Professors Blast Recess Choice of Gov. Warren

Five Law School professors yesterday attacked the Eisenhower administration for appointing Earl Warren as Chief Justice of the Supreme Court without Senate approval.

Warren, appointed by Eisenhower to fill the vacancy caused by the death of Fred M. Vinson, is scheduled to be sworn in Monday. But the Senate, which must approve the appointment, is in recess and will not convene again until January.

In a letter to today's CRIMSON, Henry M. Hart, Jr. '26, Professor of Law, said that Warren's participation in deciding cases would violate the spirit of the Consituation, "and possibly its letter."

He called for Eisenhower to call a special session of the Senate to relieve the situation. The complete text of Hart's letter is on page two.

Citing the contingencies which bind Warren's nomination--the decision of the President to forward his nomination to the Senate, the decision of the President not to withdraw the nomination before it has been acted upon, and the decision of the Senate to confirm the nomination--Hart said that "he cannot believe that the Constitution contemplates that any federal judge, let alone a Chief Justice of the United States, should hold office, and decide cases with all these strings tied to him."

Protection From Influences

"On few other points in the Constitutional Convention," Hart added, "were the framers in such complete accord as on the necessity of protecting judges from every kind of extraneous influence on their decisions. The purpose was to make the judges 'as independent as the lot of humanity will permit.' Governor Warren can not possibly have this independence if his every vote, indeed, his every question from the bench, is subject to the possibility of inquiry in later committee hearings and floor debates to determine his fitness to continue in judicial office."

Mark A. DeWolfe Howe, Jr. '28, professor of Law, said last night that he was in essential agreement with Hart's letter as far as the sprit of the constitution and current conditions are concerned.

"I do believe, however, than on pure constitutional grounds, a good case can be made for the other side," he added. "But Warren cannot participate before confirmation without numerous pressures and the Constitution was designed to protect against such pressures. For instance, even if the Senate convenes before a decision is made on the segregation case, some senators might drag on hearings until they see how Warren did do, the public would believe that political pressures influenced his decisions. This is especially unfortunate since the Court needs its prestige with these important cases," he concluded.

Separate, but Equal?

One of the segregation cases centers on the constitutionality of "separate, but equal" schools. Governor Byrnes of South Carolina and the Georgia legislature have both stated that if Negroes are permitted in white public schools the state school systems will be closed. Test cases on this issue come up in the next session of the court.

Louis L. Jaffe, Byrne Professor of Administrative Law, joined the other men in condemning the interim appointment. "I'm in complete agreement with the letter," he said. "I think Warren's appointment right now is a terrible honer. If he sat with the Court but didn't vote, it would satisfy the ethical if not the constitutional requirement. It's a highly improper arrangement where the Senate can vote after watching the judge vote. It's particularly bad in view of the segregation cases, with every Southern senator watching his vote."

Blasting what he termed a situation in which the judge 'has one eye over his shoulder at the Senate," Paul A. Freund, Charles Stebbins Fairchild Professor of Law, agreed with the letter except on the constitutionality of recess appointments. It's very unfair to Warren to have the President urge him to take the seat without calling a special session,' Freund said.

Although claiming that is is reasonably clear that recess appointments are constitutional, Professor Robert Braucher decried a position that has a judge writing an opinion while the Senate watches. "It would be a particularly bad thing if the Senate comes back in January and then held off on the appointment waiting to see what kind of opinions Warren writes. That would definitely be against the spirit of the constitution. But there are few cases coming up, and this whole problem is hypothetical if the Senate acts with reasonable promptness in January," Braucher concluded.

The only professor contacted who considered the appointment perfectly all right was Warren A. Seavey. "His vote will be valid even though he's not confirmed,' Seavey said.

Down at New Haven, Yale Law Professor Fred Rodell told the CRIMSON that if Warren has the slightest doubt about the effect of his vote on the Senate and appears to be moved by that consideration, "he should be impeached the minute he makes a move.