Controversy's End

The United States of America has a new Attorney General. Here are the bare facts of the story:

1) Associate Justice McKenna resigned from his place in the Supreme Court (TIME, Jan. 12).

2) The President appointed and the Senate, after a bit of talk, confirmed Harlan F. Stone, the Attorney General, to fill Mr. McKenna's place (TIME, Jan. 19 et seq.).

3) The President appointed Charles B. Warren of Michigan to succeed Mr. Stone as Attorney General (TIME, Jan. 19 et seq.).

4) The Senate, considering that Mr. Warren had been connected with the "Sugar Trust," rejected him, 41 to 39 (TIME, Mar. 23).

5) The President renominated Mr. Warren and announced that, if the Senate did not confirm him, he would be offered a temporary appointment without the Senate's consent (TiME, Mar. 23).

6) The Senate rejected Mr. Warren again, 46 to 39 (TIME, Mar. 23).

7) Last week, the President terminated the controversy by appointing John G. Sargent of Vermont, whom the Senate promptly confirmed without a roll-call, without a single opposing vote.

The Major Significance. The Constitution is a politically sacred law and the Constitution says that the President shall have the power to appoint, by and with the advice and consent of the Senate, the executive officers of the Government.-- So what the Senate did was entirely legal and done by authority long vested in it. But the proceeding was unique, almost as unique as the following hypothetical proceeding (equally legal, and by authority of equally long standing) would have been had it taken place:

Toward the middle of last January, 531 electors, chosen by the people the previous November, assembled at the capitals of their several states. The great majority of them had been elected as Republicans. A smaller number had been elected as Democrats. A very small group that met in one state had been elected as Progressives. They assembled with full authority to vote for whomever they pleased. They considered what was fitting and then a majority voted for Henry Ford for President of the United States.

If this had happened, the country would have been in a furor of excitement. Yet such an action by those electors would have been completely authorized by the Constitution; and not only authorized but (if the electors deemed that Henry Ford was a more fitting President than Calvin Coolidge or any other) actually what the makers of the Constitution had intended. More than that, such an action might actually have taken place if, in their wisdom, the makers of the Constitution had decreed that the members of the electoral college were to meet all together instead of in their respective states. For in that case, the Electoral College might have had some prestige in the public eye and in its own eyes and might never have allowed itself to become a mere rubber stamp.

The action that the Senate took last week was analogous to such an unheard of action by the Electoral College. It did not seem so startling because the Senate has long insisted on most of its constitutional prerogatives. But the Senate's action may have far-reaching consequences. It upset the precedent of three generations. If the Senate is to insist on its full power, it has the right to reject a Cabinet appointment not only on the ground of fitness (as in Mr. Warren's case), but on any ground whatever. A Democratic Senate might insist that a Republican President appoint only Democrats to his Cabinet and vice versa. That is an extreme supposition, but entirely within the scope of possibilities as laid down by the Constitution.

Outstanding Facts. There are a number of aspects of the present case which stand out in relief:

1) The struggle that developed was not inspired from without. It arose entirely within the small circle which circumscribes the President and the Senate. The President chose his nominee. The Senate objected to Mr. Warren--objected on its own initiative, for, during the entire contest, no protest against him was filed with the Judiciary Committee.

2) The President, after announcing that his mind was made up--that he would have Mr. Warren with or without the Senate's approval--practically backed down. To be sure, he went through the formality of offering Mr. Warren a temporary or recess appointment (which Mr. Warren declined) before nominating another man. But, inasmuch as Mr. Warren was staying at the White House during the later stages of the contest and, in some quarters, was even credited with having inspired the President's statement promising a recess appointment if the Senate refused a second time, the President's action can be looked on as hardly more than a gesture. One day, the President said he had no other candidate in mind and would offer a recess appointment if the Senate again rejected Mr. Warren; two days later, the Senate did so; early the following day, the President named another man.

3) The Senate, after insisting on its right to inspect Mr. Warren with a political microscope, received the nomination of Mr. Sargent shortly after 1 p.m. and referred it to the Judiciary Com mittee (which met at 2:30 and, in half an hour, heard three Senators speak in Mr. Sargent's favor and reported unanimously in favor of the appointment), received the Committee's report later in the afternoon, considered it just a moment behind closed doors ; then opened the doors, had the motion to confirm put and answered in unison with a rumbling "Aye." There is reason to believe that the Senate did not know much about Mr. Sargent when, glad to have beaten the President and eager to go home, it gave its perfunctory assent to the choice of Mr. Sargent.

Political Consequences. Opinions differed as to the immediate effect of the Warren controversy. Some held that Mr. Coolidge would lose in public esteem because he allowed the Senate to get the better of him, because he allowed it to be shown that he could not control the new Senate any better than he could its predecessor. Others believed that it would strengthen him to have antagonized the Senate, especially since the people would feel that the Senate had played politics, been hypercritical about Mr. Warren and entirely uncritical about Mr. Sargent. Others predicted that all breaches would be repaired and the clash forgotten before Congress assembled again.

*Constitution of the United States, Art. II, Sect. 2, clause 2.