the Judiciary Com mittee reported on the nom ination June 30. On the same day the Jack\xc2\xad\nson confirm ation by arrangement was put over until the next session for conducting substan\xc2\xad\ntial business o f the Senate, which was July 7. 87 C o n g r e s s i o n a l R e c o r d 5701, 5756, 5759\n(1941).\n\n159\n\n\x0cThese precedents relating to Supreme C ourt appointm ents thus show in\xc2\xad\nstances in which the Senate confirmed judicial nominations which were\nmade in anticipation o f a vacancy, either where a resignation or retirement\nwas to take effect on a day certain (Stanton; Day; Sutherland; Stone), or\nwhere the nom ination was vice an Associate Justice nominated to be Chief\nJustice (Jackson) or vice a judge nom inated to be a Justice (Richards).1\nAs noted earlier, in recent years a very sizable num ber o f Federal judges\nhave retired subject to the appointm ent and qualification o f their suc\xc2\xad\ncessors. The Senate has confirmed their successors in the same way it acts\non other nom inations which are submitted in anticipation o f a vacancy.\n(See examples in Appendix II.) The same is true o f the situations, very fre\xc2\xad\nquent in the lower Federal courts, in which nom inations have been made\nand confirmed to replace incumbent judges being elevated to higher posts\nat the same time. Thus, acceptance o f the assertion that the Senate lacks\nthe power to confirm Mr. Justice Fortas on account o f the condition af\xc2\xad\nfecting the timing o f Chief Justice W arren\xe2\x80\x99s retirement, or that it lacks the\npower to confirm Judge Thornberry at this time to replace Justice Fortas,\nwould create serious doubt about the validity o f the appointm ents o f a siz\xc2\xad\nable portion o f the Federal judiciary.\nThere is nothing inconsistent with the Constitution in the practice o f an\xc2\xad\nticipatory nom ination and confirm ation in the present circumstances. To\nthe contrary, this practice is sanctioned by the C onstitution and the expe\xc2\xad\nrience under it throughout our history. As President Kennedy wrote to\nJudge Prettym an in 1961, it has the beneficial effect that the \xe2\x80\x9c C ourt may\nnot be handicapped for any time during which a vacancy might otherwise\nexist.\xe2\x80\x9d\n\n1 Recently, in connection with a nom ination elevating a judge to a higher court and a\nsimultaneously subm itted nom ination designed to fill the vacancy caused by that elevation,\nthe Senate confirm ed the judge who was to fill the vacancy ahead o f the one who was to be\nelevated. These were the nom inations, dated O ctober 6, 1966, o f John Lewis Sm ith, Jr.,\nChief Judge o f the District o f Colum bia C ourt o f General Sessions, to the United States\nDistrict C ourt for the District o f Colum bia, and o f H arold H. Greene, vice the elevation o f\nJudge Smith. 112 C o n g r e s s i o n a l R e c o r d 25524. The confirm ation o f Judge Greene oc\xc2\xad\ncurred on O ctober 18, 1966, and that o f Judge Smith on O ctober 20. 112 C o n g r e s s i o n a l\nR e c o r d 27397, 28086.\n\n160\n\n\x0cAppendix I\n1. Letters from Chief Justice W arren to President Johnson, dated June\n13, 1968:\na. My Dear Mr. President:\nPursuant to the provisions o f 28 U .S.C ., Section 371(B), I\nhereby advise you o f my intention to retire as Chief Justice o f\nthe United States effective at your pleasure.\nRespectfully yours,\nEarl W arren\nb. My Dear Mr. President:\nIn connection with my retirement letter o f today, I desire to\nstate my reason for doing so at this time.\nI want you to know that it is not because o f reasons of\nhealth o r on account o f any personal or associational prob\xc2\xad\nlems, but solely because o f age. I have been advised that I am\nin as good physical condition as a person o f my age has any\nright to expect. My associations on the court have been cordial\nand satisfying in every respect, and I have enjoyed each day o f\nthe fifteen years I have been here.\nThe problem o f age, however, is one that no man can com \xc2\xad\nbat and, therefore, eventually must bow to it. _Lhave been con\xc2\xad\ntinuously in the public service for more than 50 years. W hen I\nentered the public service, 150 million o f our 200 million peo\xc2\xad\nple were not yet born. I, therefore, conceive it to be my duty\nto give way to someone who will have more years ahead of\nhim to cope with the problems which will come to the C ourt.\n1 believe there are few people who have enjoyed serving the\npublic o r who are more grateful for the opportunity to have\ndone so than I. I take leave o f the Court with the warmest of\nfeelings for every member on it and for the institution which\nwe have jointly served in the years I have been privileged to be\npart o f it.\nWith my every best wishes for your continued good health\nand happiness, I am\nSincerely,\nEarl W arren\n2.\nLetter from President Johnson to Chief Justice W arren dated June\n26, 1968:\n161\n\n\x0cMy Dear Mr. C hief Justice:\nIt is with the deepest regret that I learn o f your desire to\nretire, knowing how much the nation has benefited from your\nservice as C hief Justice. However, in deference to your\nwishes, I will seek a replacement to fill the vacancy in the of\xc2\xad\nfice o f Chief Justice that will be occasioned when you depart.\nW ith your agreement, I will accept your decision to retire ef\xc2\xad\nfective at such time as a successor is qualified.\nYou have won for yourself the esteem o f your fellow\ncitizens. You have served your nation with exceptional distinc\xc2\xad\ntion and deserve the nation\xe2\x80\x99s gratitude.\nU nder your leadership, the Supreme C ourt o f the United\nStates has once again dem onstrated the vitality o f this nation\xe2\x80\x99s\ninstitutions and their capacity to meet with vigor and strength\nthe challenge o f changing times. The C ourt has acted to\nachieve justice, fairness, and equality before the law for all\npeople.\nYour wisdom and strength will inspire generations o f Amer\xc2\xad\nicans for many decades to come.\nFortunately, retirement does not mean that you will with\xc2\xad\ndraw from service to your nation and to the institutions o f the\nlaw. I am sure that you will continue, although retired from\nactive service as Chief Justice, to respond to the calls which\nwill be made upon you to furnish continued inspiration and\nguidance to the development o f the rule o f law both inter\xc2\xad\nnationally and in our own nation. Nothing is more im portant\nthan this work which you undertook so willingly and have so\nwell advanced.\nSincerely,\nLyndon B. Johnson\n3.\nTelegram from Chief Justice W arren to President Johnson, dated\nJune 26, 1968:\nT H E PRESID EN T\nT H E W H ITE HOUSE\nDEAR MR. PRESID ENT: MY SECRETARY HAS READ\nTO ME OVER T H E PH O N E YOUR LETTER OF\nA C C EPTA N C E O F MY RETIREM ENT. I AM DEEPLY\nA PPR EC IA TIV E O F YOUR WARM W ORDS, AND I\nSEND MY C O NGRATU LATION S TO YOU ON TH E\nNOM INATIO NS O F MR. JUSTICE FORTAS AS MY SUC\xc2\xad\nCESSOR AND O F JU D G E HOM ER THORNBERRY TO\n162\n\n\x0cSUCCEED HIM . BOTH ARE MEN O F W HOM YOU CAN\nW ELL BE PRO U D , AND I FEEL SURE THEY W ILL ADD\nTO TH E STATURE O F TH E COURT.\nEARL W ARREN\n4. Letter from Mr. Justice Gray to President Theodore Roosevelt,\ndated July 9, 1902:\nDear Mr. President,\nBeing advised by my physicians that to hold the office of\nJustice o f the Supreme Court for another term may seriously\nendanger my health, I have decided to avail myself o f the\nprivilege allowed by Congress to judges o f seventy years o f\nage and who have held office more than ten years. I should\nresign to take effect immediately, but for a doubt whether a\nresignation to take effect at a future day, or on the appoint\xc2\xad\nment o f my successor, may be more agreeable to you.\nWishing that the first notice o f my intention should go to\nyourself, I have not as yet mentioned it to any one else.\nVery respectfully and truly yours\nHorace Gray\n5. Letter from President Roosevelt to Mr. Justice Gray, dated July 11,\n1902:\nMy dear Judge Gray:\nIt is with deep regret that I received your letter o f the 9th in\xc2\xad\nstant, and accept your resignation. As you know, it has always\nbeen my hope that you would continue on the bench for many\nyears. If agreeable to you, I will ask that the resignation take\neffect on the appointm ent o f your successor.\nIt seems to me that the valiant captain who takes o ff his\nharness at the close o f a long career o f high service faithfully\nrendered, holds a position more enviable than that o f almost\nany other man; and this position is yours. It has been your\ngood fortune to render striking and distinguished service to the\nwhole country in certain crises while you have been on the\ncourt - and this in addition o f course to uniformly helping\nshape its action so as to keep it up on the highest standard set\nby the great constitutional jurists o f the past. I am very sorry\nthat you have to leave, but you go with your honors thick upon\nyou, and with behind you a career such as few Americans have\nhad the chance to leave.\n163\n\n\x0cWith warm regards to Mrs. Gray, believe me,\nFaithfully yours,\nTheodore Roosevelt\n6. Letter from Judge Prettym an to President Kennedy, dated December\n14, 1961:\nDear Mr. President:\nOn O ctober 17th last, I had been on the court sixteen years.\nIn August I was seventy years old. Being thus qualified I wish\nto take advantage o f the statute (Sec. 371(b) o f Title 28,\nU.S. Code) which says a judge with such qualifications \xe2\x80\x9c may\nretain his office but retire from regular active service.\xe2\x80\x9d The\nstatute prescribes no procedure for retiring; accordingly, I\nsimply hereby retire from regular active service, retaining my\noffice.\nThe statute provides that you shall appoint a successor to a\njudge who retires. Hence I am sending you this note.\nWith great respect I have the honor to be\nYours sincerely,\nE. Barrett Prettym an\n7. Letter from President Kennedy to Judge Prettym an, dated December\n19, 1961:\nDear Judge Prettym an:\nIt was with regret that I received the notification that you were\nretiring from \xe2\x80\x9c regular active service.\xe2\x80\x9d The way in which you\nphrased your letter left me with no alternative but to accept\nyour decision.\nI was pleased, however, that you were retaining your office\nand would be available to continue your distinguished service\non the Bench. Your record for justice and humanity, your ef\xc2\xad\nforts in behalf o f more efficient administration o f the law,\nand your legacy o f sound precedent entitle you to some relaxa\xc2\xad\ntion from the demands o f regular active service.\nI am happy that you have elected to continue in the capacity\no f chairman o f the Administrative Conference. I am looking\nforward to receiving the recom m endations and suggestions\nwhich flow from the meetings o f the Conference. It seems to\n164\n\n\x0cme that this offers an opportunity to make a m ajor contribu\xc2\xad\ntion toward the improvement o f the regulatory agency pro\xc2\xad\ncedures. Under your leadership I am sure that the Conference\nwill take advantage o f that opportunity.\nWith every good wish, I am\nSincerely yours,\nJOHN F. KENNEDY\n8. Letter from President Kennedy to Judge Prettym an, dated December\n26, 1961:\nDear Judge Prettyman:\nAs you know, I have announced that I intend to fill the va\xc2\xad\ncancy which will be created when you retire from active serv\xc2\xad\nice. However, I hope you will continue in regular active serv\xc2\xad\nice on the C ourt o f Appeals for the District o f Columbia until\nyour successor assumes the duties o f office. Your letter does\nnot specifically mention when your retirement from regular\nactive service takes effect, but I have been informed that you\nhave no objection to continuing in your present capacity until\nyour successor is sworn in.\nI appreciaste your willingness to continue for this limited\nperiod in order that the Court may not be handicapped for\nany time during which a vacancy might otherwise exist.\nSincerely,\nJO H N F. KENNEDY\n9. Letter from Judge Prettym an to President Kennedy, dated January\n2, 1962:\nMy dear Mr. President:\nI have your note o f December 26th. I am glad to comply\nwith your preference in respect to the date upon which my\nretirement takes effect. My notice to you was purposely in\xc2\xad\ndefinite. I shall advise the keepers o f the records to enter my\nretirement upon the date when my successor qualifies.\nMay I take advantage o f this opportunity to express to you\nmy deep appreciation o f your generous remarks regarding my\nservice.\n165\n\n\x0cWith great respect, I am\nYours sincerely,\nE. BARRETT PRETTYM AN\n\nAppendix II\nBy letter dated February 24, 1968, Judge Wilson Warlick, N orth Caro\xc2\xad\nlina, Western, retired effective upon the appointm ent and qualification of\nhis successor. James McMillan was nom inated on April 25, appointed\nJune 7, and entered on duty June 24. Judge Warlick retired June 23.\nBy letter dated M arch 30, 1967, Judge Frank M. Scarlett, Georgia,\nSouthern, retired effective upon the appointm ent and qualification o f his\nsuccessor. To date no one has been appointed and he is still on the bench\nin regular service.\nBy letter dated November 28, 1966, Judge Frank A. Hooper, Georgia,\nNorthern, retired effective upon the appointm ent and qualification o f his\nsuccessor. Newell Edenfield was nom inated May 24, 1967, appointed June\n12, and entered on duty June 30. Judge H ooper retired June 29.\nBy letter dated September 21, 1965, Judge William G. East, Oregon,\nretired effective upon the appointm ent and qualification o f his successor.\nRobert Belloni was nom inated February 21, 1967, appointed April 4, and\nentered on duty April 10. Judge East retired April 9.\nBy letter dated March 12, 1965, Judge William C. Mathes, California,\nSouthern, retired effective upon the appointm ent and qualification o f his\nsuccessor, or not later than June 30, 1965. Irving Hill was nominated May\n18, appointed June 10, and entered on duty June 25. Judge Mathes retired\nJune 9.\nBy letter dated February 19, 1964, Judge W alter M. Bastian, D. C. Cir\xc2\xad\ncuit, retired effective upon the appointm ent and qualification o f his suc\xc2\xad\ncessor. Edward A. Tamm was nom inated March 1, 1965,^appointed\nMarch 11, and entered on duty March 17. Judge Bastian retired March 16.\n\n166\n\n\x0cA N N O U N CEM EN T\nCOURT\n\nNAME\n\nEFFECTIVE\n\nOF\n\nDATE O F\n\nRETIREM ENT\n\nRETIREM ENT\n\nReid, Silas\n\nAlaska\n\n6/14/09\n\n7 /1/09\n\nCooley, Alford\n\nNew Mexico\n\n6/6/10\n\n7/10/10\n\nBrawley, Wm.\n\nS. Carolina\n\n4/18/11\n\n6/14/11\n\nDonw orth, George\n\nW ashington\n\n1/24/12\n\n7/8/12\n\nLocke, James\n\nFlorida, So.\n\n7/9/12\n\n9/2/12\n\nPeele, Stanton\n\nC ourt o f Claims\n\n1/2/13\n\n2/11/13\n\nStuart, Thomas\n\nHawaii\n\n8/8/16\n\n11/23/16\n\nWhitney, Wm.\n\nHawaii\n\n1/25/17\n\n3/19/17\n\nShepherd, Seth\n\nD.C. Ct. Appeals\n\n5/1/17\n\n9/30/17\n\nDyer, David\n\nMissouri, E.\n\n5/15/19\n\n11/3/19\n\nBatts, Robert\n\nFifth Circuit\n\n8/22/19\n\n4 /9/20\n\nDavis, John\n\nNew Jersey\n\n6/5/20\n\n6/12/20\n\nRiner, John\n\nW yoming\n\n10/13/21\n\n10/31/21\n\nRudkin, Frank\n\nW ashington\n\n1/17/23\n\n1/18/23\n\nAnderson, Albert\n\nSeventh Circuit\n\n10/31/29\n\n11/6729\n\nAppendix III\nExamples in Vol. I o f the J o u r n a l o f t h e E x e c u t iv e\nP r o c e e d i n g s o f t h e S e n a t e , o f Senatorial Confirm a\xc2\xad\ntions in Anticipation o f a Vacancy.\nI. Nominations vice an incumbent who is being elevated at the\nsame time.\nDecember 21, 1796, p. 216.1\nI nominate the following persons to fill the offices annex\xc2\xad\ned to their names, respectively, which became vacant dur\xc2\xad\ning the recess o f the Senate:\n\n1 The page num bers refer to the pages o f Volume I o f the\nc e e d in g s o f t h e\n\nSenate.\n\n167\n\nJournal\n\nof the\n\nE x e c u t iv e P\n\nro\xc2\xad\n\n\x0c* * *\nJonathan Jackson, o f Massachusetts, to be Supervisor\nfor the district o f Massachusetts, vice Nathaniel Gorham ,\ndeceased.\nJohn Brooks, o f Massachusetts, to be Inspector of\nSurvey No. 2, in the district of Massachusetts, vice\nJonathan Jackson, appointed Supervisor.\nSamuel Bradford, o f Massachusetts, to be Marshal for\nthe district o f Massachusetts, vice John Brooks, appointed\nInspector o f Survey No. 2, in that district.\n* * *\nConfirm ed December 22, 1796, p. 217. A num ber o f similar nom ina\xc2\xad\ntions and confirmations took place in February, 1801, in connection with\nthe staffing o f the circuit courts, pp. 381-385.\nII. Nom inations vice incumbents who desire to be relieved of\ntheir duties.\nMay 19, 1796, p. 209\nI nom inate Rufus King, o f New York, to be Minister\nPlenipotentiary o f the United States at the C ourt o f Great\nBritain, in the room o f Thom as Pinckney, who desires to\nbe recalled.\nDavid Humphreys, o f Connecticut, to be the Minister\nPlenipotentiary o f the United States at the C ourt o f Spain;\nWilliam Short, the resident Minister to that C ourt having\ndesired to be recalled.\nConfirm ed, May 20, 17%, p. 209\nIII. Nominations to fill terms about to expire.\n1. January 10, 1798, p. 258\nI nom inate the following persons to be Marshals o f the\nUnited States;\nJohn Hobby, for the district o f Maine; Philip B.\nBradley, for the district o f Connecticut; Thom as Lowry,\nfor the district o f New Jersey; Samuel McDowell, Jr., for\nthe district o f Kentucky: each for the term o f four years,\nto commence on the twenty-eighth o f January, current,\nwhen their present terms will expire.\nConfirm ed, January 12, 1798, p. 258.\n168\n\n\x0c2. December 9, 1799, p. 325\nI nom inate * * * David Mead Randolph the present\nM arshal o f the district o f Virginia, for the term o f four\nyears, to commence on the 15th instant when his existing\ncommission will expire.\nConfirm ed, December 6, 1799, p. 326.\n3. February 4, 1803, p. 441\nI nom inate * * * William Henry Harrison, to be\nGovernor o f the Indiana Territory from the 13th day of\nMay next, when his present commission as G overnor will\nexpire.\nConfirmed February 8, 1803, p. 442.\nIV. Nominations to fill vacancy which will be caused by a\nresignation on a future day certain.\nMay 7, 1800, p. 352\nI nom inate the Honorable John Marshall, Esq. o f\nVirginia, to be Secretary o f the Departm ent o f W ar, in the\nplace o f the Honorable James McHenry, Esq., who has re\xc2\xad\nquested that he may be permitted to resign, and that his\nresignation be accepted to take place on the first day of\nJune next.\nMay 12, 1800, p. 353\nI nom inate the Honorable John Marshall, Esq., of\nVirginia, to be Secretary of State, in place o f the\nHonorable Tim othy Pickering, Esq. removed.\nThe Honorable Samuel Dexter, Esq. o f Massachusetts,\nto be Secretary o f the Departm ent o f W ar, in the place of\nthe Honorable John Marshall, nominated for prom otion\nto the Office o f State.\nConfirmed, May 13, 1800, p. 354.\nV. Nom ination to fill office, the incumbent o f which is to be\nsuperseded.\nDecember 23, 1799, p. 329\nI nom inate Ambrose G ordon, o f Georgia, to be marshal\no f the district o f Georgia, in the place o f Oliver Bowen, to\nbe superseded.\nConfirmed, December 24, 1799, pp. 329-330.\n\n169\n\n\x0c"