Resignation of the Head of a Department Effective Only Upon the Confirmation and Appointment of a Successor

April 12, 1979

79-24 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

Presidential Appointees—Resignation Subject to the Appointment and Qualification of a Successor

This responds to your inquiry whether the head o f an executive agency can submit a resignation to become effective only upon confirmation and appointm ent o f his or her successor. We believe that he can. The submission o f such a resignation effective only upon the confirma­ tion and appointm ent o f a successor does not limit, or impinge on, the President’s powers. The head o f an executive agency is an executive of­ ficer; he serves at the pleasure o f the President and is subject to the Presi­ d en t’s illimitable removal power. Myers v. United States, 272 U.S. 52 (1926). A resignation effective only upon the confirmation and appoint­ ment o f the successor, therefore, does not affect the President’s power to remove the resigning officer prior to the appointm ent o f his successor. An officer serving at the pleasure o f the President is removed by opera­ tion o f law when the President appoints his successor by and with the ad­ vice and consent o f the Senate. Blake v. United States, 103 U.S. 227, 237 (1881); Parsons v. United States, 167 U.S. 324, 327 (1897); Quackenbush v. United States, 111 U.S. 20, 25 (1900); 39 Op. A .G . 437, 439 (1940). This, however, does not render a resignation effective upon the confirma­ tion and appointm ent o f a successor a meaningless tautology. To the con­ trary, this form o f resignation obviates a period o f vacancy in the office between the resignation and the appointm ent o f a successor. Article II, section 2, clause 1, o f the C onstitution provides that the President shall nom inate and appoint by and with the advice and consent o f the Senate officers o f the United States; Article II, section 3, provides that the President shall commission all such officers. In Marbury v. Madison, 1 Cranch 137, 155-157 (1803), Chief Justice Marshall ex­ pounded on the three-step appointm ent process envisaged by the constitu­ tional provisions. First, there is the nom ination by the President; second, the Senate gives its advice and consent to the proposed appointm ent (con­ firmation); third, the President, having obtained the advice and consent of

the Senate, makes his appointm ent o f the officer, who is then commis­ sioned. It is apparent that the appointm ent process may consume a con­ siderable length o f time. We have in the past examined the questions whether a prospective ap­ pointee to an office can be nominated and confirmed while the incumbent is still in office, and whether a resignation may be submitted to take effect at a future date. Both questions were answered in the affirmative. A copy o f the memorandum on the subject is attached. Beginning with the earliest days o f the Republic, Presidents have sub­ mitted nominations to the Senate and the Senate has given its advice and consent to appointm ents while the incumbent was still in office. Attached memorandum and Appendix III. Moreover, the President’s power to nominate and the Senate’s power to confirm are not dependent on the ex­ istence o f an actual vacancy. Resignations were submitted and intended to be effective at some future date. M emorandum and Appendix III. Judges have submitted their resignations effective upon the appointm ent o f their successors at least since the resignation o f Mr. Justice Gray o f the Supreme Court in 1902. M emorandum Appendix I. Also, this type o f resignation was not unusual in judicial resignations in the 1960s. In 1975, President Ford accepted the resignations o f the Secretary o f the Interior and o f the Secretary o f Defense “ effective upon the appointm ent and qualification o f your successor.” We conclude that there is no legal obstacle to the resignation o f the head o f an executive agency in the m anner you suggest. In order to avoid a vacancy in the office if, subsequent to the appointm ent and with the advice o f the Senate, there should be a delay in the commissioning or the taking o f the oath o f office, we would suggest that the resignation be con­ ditioned on the appointm ent and qualification o f the successor.

Jo h n M . H arm on Assistant A ttorney General Office o f Legal Counsel

Attachments

July 11, 1968

MEMORANDUM

Re: Power o f the President to Nominate and of the Senate to Confirm Mr. Justice Fortas to be Chief Justice o f the United States and Judge Thornberry to be Associate Justice of the Supreme Court.

O n June 13, 1968, Chief Justice W arren advised President Johnson o f his “ intention to retire as Chief Justice o f the United States effective at your pleasure.” In his reply, dated June 26, the President stated, “ With your agreement, I will accept your decision to retire effective at such time as a successor is qualified.” O n the same day Chief Justice Warren sent to the President a telegram in which the Chief Justice referred to the Presi­ dent’s “ letter o f acceptance o f my retirem ent,” and expressed his deep ap­ preciation o f the President’s warm w ords.¹ On June 26, the President also submitted to the Senate the nominations o f Mr. Justice Fortas to be Chief Justice o f the United States vice Chief Justice W arren, and o f Judge Thornberry, o f the United States C ourt of Appeals for the Fifth Circuit, to be Associate Justice o f the Supreme C 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 26, 1968) S7834. Questions have been raised as to the power o f the President to make and o f the Senate to confirm these nominations. The primary objection is based upon the assertion that there is at present no vacancy in the office o f Chief Justice, and th at nom ination and confirmation o f Mr. Justice For­ tas is therefore improper. Secondarily, there seems to be an objection that nom ination and confirm ation o f Judge Thornberry cannot be accom­ plished in these circumstances because the office to which he has been named is not yet vacant. -

Neither objection appears to be well taken. The terms o f Chief Justice W arren’s retirement, established in the correspondence between him and the President, are that the Chief Justice’s retirement will take effect upon the qualification o f his successor.² Judge Thornberry has been nom inated in anticipation o f the elevation o f Mr. Justice Fortas. As this m em oran­ dum will show, it is well established that the President has power to nominate, and the Senate power to confirm, in anticipation o f a vacancy. This power exists where it has been agreed that retirement o f an incumbent Justice or judge will be effective upon the qualification o f his successor. Such power also exists where an incumbent Justice or judge is simultaneously nom inated for elevation to a higher position.

I.

It is not unusual for a Justice or judge to advise the President o f his intention to retire and to leave it to the President to propose a timing best suited to prevent an extended vacancy and the resulting disruption o f the operation o f the court on which he sits. Nom ination o f a successor in such circumstances is but one example o f the power to fill anticipated vacancies. The more general power will be analyzed below, but it is instructive first to consider two directly pertinent instances for which docum entation is available. Mr. Justice Gray o f the Supreme C ourt advised President Theodore Roosevelt on July 9, 1902, that he had decided to avail himself o f the privilege to resign at full pay, and added: * * * I should resign to take effect immediately, but for a doubt whether a resignation to take effect at a future day, or on the ap­ pointment o f my successor, may be more agreeable to you. President Roosevelt’s acceptance, two days later, contained the following passage: It is with deep regret that I receive your letter o f the 9th in­ stant, and accept your resignation. As you know, it has always been my hope that you would continue on the bench for many years. If agreeable to you, I will ask that the resignation take ef­ fect on the appointm ent o f your successor.3 Mr. Justice Gray died in September, before his successor, Mr. Justice

Holmes, took office (187 U.S. iii).⁴ The Memorial Proceedings in honor of Mr. Justice Gray pointed out that “ he submitted his resignation to take ef­ fect upon the appointm ent and qualification o f his successor. So he died in office.” See also Lewis, Great American Lawyers, Vol. 8, p. 163. M ore recently, Circuit Judge Prettym an advised President Kennedy on December 14, 1961, that he intended to take advantage o f the statutory retirement provisions o f section 371(b), Title 28, United States Code, and continued: The statute prescribes no procedure for retiring; accordingly 1 simply hereby retire from regular active service, retaining my office. The statute provides that you shall appoint a successor to a judge who retires. Hence I am sending you this note. President Kennedy replied on December 19: It was with regret that I received the notification that you were retiring from ‘regular active service.’ The way in which you phrased your letter left me with no alternative but to accept your decision. A few days later, however, President Kennedy sent the following addi­ tional note to Judge Prettym an: As you know, I have announced that I intend to fill the vacancy which will be created when you retire from active service. How­ ever, I hope you will continue in regular active service on the Court o f Appeals for the District o f Columbia until your suc­ cessor assumes the duties o f office. Your letter does not specifically mention when your retirement from regular active service takes effect, but I have been informed that you have no objection to continuing in your present capacity until your suc­ cessor is sworn in. I appreciate your willingness to continue for this limited period in order that the C ourt may not be handicapped for any time during which a vacancy might otherwise exist. Judge Prettym an replied to the President that he was “ glad to comply with your preference in respect to the date upon which my retirement takes ef­ fect. My notice to you was purposely indefinite.” 3 Judge J. Skelly Wright was nom inated on February 2, 1962, confirmed on February 28, and appointed March 30. He qualified on April 16, and Judge Prettym an retired as o f April 15. The exchange o f communications between Chief Justice W arren and the President must be understood in the light o f these precedents. The Chief Justice advised the President o f his intention to retire, leaving it to the

President to suggest terms o f retirement which would be suitable in allow­ ing sufficient time for nom ination and confirmation o f a successor without the disruption and over-burdening o f the remaining Justices which might result from an extended vacancy, in particular such a vacancy in the office o f the Chief Justice. The President suggested that the Chief Justice’s retirement should take effect upon the appointm ent and qualification o f his successor. The Chief Justice agreed to this condition. It is a condition o f retirement that was used with respect to the Supreme Court in the case o f Mr. Justice Gray. It has been frequently resorted to in the case o f other judicial retirements. (For a partial list o f retirements by Federal judges effective upon the appointm ent and qualification o f their successors, see Appendix II.) The effect o f this form o f retirement is that the Chief Justice remains in office until the condition occurs; i.e., until his successor qualifies by taking the oaths o f office.

II. The power o f the President to appoint Justices o f the Supreme C ourt, by and with the advice and consent o f the Senate, is specified in Article II, Section 2, Clause 2 o f the Constitution. It provides that the President shall nominate, and by and with the Advice and Consent o f the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges o f the Supreme C ourt, and all other Officers o f the United States, whose A ppointm ents are not herein otherwise provided for, and which shall be established by Law * * *. Article II, section 3 provides additionally that the President shall “ Com ­ mission all the Officers o f the United States.” As explained in Marbury v. Madison, 1 Cranch 137, 153-157 (1803), the constitutional appointm ent process consists o f three m ajor steps: The nom ination by the President; the Senatorial advice and consent (confirmation); and the appointm ent by the President, o f which the Commission is merely the evidence. See also 4 Op. A.G . 218, 219-220. There is no indication in this early analysis o f the constitutional ap­ pointment process that a matured vacancy is a necessary prerequisite. Nomination and confirmation to fill anticipated vacancies are consistent with the constitutional plan, and have been frequent occurrences in our history. It should be noted that anticipated vacancies may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as o f a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment o f a condi­ tion; e.g., when the removal or elevation o f the incumbent takes effect, or the appointm ent and qualification o f his successor. Nothing in the C on­ stitution prevents advance nom ination and confirmation to fill either

category o f anticipated vacancies. Logic and experience, running from the earliest years o f the Republic to the present, support this conclusion. If the Senate’s power to confirm were conditioned on the present effec­ tiveness o f the vacancy, there would continually be gaps in the holding of im portant offices. In all cases, nom ination, confirmation and appoint­ ment would have to wait until the incumbent leaves office. Interruptions in the discharge o f public business would necessarily result. The needs of prudent adm inistration suggest the unsoundness o f a constitutional inter­ pretation that would force this result upon every resignation or retirement o f Presidential appointees. As a m atter o f fact, from the earliest years the Senate has exercised the power to confirm nom inations to offices in which a vacancy in the near future is anticipated to take effect, by action o f the incumbent or o f the President, as the case may be. The first volume o f the E x e c u t i v e J o u r ­ n a l o f t h e S e n a t e , covering the years from 1789 to 1805, gives instances in which the Senate confirmed nominees in the following situations: To fill a vacancy to be created by the prom otion o f the incumbent; to replace an official who desired to be recalled; to rename an officer whose term was about to expire; to replace an official who had resigned as o f a day certain; and to replace an official about to be superseded. (For details as to these nominations, see Appendix III.) This practical interpretation o f the C onstitution by the early Presidents and the Senate has been judicially supported in a num ber of Supreme Court decisions holding that an officer who serves at the pleasure o f the President is ousted from his office when the President appoints a successor by and with the advice and consent o f the Senate. McElrath v. United States, 102 U.S. 426; Blake v. United States, 103 U.S. 227, 237; Mullan v. United States, 140 U.S. 240, 245. These rulings clearly presuppose that the Senate has the power to confirm a nom ination while the incumbent is still in office. The history o f the Supreme C ourt contains several examples o f actions, by Presidents and the Senate, to fill positions o f Justices and the Chief Justice in advance o f the effective date o f the resignation or retirement o f the incumbent: 1. Mr. Justice Grier subm itted his resignation on December 15, 1869, to take effect on February 1, 1870. President G rant nom inated Edwin M. Stanton in his place on December 20, 1869. Stanton was confirmed and appointed the same day, and his commission read to take effect on or after February 1. However, due to his death on December 24, Stanton never ascended to the Bench. See W arren, The Supreme Court— United States History (1937 Edition) Vol. 2, pp. 504, 506. 2. Mr. Justice Gray resigned on July 9, 1902, effective on the appoint­ ment o f his successor (see, supra, pp. 4-5). On August 11, the newspapers announced that Oliver Wendell Holmes had been “ appointed” to succeed Mr. Justice Gray. Bowen, Yankee from Olympus, 346. President Roose­ velt had in fact on that day given Holmes a recess commission, which

subsequently was cancelled. Holmes, who then was Chief Judge o f the highest court o f Massachusetts, apparently did not want to serve without prior confirmation by the Senate. Holmes-Pollock Letters, Vol. I, p. 103.6 As shown above, Mr. Justice Gray died on September 15. The President nominated Holmes on December 2, the day after the Senate reconvened. The nomination was confirmed two days later. J ou rnal of th e E xecu ­ tive P roceedings o f th e Se n a t e , Vol. XXXIV, pp. 5, 21. There can be no question but that President Roosevelt would have submitted the Holmes nomination to the Senate prior to Justice Gray’s death, had the Senate then been in session. 3. Mr. Justice Shiras submitted his resignation to take effect on February 24, 1903. On February 19, President Roosevelt nom inated (a) Circuit Judge Day to be Associate Justice o f the Supreme C ourt, vice Mr. Justice Shiras; (b) Solicitor General Richards to be Circuit Judge, vice Judge Day; and (c) Assistant Attorney General Hoyt to be Solicitor General, vice Solicitor General Richards. All three nominations were con­ firmed on February 23, one day prior to the effective date o f Justice Shiras’ resignation. J ournal o f th e E xecutive P roceedings o f th e Sen a t e , Vol. XXXIV, pp. 202, 215. 4. On September 1, 1922, Associate Justice Clarke tendered his resigna­ tion as of September 18. On September 5, President Harding nom inated George Sutherland to succeed Mr. Justice Clarke. The Senate confirmed his nomination on the same day. 260 U.S. iii. The records o f the D epart­ ment o f Justice indicate that Justice Sutherland’s commission was dated September 5, “ commencing September 18, 1922.” 5. On June 2, 1941, Chief Justice Hughes announced that he would retire from active service on July 1. 313 U.S. iii. On June 12, President Franklin D. Roosevelt nominated Associate Justice Stone to be Chief Justice, and Attorney General Robert H. Jackson “ to be an Associate Justice o f the Supreme C ourt, in place o f Harlan F. Stone, this day nominated to be Chief Justice o f the United States.” 87 C ongressional Record 5097. The Senate confirmed Chief Justice Stone’s nom ination on June 27, and Associate Justice Jackson’s nom ination on July 7. 314 U.S. iv.7

These precedents relating to Supreme C ourt appointm ents thus show in­ stances in which the Senate confirmed judicial nominations which were made in anticipation o f a vacancy, either where a resignation or retirement was to take effect on a day certain (Stanton; Day; Sutherland; Stone), or where the nom ination was vice an Associate Justice nominated to be Chief Justice (Jackson) or vice a judge nom inated to be a Justice (Richards).1 As noted earlier, in recent years a very sizable num ber o f Federal judges have retired subject to the appointm ent and qualification o f their suc­ cessors. The Senate has confirmed their successors in the same way it acts on other nom inations which are submitted in anticipation o f a vacancy. (See examples in Appendix II.) The same is true o f the situations, very fre­ quent in the lower Federal courts, in which nom inations have been made and confirmed to replace incumbent judges being elevated to higher posts at the same time. Thus, acceptance o f the assertion that the Senate lacks the power to confirm Mr. Justice Fortas on account o f the condition af­ fecting the timing o f Chief Justice W arren’s retirement, or that it lacks the power to confirm Judge Thornberry at this time to replace Justice Fortas, would create serious doubt about the validity o f the appointm ents o f a siz­ able portion o f the Federal judiciary. There is nothing inconsistent with the Constitution in the practice o f an­ ticipatory nom ination and confirm ation in the present circumstances. To the contrary, this practice is sanctioned by the C onstitution and the expe­ rience under it throughout our history. As President Kennedy wrote to Judge Prettym an in 1961, it has the beneficial effect that the “ C ourt may not be handicapped for any time during which a vacancy might otherwise exist.”

1 Recently, in connection with a nom ination elevating a judge to a higher court and a simultaneously subm itted nom ination designed to fill the vacancy caused by that elevation, the Senate confirm ed the judge who was to fill the vacancy ahead o f the one who was to be elevated. These were the nom inations, dated O ctober 6, 1966, o f John Lewis Sm ith, Jr., Chief Judge o f the District o f Colum bia C ourt o f General Sessions, to the United States District C ourt for the District o f Colum bia, and o f H arold H. Greene, vice the elevation o f Judge 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 curred 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 R e c o r d 27397, 28086.

Appendix I

1. Letters from Chief Justice W arren to President Johnson, dated June 13, 1968:

a. My Dear Mr. President:

Pursuant to the provisions o f 28 U .S.C ., Section 371(B), I hereby advise you o f my intention to retire as Chief Justice o f the United States effective at your pleasure.

Respectfully yours, Earl W arren

b. My Dear Mr. President:

In connection with my retirement letter o f today, I desire to state my reason for doing so at this time. I want you to know that it is not because o f reasons of health o r on account o f any personal or associational prob­ lems, but solely because o f age. I have been advised that I am in as good physical condition as a person o f my age has any right to expect. My associations on the court have been cordial and satisfying in every respect, and I have enjoyed each day o f the fifteen years I have been here. The problem o f age, however, is one that no man can com ­ bat and, therefore, eventually must bow to it. _Lhave been con­ tinuously in the public service for more than 50 years. W hen I entered the public service, 150 million o f our 200 million peo­ ple were not yet born. I, therefore, conceive it to be my duty to give way to someone who will have more years ahead of him to cope with the problems which will come to the C ourt. 1 believe there are few people who have enjoyed serving the public o r who are more grateful for the opportunity to have done so than I. I take leave o f the Court with the warmest of feelings for every member on it and for the institution which we have jointly served in the years I have been privileged to be part o f it. With my every best wishes for your continued good health and happiness, I am

Sincerely, Earl W arren

2. Letter from President Johnson to Chief Justice W arren dated June 26, 1968:

My Dear Mr. C hief Justice:

It is with the deepest regret that I learn o f your desire to retire, knowing how much the nation has benefited from your service as C hief Justice. However, in deference to your wishes, I will seek a replacement to fill the vacancy in the of­ fice o f Chief Justice that will be occasioned when you depart. W ith your agreement, I will accept your decision to retire ef­ fective at such time as a successor is qualified. You have won for yourself the esteem o f your fellow citizens. You have served your nation with exceptional distinc­ tion and deserve the nation’s gratitude. U nder your leadership, the Supreme C ourt o f the United States has once again dem onstrated the vitality o f this nation’s institutions and their capacity to meet with vigor and strength the challenge o f changing times. The C ourt has acted to achieve justice, fairness, and equality before the law for all people. Your wisdom and strength will inspire generations o f Amer­ icans for many decades to come. Fortunately, retirement does not mean that you will with­ draw from service to your nation and to the institutions o f the law. I am sure that you will continue, although retired from active service as Chief Justice, to respond to the calls which will be made upon you to furnish continued inspiration and guidance to the development o f the rule o f law both inter­ nationally and in our own nation. Nothing is more im portant than this work which you undertook so willingly and have so well advanced.

Sincerely, Lyndon B. Johnson

3. Telegram from Chief Justice W arren to President Johnson, dated June 26, 1968:

T H E PRESID EN T T H E W H ITE HOUSE

DEAR MR. PRESID ENT: MY SECRETARY HAS READ TO ME OVER T H E PH O N E YOUR LETTER OF A C C EPTA N C E O F MY RETIREM ENT. I AM DEEPLY A PPR EC IA TIV E O F YOUR WARM W ORDS, AND I SEND MY C O NGRATU LATION S TO YOU ON TH E NOM INATIO NS O F MR. JUSTICE FORTAS AS MY SUC­ CESSOR AND O F JU D G E HOM ER THORNBERRY TO

SUCCEED HIM . BOTH ARE MEN O F W HOM YOU CAN W ELL BE PRO U D , AND I FEEL SURE THEY W ILL ADD TO TH E STATURE O F TH E COURT.

EARL W ARREN

4. Letter from Mr. Justice Gray to President Theodore Roosevelt, dated July 9, 1902:

Dear Mr. President,

Being advised by my physicians that to hold the office of Justice o f the Supreme Court for another term may seriously endanger my health, I have decided to avail myself o f the privilege allowed by Congress to judges o f seventy years o f age and who have held office more than ten years. I should resign to take effect immediately, but for a doubt whether a resignation to take effect at a future day, or on the appoint­ ment o f my successor, may be more agreeable to you. Wishing that the first notice o f my intention should go to yourself, I have not as yet mentioned it to any one else.

Very respectfully and truly yours Horace Gray

5. Letter from President Roosevelt to Mr. Justice Gray, dated July 11, 1902:

My dear Judge Gray:

It is with deep regret that I received your letter o f the 9th in­ stant, and accept your resignation. As you know, it has always been my hope that you would continue on the bench for many years. If agreeable to you, I will ask that the resignation take effect on the appointm ent o f your successor. It seems to me that the valiant captain who takes o ff his harness at the close o f a long career o f high service faithfully rendered, holds a position more enviable than that o f almost any other man; and this position is yours. It has been your good fortune to render striking and distinguished service to the whole country in certain crises while you have been on the court - and this in addition o f course to uniformly helping shape its action so as to keep it up on the highest standard set by the great constitutional jurists o f the past. I am very sorry that you have to leave, but you go with your honors thick upon you, and with behind you a career such as few Americans have had the chance to leave.

With warm regards to Mrs. Gray, believe me,

Faithfully yours, Theodore Roosevelt

⁶. Letter from Judge Prettym an to President Kennedy, dated December 14, 1961:

Dear Mr. President:

On O ctober 17th last, I had been on the court sixteen years. In August I was seventy years old. Being thus qualified I wish to take advantage o f the statute (Sec. 371(b) o f Title 28, U.S. Code) which says a judge with such qualifications “ may retain his office but retire from regular active service.” The statute prescribes no procedure for retiring; accordingly, I simply hereby retire from regular active service, retaining my office. The statute provides that you shall appoint a successor to a judge who retires. Hence I am sending you this note. With great respect I have the honor to be

Yours sincerely, E. Barrett Prettym an

⁷. Letter from President Kennedy to Judge Prettym an, dated December 19, 1961:

Dear Judge Prettym an:

It was with regret that I received the notification that you were retiring from “ regular active service.” The way in which you phrased your letter left me with no alternative but to accept your decision.

I was pleased, however, that you were retaining your office and would be available to continue your distinguished service on the Bench. Your record for justice and humanity, your ef­ forts in behalf o f more efficient administration o f the law, and your legacy o f sound precedent entitle you to some relaxa­ tion from the demands o f regular active service.

I am happy that you have elected to continue in the capacity o f chairman o f the Administrative Conference. I am looking forward to receiving the recom m endations and suggestions which flow from the meetings o f the Conference. It seems to

me that this offers an opportunity to make a m ajor contribu­ tion toward the improvement o f the regulatory agency pro­ cedures. Under your leadership I am sure that the Conference will take advantage o f that opportunity.

With every good wish, I am

Sincerely yours, JOHN F. KENNEDY

8. Letter from President Kennedy to Judge Prettym an, dated December 26, 1961:

Dear Judge Prettyman:

As you know, I have announced that I intend to fill the va­ cancy which will be created when you retire from active serv­ ice. However, I hope you will continue in regular active serv­ ice on the C ourt o f Appeals for the District o f Columbia until your successor assumes the duties o f office. Your letter does not specifically mention when your retirement from regular active service takes effect, but I have been informed that you have no objection to continuing in your present capacity until your successor is sworn in.

I appreciaste your willingness to continue for this limited period in order that the Court may not be handicapped for any time during which a vacancy might otherwise exist.

Sincerely, JO H N F. KENNEDY

9. Letter from Judge Prettym an to President Kennedy, dated January 2, 1962:

My dear Mr. President:

I have your note o f December 26th. I am glad to comply with your preference in respect to the date upon which my retirement takes effect. My notice to you was purposely in­ definite. I shall advise the keepers o f the records to enter my retirement upon the date when my successor qualifies. May I take advantage o f this opportunity to express to you my deep appreciation o f your generous remarks regarding my service.

With great respect, I am

Yours sincerely, E. BARRETT PRETTYM AN

Appendix II

By letter dated February 24, 1968, Judge Wilson Warlick, N orth Caro­ lina, Western, retired effective upon the appointm ent and qualification of his successor. James McMillan was nom inated on April 25, appointed June 7, and entered on duty June 24. Judge Warlick retired June 23.

By letter dated M arch 30, 1967, Judge Frank M. Scarlett, Georgia, Southern, retired effective upon the appointm ent and qualification o f his successor. To date no one has been appointed and he is still on the bench in regular service.

By letter dated November 28, 1966, Judge Frank A. Hooper, Georgia, Northern, retired effective upon the appointm ent and qualification o f his successor. Newell Edenfield was nom inated May 24, 1967, appointed June 12, and entered on duty June 30. Judge H ooper retired June 29.

By letter dated September 21, 1965, Judge William G. East, Oregon, retired effective upon the appointm ent and qualification o f his successor. Robert Belloni was nom inated February 21, 1967, appointed April 4, and entered on duty April 10. Judge East retired April 9.

By letter dated March 12, 1965, Judge William C. Mathes, California, Southern, retired effective upon the appointm ent and qualification o f his successor, or not later than June 30, 1965. Irving Hill was nominated May 18, appointed June 10, and entered on duty June 25. Judge Mathes retired June 9.

By letter dated February 19, 1964, Judge W alter M. Bastian, D. C. Cir­ cuit, retired effective upon the appointm ent and qualification o f his suc­ cessor. Edward A. Tamm was nom inated March 1, 1965,^appointed March 11, and entered on duty March 17. Judge Bastian retired March 16.

A N N O U N CEM EN T EFFECTIVE OF DATE O F NAME COURT RETIREM ENT RETIREM ENT

Reid, Silas Alaska 6/14/09 7 /1/09 Cooley, Alford New Mexico 6/6/10 7/10/10 Brawley, Wm. S. Carolina 4/18/11 6/14/11 Donw orth, George W ashington 1/24/12 7/8/12 Locke, James Florida, So. 7/9/12 9/2/12 Peele, Stanton C ourt o f Claims 1/2/13 2/11/13 Stuart, Thomas Hawaii 8/8/16 11/23/16 Whitney, Wm. Hawaii 1/25/17 3/19/17 Shepherd, Seth D.C. Ct. Appeals 5/1/17 9/30/17 Dyer, David Missouri, E. 5/15/19 11/3/19 Batts, Robert Fifth Circuit 8/22/19 4 /9/20 Davis, John New Jersey 6/5/20 6/12/20 Riner, John W yoming 10/13/21 10/31/21 Rudkin, Frank W ashington 1/17/23 1/18/23 Anderson, Albert Seventh Circuit 10/31/29 11/6729

Appendix III

Examples 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 P 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 tions in Anticipation o f a Vacancy.

I. Nominations vice an incumbent who is being elevated at the same time.

December 21, 1796, p. 216.1 I nominate the following persons to fill the offices annex­ ed to their names, respectively, which became vacant dur­ ing the recess o f the Senate:

1 The page num bers refer to the pages o f Volume I o f the Journal of the E x e c u t iv e P ro­ c e e d in g s o f t h e Senate.

• • * *

Jonathan Jackson, o f Massachusetts, to be Supervisor for the district o f Massachusetts, vice Nathaniel Gorham , deceased. John Brooks, o f Massachusetts, to be Inspector of Survey No. 2, in the district of Massachusetts, vice Jonathan Jackson, appointed Supervisor. Samuel Bradford, o f Massachusetts, to be Marshal for the district o f Massachusetts, vice John Brooks, appointed Inspector o f Survey No. 2, in that district.

• • * *

Confirm ed December 22, 1796, p. 217. A num ber o f similar nom ina­ tions and confirmations took place in February, 1801, in connection with the staffing o f the circuit courts, pp. 381-385.

II. Nom inations vice incumbents who desire to be relieved of their duties.

May 19, 1796, p. 209

I nom inate Rufus King, o f New York, to be Minister Plenipotentiary o f the United States at the C ourt o f Great Britain, in the room o f Thom as Pinckney, who desires to be recalled. David Humphreys, o f Connecticut, to be the Minister Plenipotentiary o f the United States at the C ourt o f Spain; William Short, the resident Minister to that C ourt having desired to be recalled.

Confirm ed, May 20, 17%, p. 209

III. Nominations to fill terms about to expire.

1. January 10, 1798, p. 258 I nom inate the following persons to be Marshals o f the United States; John Hobby, for the district o f Maine; Philip B. Bradley, for the district o f Connecticut; Thom as Lowry, for the district o f New Jersey; Samuel McDowell, Jr., for the district o f Kentucky: each for the term o f four years, to commence on the twenty-eighth o f January, current, when their present terms will expire.

Confirm ed, January 12, 1798, p. 258.

2. December 9, 1799, p. 325 I nom inate * * * David Mead Randolph the present M arshal o f the district o f Virginia, for the term o f four years, to commence on the 15th instant when his existing commission will expire. Confirm ed, December 6, 1799, p. 326.

3. February 4, 1803, p. 441 I nom inate * * * William Henry Harrison, to be Governor o f the Indiana Territory from the 13th day of May next, when his present commission as G overnor will expire. Confirmed February 8, 1803, p. 442.

IV. Nominations to fill vacancy which will be caused by a resignation on a future day certain. May 7, 1800, p. 352 I nom inate the Honorable John Marshall, Esq. o f Virginia, to be Secretary o f the Departm ent o f W ar, in the place o f the Honorable James McHenry, Esq., who has re­ quested that he may be permitted to resign, and that his resignation be accepted to take place on the first day of June next.

May 12, 1800, p. 353 I nom inate the Honorable John Marshall, Esq., of Virginia, to be Secretary of State, in place o f the Honorable Tim othy Pickering, Esq. removed. The Honorable Samuel Dexter, Esq. o f Massachusetts, to be Secretary o f the Departm ent o f W ar, in the place of the Honorable John Marshall, nominated for prom otion to the Office o f State. Confirmed, May 13, 1800, p. 354.

V. Nom ination to fill office, the incumbent o f which is to be superseded.

December 23, 1799, p. 329 I nom inate Ambrose G ordon, o f Georgia, to be marshal o f the district o f Georgia, in the place o f Oliver Bowen, to be superseded. Confirmed, December 24, 1799, pp. 329-330.

Footnotes

[1] See Appendix I, Nos. 1-3 for the texts o f the letters and telegram exchanged between Chief Justice W arren and the President. The letters appear in 4 Weekly Com pilation o f Presidential D ocum ents 1013-14.

[2] The term “ qualification” or “ qualifies” refers in this context to the taking o f the two oaths prerequisite to holding Federal judicial office, (1) the oath to support the Constitution required by Article VI, Clause 3 o f the Constitution o f all officers o f the United States, and (2) that required by 28 U .S.C . 453 o f each Justice or judge before perform ing the duties o f his office. * See Appendix I, Nos. 4-5 for the pertinent passages o f the Gray-Roosevelt corre­ spondence.

[4] The circumstances surrounding the Holmes appointm ent will be discussed infra. ' See Appendix I, Nos. 6-9 for the pertinent passages o f the Kennedy-Prettyman correspondence.

[6] See also a letter o f August 21, 1902, from President Roosevelt to Holmes: A fter consulting one or two people, I feel that there is no necessity why you should be nom inated in the recess. Accordingly I withdraw the recess appointm ent which I sent you, and I shall not send you another appointm ent until you have been confirm ed by the Senate, which I think will be two or three days after it meets. Meanwhile, I strongly feel that you should continue as C hief Justice o f Massachusetts.

[7] Chief Justice Stone took his oath on July 3 (314 U .S. iv), but the delay in Justice Jack­ son’s confirm ation until July 7 had no relation to that fact. The Jackson hearings, which commenced on the same day as the Stone hearings, took place over several days, June 21-30, and the Judiciary Com mittee reported on the nom ination June 30. On the same day the Jack­ son confirm ation by arrangement was put over until the next session for conducting substan­ tial 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 (1941).