All Season Sport

President Roosevelt never said just when he would appoint a successor to Justice Willis Van Devanter who retired two months ago. Nonetheless it had been largely taken for granted that he would do so before Congress adjourned. Last week with that adjournment becoming imminent, what had been taken for granted became a matter of speculation. For the President announced he had asked Attorney General Cummings for an opinion on his power to appoint a Justice when Congress was not in session.

Such was the source of an interesting group of conjectures:

1) Did Franklin Roosevelt wish to avoid having his appointment considered by the Senate during an adjournment rush?

2) Did he hope by a recess appointment to seat a man on the bench whom the Senate might not otherwise readily approve, trusting that the Senate would not care to reject the new Justice next January after he had already served through the fall term?

3) If the Senate did reject a recess appointee would any decisions which he took part in on the bench, prior to rejection, be legal?

4) Would a recess appointment be legal or might the Supreme Court itself refuse to seat a recess appointee?

The last question depends on the sentence in the Constitution which says: "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." The present vacancy did not "happen" (in the sense of "occur") during a recess of the Senate but it will "happen" (in the sense of "happen to exist") during a recess if the President waits until after Congress adjourns. Franklin Roosevelt gave the press to understand that his Attorney General espoused the latter view, but gave no hint of his intended action, thus once more enjoying his year-round sport of keeping the press guessing.

Newshawks began guessing twice as hard when on his week-end yachting trip he was joined by Governor Murphy of Michigan who flew to join him on the Presidential yacht. On the endless list of Court possibilities drawn up by the quidnuncs of the press, the name of Frank Murphy stood beside such others as Solicitor General Stanley Reed, Federal Judges Sam Gilbert Bratton (onetime U. S. Senator from New Mexico), Joseph C. Hutcheson Jr. of Houston, Texas, Florence Allen of Columbus, Law Professors Felix Frankfurter of Harvard, Lloyd Garrison of Wisconsin, etc., etc.

Not content to guess, Republican Arthur Vandenberg of Michigan introduced a resolution in the Senate declaring it the "sense" of that body. The President should appoint Justices of the Supreme Court only when the Senate could act on the nominations before the nominees began service. Said he: "It is manifest the Senate can't be a free agent to exercise responsibility under the Constitution to confirm Supreme Court nominees if the Senate can't act until after a nominee has put on his robes and served for many months as an integral part of the Court. . . ."

P: To clear up all misunderstandings at press conferences the President issued what amounted to style book for White House newshawks. It divided all Presidential utterances into four categories: Back ground Remarks which can be directly attributed to the President but in the third person, without quotation marks; Direct Quotations for the occasional phrase, sentence or statement which he announces can be put in direct quotes; Non-attributable Information, dope the press can put out under any brand name that does not indicate its source; Off the Record, secrets, no fair telling under any pretext.

P: With his legislative leaders the President laid down the legislative program which he hopes to win before Congress adjourns.

P: On his weekend cruise with Secretary Ickes, Assistant Secretary of the Treasury Josephine Roche, Theodore F. Green, erudite freshman Senator from Rhode Island, and Governor Murphy, Franklin Roosevelt sailed down to Quantico, Va., where he attended to one international affair by broadcasting to France on the occasion of the dedication of the A. E. F.'s war memorials. Thereafter he returned to Washington hoping he would not have to attend to another international affair, the war in China. Attending to it would mean recognizing that war exists within the meaning of the Neutrality Act, and he and Secretary Hull had resolutely made up their minds not to know anything about any Sino-Japanese bloodletting, for declaring a Neutrality Act embargo would deprive defending China of needed supplies, have little effect on Japan. Rather than kick old friend John Chinaman when he was down, Franklin Roosevelt had decided to overlook the fact that he was taking an awful drubbing.

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