HART SAYS CONFIRMATION FIRST
If Governor Warren takes his seat as Chief Justice next Monday and then proceeds, as a temporary judge, to participate in the decision of cases, before his nomination has been confirmed by the Senate, he will in my judgment violate the spirit of the Constitution, and possibly also its letter.
No doubt the technical question is open to debate. In advising the President that he has power to fill the vacancy in the Chief Justiceship by a recess appointment, Attorney General Browell is, of course, relying on the broad image of Article II, section 2, of the Constitution, applicable to federal offices generally, that "The President shall have 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 Session."
However, this provision must be reconciled with the provision of Article III, Section 1, applicable specially to judges, that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior." "Good behavior," of course, means for life, subject only to the extraordinary procedure for impeachment.
If Governor Warren undertakes to act as Chief Justice next Monday, he will be holding office, if at all, only until the end of the next session of the Senate. This recess appointment will be distinct from his permanent appointment and, indeed, would continue to be valid, if valid at all, even if the Senate were to reject his nomination for a permanent appointment. The permanent appointment will be subject to three future contingencies; (1) the decision of the President to forward his nomination to the Senate; (2) the decision of the President not to withdraw the nomination before it has been acted upon; and (3) the decision of the Senate to confirm the nomination. The Senate will be entirely free, if it chooses, to postpone its action until near the close of the session in order to see how the new nominee is going to vote.
I cannot believe that the Constitution contemplates that any federal judge, let alone a Chief Justice of the United States, should hold office, and decide cases, with all these strings tied to him.
It is true that recess appointments have occasionally been given to judges of constitutional courts, and that various Attorneys General have assumed that such appointments are valid. But occasional practice backed by more assumption cannot settle a basic question of constitutional principle. Certainly, the famous early example of John Rutledge, who sat as Chief Justice and then failed of confirmation, does not prove the propriety of the practice. It provides, instead, a vivid illustration of its dangers and impropriety.
If we go behind the technical arguments and inquire into the spirit and purpose of the Constitution, the impropriety becomes unmistakable. On few other points in the Constitutional Convention were the framers in such complete accord as on the necessity of protecting judges from every kind of extraneous influence upon their decisions. The only important dis-agreement in this connection was whether Congress should not be forbidden even to increase the salaries of the judges during their term in office, lest the possibility of such action stand as a temptation to curry Congressional favor. In the moving phrasing of those times, the purpose was to make the judges "as independent as the lot of humanity will admit."
Governor Warren cannot possibly have this independence if his every vote, indeed his every question from the bench, is subject to the possibility of inquiry in later committee hearings and floor debates to determine his fitness to continue in judicial office. To say this is in no way to question his integrity as an individual. No judge should be put in such a position. So far as personal attitudes are relevant, the point is not what Governor Warren and his friends will think about his dis-interestedness but what defeated litigants will think, and others who may be disappointed by the Court's decisions on the explosive issues which are about to come before it. Will they believe that the decision is that of judges "as independent as the lot of humanity will admit," if the decisive vote is cast by a Chief Justice whose job depends, among other things, on his surviving thereafter the raking fire of confirmation hearings?
It will be unfortunate if Chief Justice Warren, who has so great an opportunity and so great a responsibility to strengthen the prestige of the Supreme Court and to maintain in letter and spirit the great guarantees of the Constitution, should by his first judicial act weaken the Court's prestige and bring into question one of the greatest of the guarantees.
The President ought not to subject a new appointee to the dilemma of having either to do this or to force a long postponement of important public business. He can resolve the dilemma by calling the Senate into special session to act upon the nomination. Henry M. Hart, Jr. '26 Professor of Law