Year: 1875

The vacancy at present existing IN the
United States district judgeship for Loule'
lana, causing serious injury to public busi-
ness for want of a judicial officer to dispose
of important questions pending in that
court, has given rise to considerable dis
cussion on the question of the power Of the
President to fill such a vacancy. The con-
stitutiOn says, article two, section two:


The President shall have power to fill up
all vacancies that may happen during the
recess of the Senate by granting commits
sions, which shall expire at the end of their
next session."


There is of course no doubt of the power
of the President to fill the vacancies which
arise during the recess of the Senate; but
this vacancy happened while the Senate
was in session, and could have been filled
before the adjournment sine die, had the
Senate either approved or rejected the
nominee. For some reason Eot explained
the Senate declined to do either and laid
the nomination on the table. Had it been
returned to the President he no doubt
would have sent in another name. The
vacancy may be said to have "happened"
by the failure of the Senate to discharge
its duty. The question now is whether the
President can fill 1t before the Sen ate re-
convenes. A large number of precedents
can be produced in favor of the exercise Of
this authority by the President, during the
administrations OF both President Lincoln
and johnson. These precedents were .justi-
fed on the ground of public necessity.


1t is, however, claimed that the tenure of
office act has changed the character of this
question; but it will not Gel Itainly be urged
that any act of Congress can alter, amend,
or lessen the power of constitutional pro-
vision. If the authority to fill the vacancy
exists under the fundamental law, it can
not be effected by congressional legislation.


The evident intention Of the provision in
the constitution is to prevent an office con-
tinuipg vacant, such offices created by la W
being supposed to be essential to the public
welfare. If this provision of the cOnstitu-
ton should be 50 construed as to deny
the President authority to fill such vacan-
cies what would be the effect? Sup
pose the Senate should persistently re-
fuse to confirm appointments. Would
the President be powerless to fill such as
are essential to the life Of the government
The case presented for action is a very i'm
portant one. The Judicial business Of one
of the largest, and probably the most i'm
portant judicial district in the United States,
is entirely suspended. Cases involving
great interests to the government and to
private citizens remain unsettled; large
amount OF money, in the custody of the
officers of the court undistributed. must re-
main IN tnat cOndl1lOn indefinitely unless a
judge should be appointed.


Probably no case has occurred for a
quarter Of a century that more torcibly
illustrates the absolute necessity of the
power to fill an office at interim. At all
events the question should not be hastily
decided nor a precedent established that
may become hereafter dangerous to the
public welfare. Although the power has
been denied in the discussions in the Senate
by individual Senators, no President, it is
believed. has ever yet conceded its absence,
and if the question is one which the courts
must ultimately determine we know of no
case in which the executive would be more
justitiable in assuming the authority of
laying the foundation of such a judicial
decision.-W Washington Chronicle.