Mad Hatter's Dialog

While the Senate was busy wondering: 1) whom the President would appoint to the Supreme Court vacancy created last June 2 by the retirement of Justice Willis Van Devanter; and 2) whether he would make his appointment before Congress adjourned, Idaho's gaunt old lion, Senator William E. Borah, last week gave it something new to wonder about. Said he on the Senate floor:

"Certainly the President cannot name a successor until there is a vacancy and I challenge any lawyer here to say there is a vacancy. . .

Less astounding than it sounded, Senator Borah's contention was based on a fine definition. The U. S. Constitution provides that "The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office." Because the late Justice Oliver Wendell Holmes resigned and accepted a pension which in 1932 was cut in half as an economy measure, the Supreme Court Retirement Act was passed this year to give elderly justices a better reason for quitting. It provides that they may retire (i.e., go on inactive duty, subject to call if needed) thereby continuing in office in the sense that their pay may not be diminished. How, asked Mr. Borah, if Justice Van Devanter, who retired two months ago, is continuing in office can there be a vacancy on the bench?

To a body packed with lawyers, nothing is more fun than a brisk game of splitting verbal hairs. One of the first to take up Senator Borah's challenge was Arizona's bland Senator Ashurst, who attempted to obliterate the Borah argument by a reductio ad absurdum which resulted in dialog that sounded like the Mad Hatter's tea party:

Ashurst: Suppose the entire membership of the Supreme Court of the U.S. should suddenly become insane. . . ? Suppose there was something which would take the reason prisoner, and that each and all, en masse and en bloc, would become insane? Congress, of course, would grant them retirement privileges and retirement pay. Does the able Senator say the President could not nominate a new Bench?

Borah: I say the Congress of the U. S. could not get rid of nine insane men except through the power of impeachment. That's what was done in the days when the Constitution was observed. . . .

Ashurst: Suppose the Justices of the Supreme Court of the U. S. for their country's good should all retire en bloc, en masse. . . ?

Borah: . . . I am going to say that until a vacancy is created either by the hand of God or by impeachment . . . or by resignation . . . there is no office for the President to fill. . . .

Ashurst: . . . Suppose during the session of Congress the President should nominate a man for Associate Justice . . . and he should be confirmed [by the Senate]. . . . We should have ten judges of the Supreme Court should we not?

Borah: We should.

Ashurst: That is all I contend.

Borah: . . . The statute today says that the Supreme Court shall consist of a Chief Justice and eight associate Justices. . . .

That minority of the U. S. Senate which has the benefit of a sense of humor suspected Constitutionalist Borah of spoofing--perhaps at the expense of pompous Attorney General Homer S. Cummings who had spun the argument that the President is entitled to await Congress' adjournment before appointing a new member of the Supreme Court. Although the statute regulating the Supreme Court provides for only nine Justices, the Retirement Act specifically authorizes the President to appoint a successor to each Justice who retires.

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