                                                                 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

                                      152
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




                                     153
                                                                        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. -



  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.

                                         154
   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



   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.

                                             155
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


  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.

                                       156
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

                                     157
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

                                       158
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



   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).

                                                  159
   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.


                                                160
                                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:

                                    161
      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

                                    162
       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.

                                     163
         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

                                   164
      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.

                                    165
          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.




                                     166
                                                           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.


                                                     167
                                      * * *

             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.

                                       168
      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.




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