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Philip W. Buchen Files
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Supreme Court of the United States. (02/02/1790 - )
Presidential appointments
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The original documents are located in Box 62, folder "Supreme Court - Vacancy General"
of the Philip Buchen Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Some items in this folder were not digitized because it contains copyrighted
materials. Please contact the Gerald R. Ford Presidential Library for access to
these materials.
Digitized from Box 62 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
[Nov.1975?]
J. P. Coleman - Judge, Fifth Circuit
Born: Mississippi, 1914
Education: attended University of Mississippi (1932-35); L.L.B.,
George Washington University, 1939.
Personal: Married, 1 son; Democrat
Experience:
1. Secretary to Rep. Arin Ford (1935-39).
2. Admitted to Miss. bar, 1937.
3. Private practice, Miss. 1939-40.
4. County prosecutor, Miss. 1940-46.
5. County judge, Miss., 1946-50.
6. AG of Miss. 1950-60.
7. Commissioner, Miss. Supreme Court, 1950.
8. Governor of Miss. 1956-60.
9. Rep. from Miss. 1960-65.
10. U.S. Court of Appeals 1965.
SERA FORD LIBEARY
1. The relationship of competency to previous court
experience.
2. Personal integrity, having had a history of independent
thought.
3. The relevancy of experience:
a. judicial
b. legislative
C. academic
A point was made that the Court is now lacking a person
with a background in legislation and in the academic field.
4. Age - should be 50 plus or minus
Two possible candidates that were considered "dark Horses"
Oakes-President of Brigham Young University, clerked for
Justice Warren, graduate of Chicago University; Democrat.
Cliff Wallace of San Diego.
Both men are very highly regarded by ABA and others.
It was felt that a background in the practice of law was
inconsequential.
GERALD ? FORD
THE WHITE HOUSE
[NOV.1975?
WASHINGTON
TO:
Phil Buchen
FROM: Ken Lazarus
For your information
For appropriate handling
Per your request
Remarks:
Per your request, attached is
the biographical information on
John Danforth.
GERALD 1. FORD LIBRARY
A-6 728
WHO'S WHO IN MERICA
ISNOH 311HM
ins MAITH
DANFORTH, JOHN CLAGGETT, atty. gen. Mo., lawyer; b.
Louis, Sept. 5, 1936; S. Donald and Dorothy (Claggett) D.; A
Princeton, 1958; B.D., Yale, 1963, LL.B., 1963; L.H.D., Lindenw
Coll., 1970; LL.D., Drury Coll., 1970; m. Sally B. Dobson, Sept
1957: children-Eleanor. Mary Dorothy. Johanna. Admitted to N
IMAD Purque LL TWAX Lseraidine Hottman IIIIV IVAIR admtted to VUCD. par IVEM in office or
NY
Supreme Court of the United States
Washington, D. 4. 20543
CHAMBERS OF
THE CHIEF JUSTICE
November 10, 1975
CONFIDENTIAL
Dear Mr. President:
Against the possibility that a vacancy may occur on the Court
there are certain factors, not always present when vacancies occur,
that deserve consideration and I venture to submit them to you privately
for such utility as they may have.
(1) Rarely have the geographical factors been as neutral as at
present. As you know, the two youngest Justices are from the West
(White and Rehnquist); there are three from the Midwest (Burger, Stewart,
Blackmun); one from a border state, Maryland (Marshall); one from the
Northeast (Brennan); and one from the South (Powell).
(2) The average age of the nine Justices is now 65 years.
(3) For more than ten months past we have been functionally
only a Court of eight, and this has placed us under substantial handicaps.
(4) Since I took office in June 1969, the Court has been function-
ally eight Justices for more than two years.
(5) All indications are that our work will continue to increase
both in the volume and in the complexity and novelty of issues; a number
of crucial cases have been set for reargument due to the absence of
Justice Douglas last year. To resolve them with a Court of eight Justices
is highly undesirable, for many reasons.
(6) In my considered judgment, the next vacancy should be
approached with the following factors in mind:
Determined to be an
GERALD LEGRARY FORD
Administrative Marking
By SD NARA, Date 9/14/2016
- 2 -
(a) It must be a nominee of such known and obvious profes-
sional quality, experience and integrity that valid opposition will
not be possible.
(b) Given the present difficult condition of the Court's
work -- a condition that has prevailed for more than 10 months --
a nomination should be made swiftly upon the occurrence of any
vacancy before rival "candidacies" develop that could engender
divisiveness and delay confirmation. We need nine Justices
without delay.
(c) A nominee with substantial judicial experience would
have several marked advantages; the adjustment to the work of
the Court would be e xpedited because of familiarity with the
enormous amount of "new law" in recent decades; insulation from
controversy and partisanship by reason of judicial service is also
likely an advantage (as it was to Justice Blackmun and to me).
This does not rule out a non-judge but it emphasizes that a general
practitioner, no matter of what legal capacity, has very likely had
little occasion to keep up with the great volume and complexity in
the evolution in criminal law and public law matters that now com-
pose the bulk of the Court's work. In fairness I should say that a
lawyer with substantial governmental experience, of course, has
much of the kind of exposure to the large issues we face that
judges deal with.
I cannot emphasize too strongly that we desperately need nine
Justices to carry on our work. The situation could develop in a way
not unlike that which arose when the Haynsworth and Carswell nomina-
tions were rejected.
I do not undertake to make specific recommendations for at this
stage, with time being a critical factor, I tender no more than "specifi-
cations" which I draw from 20 years experience on the Bench and more
than 20 as a practitioner.
I have hesitated to communicate with you but I conclude that my
obligation to the Court compels me to share my views of the overall
FORD
BE
- 3 -
problem since few outside the Court can have an appreciation of all
these elements. I would, of course, be happy to pursue these points
in more depth with you.
If there is a significant delay in confirming a nominee, the Court
and the country will suffer severely. For my part, I am compelled to
be candid in saying that we have had all we can sustain of functioning with
a "crippled court" since 1969. The delays in 1969-1970 hurt the Court
and the country.
I have not emphasized the crucial factor of age; three of the four
Justices appointed since 1969 were over 60 when they took office, being
respectively 61, 60 and 64, with only Justice Rehnquist being under 60.
He is now 50. If the average service of the three over 60 finally amounts
to 10 years each, we will have occasion to be grateful.
It goes without saying that I speak for myself, not for the Court.
Condially Wam and respectfully, { Burger
The President
The White House
R. FORD
GREAT
November 13, 1975
ct.
Questions and Answers
Supreme
Q: What qualifications are you going to look
for in selecting a nominee to be Associate
Justice of the Supreme Court?
A: I shall take very seriously the need to have
a person highly respected for professional
quality, for intellectual capacity, and for
integrity. Also, I am looking for an ener-
getic person and preferably one of middle
age who can be expected to contribute
effectively for a substantial period of years
to the important work of the Court.
Q: Are you going to call upon the American Bar
Association to evaluate prospective nominees
for a position on the Supreme Court?
A: Yes, I expect the ABA and other groups as well
to make recommendations and to express opinions
on the qualifications of various possible
candidates.
Q: How soon will you act on the nomination?
A: I will act as soon as I reasonably can, because
it is widely recognized that the workload of the
Court and the extremely important issues to be
decided require, as soon as possible, a full
Court of nine Justices. With only eight
Justices, there is too much risk of an equal
4 to 4 division of opinion in critical cases.
BERALD R. FORD LIBRANY
Phil Buchen
no SEQUITUR 30 DEPA USUP OF STATE
Office of the Attorney General
Old
Washington, B.C. 20530
JUSTITIA
*
73
November 13, 1975
MEMORANDUM FOR:
PHILIP W. BUCHEN
COUNSEL TO THE PRESIDENT
THE WHITE HOUSE
FROM:
EDWARD H. LEVI your in
ATTORNEY GENERAL
The names I have submitted to the American Bar Association
(through Lawrence Walsh) last evening are the ones listed
on the attached memorandum.
You have a copy of the previous memorandum to the President
of November 11, 1975.
R.
FORD
CAND
Names Given
O
American Bar Association
ommittee for
Comment at 6:00 p.m. on November 12, 1975 with Request
that Comments be Given Us by November 17.
ARLIN M. ADAMS
ROBERT H. BORK
ALFRED T. GOODWIN
ROBERT P. GRIFFIN
VINCENT LEE MCKUSICK
DALLIN H. OAKS
PAUL H. RONEY
JOHN PAUL STEVENS
J. CLIFFORD WALLACE
WILLIAM H. WEBSTER
CHARLES E. WIGGINS
2.
FORD
GENALD
LIGHARY
ROBERT H. BORK
Solicitor General Bork, 48 years old, received both
B.A. (1948) and J.D. (1953) degrees from the University
of Chicago. While at the law school, Mr. Bork was managing
editor of the Law Review, For one year following his
graduation, he remained at the law school as a resident
associate. After a year in private practice in New York,
Mr. Bork became associated with the Kirkland, Ellis firm
in Chicago, where he remained until 1962. He then joined
the faculty of Yale Law School where he taught constitutional
law and antitrust. Mr. Bork has written extensively in both
fields. He was appointed Solicitor General of the United
States in 1973.
Before his appointment, Mr. Bork was generally known
in the profession as one of the foremost conservative critics
of the prevalent interpretation and enforcement of the antitrust
laws. In constitutional law, Mr. Bork's work and views were
perhaps less well known, except for his prominent role, in the
first term of President Nixon's administration, as one of the
draftsmen and proponents of proposed legislation to eliminate
busing as a judicial remedy for school segregation. In his
work as Solicitor General, Mr. Bork has the highest reputation,
especially among close observers of the Court, for ability
and integrity. If Mr. Bork was appointed to the Court, there
would be little doubt of his intellectual capacity for the
work. There would be equally little doubt that, on the Court,
Mr. Bork would provide strong reenforcement to the Court's
most conservative wing--particularly in the sense of a need
to limit the extended role of the courts.
FORD
SERIOD
LIBRARY
ROBERT P. GRIFFIN
Robert P. Griffin, of Traverse City, Michigan; born in
Detroit, Michigan, November 6, 1923; educated in public
schools of Garden City and Dearborn, Michigan; graduate of
Central Michigan University with A.B. and B.S. degrees;
graduate of University of Michigan Law School with J.D.
degree; honorary degrees from several Michigan colleges
and universities; served as enlisted man in 71st Infantry
Division during World War II; practiced law in Traverse City,
Michigan, 1950-56; named one of the Ten Outstanding Young
Men of the Nation in 1959 by the U.S. Junior Chamber of
Commerce; elected November 6, 1956, a Representative from
Michigan's 9th district to 85th Congress; reelected to 86th,
87th, 88th, and 89th Congresses; appointed May 11, 1966, to
U.S. Senate to fill unexpired term of the late Senator Patrick
McNamara; elected November 8, 1966, to the U.S. Senate
for full 6-year term; reelected November 7, 1972; elected
October 1, 1969, Minority Whip of the Senate and reelected
unanimously on opening day of the 92d and 93d Congresses.
E.
1888
DALLIN H. OAKS
Mr. Oaks, 43 years old, graduated from Brigham
Young University (B.A. 1954) and the University of
Chicago Law School (J.D. 1957), where he was editor-in-
chief of the law review and a member of the Order of
the Coif. He served as law clerk to Chief Justice Earl
Warren during 1957-58; he later practiced law in Chicago
from 1958 to 1961 with the Kirkland, Ellis firm. He
became an associate professor at the University of Chicago
Law School in 1961 and a full professor in 1964. Between
1970-1971, he served as Executive Director of the American
Bar Foundation. Since 1971 he has been president of
Brigham Young University, also serving as a professor at
the Brigham Young Law School. His subjects are criminal
procedure and trusts and estates. He has published numerous
articles in the field of criminal justice, including a most
highly regarded analysis and critique of the exclusionary
rule of the Fourth Amendment. ("Studying the Exclusionary
Rule in Search and Seizure," 37 University of Chicago Law
Review 665 (1967)). Other publications include "The
'Original Writ of Habeas Corpus in the Supreme Court," 1962
Supreme Court Review 153, and "Legal History in the High
Court-Habeas Corpus,' 64 Michigan Law Review 451 (1966).
He is the co-author of a casebook on Trusts; a co-author
of a book on A Criminal Justice System and the Indigent,
and of The Criminal Justice System in the Federal District
Courts. He was the editor of a volume on The Wall Between
Church and State. Since 1971, he has been a member of the
editorial board of Judicature and the Journal of Legal Studies.
Mr. Oaks has also served on the American Bar Association
Committee to Survey Legal Needs since 1971, and as counsel
to the Bill of Rights Committee of the Illinois Constitutional
Convention in 1970.
FORD
JUDGE PAUL H. RONEY
Judge Roney, 53 years old, received his B.S. degree
from the University of Pennsylvania in 1942 and, after
serving as an Army Reserve staff sergeant during World War
II, received an LL.B. from Harvard Law School in 1948. From
1948 to 1950, Judge Roney worked for the predecessor of the
Dewey, Ballantine firm in New York, and then moved to
St. Petersburg, Florida, where he engaged in private practice,
mostly involving state court litigation. He was active in
local bar and community affairs. He was appointed to the
U.S. Court of Appeals for the Fifth Circuit in October, 1970.
The ABA Committee on Judicial Qualifications rated him well
qualified.
Since he has been on the Court of Appeals, Judge
Roney has written around 200 opinions, including relatively
few concurrences and dissents,
Judge Roney's views in criminal matters, especially
those involving constitutional issues, are generally conservative.
In West V. Louisiana, 478 F,2d 1026 (1973), Judge Roney
dissented from a holding that a state prisoner may challenge
his state criminal conviction on grounds that his retained
(as distinguished from appointed) counsel failed to provide
an effective defense.
In U.S. V. Allison, 474 F.2d 286 (1973), Judge Roney
reversed a criminal conviction, holding that large portions
of the defendant's grand jury testimony read by the prosecutor
at the trial were irrelevant and inadmissible.
In Hawkins V. Town of Shaw, 461 F.2d 1171 (1972),
Judge Roney dissented from an en banc holding that gross
disparities in the municipal services provides between white
and black neighborhoods, though not clearly motivated by
evil purpose or intent, were apparently the product of neglect
with "clear overtones of racial discrimination." Judge Roney's
dissent was on the basis that the city must be allowed to
show in rebuttal that the disparities were in fact the product
of rational judgments based on factors other than race.
THE
FORD
JUDGE J. CLIFFORD WALLACE
After serving in the Navy from 1946 to 1949, Judge
Wallace, aged 46, graduated from San Diego State College
(B.A. 1952) and the University of California Law School
(Berkeley) (LL.B. 1955). At law school, he was a member
of the Board of Editors of the University of California
Law Review. He became associated with the law firm of
Gray, Cary, Ames & Frye (in San Diego) in 1955, became
a member of that firm as a partner in 1962 and continued
with that firm until 1970 when he was appointed District
Judge for the Southern District of California, The ABA
Committee found him well qualified for this appointment.
As District Judge, he published six opinions in his two
years. In 1972, Judge Wallace was appointed to the U.S.
Court of Appeals for the 9th Circuit. The ABA Committee
rated him well qualified.
Prior to his appointment to the Bench, Judge Wallace
was active in various professional bar organizations, and
also he has been prominent in work for the Mormon Church.
Judge Wallace is an able, intelligent judge and is
markedly conservative, especially in criminal law matters.
In his three years on the Ninth Circuit, Judge Wallace has,
with a few notable exceptions, seldom written the opinion
for the Court in particularly difficult or important cases.
His opinions are usually brief, clear and to the point. One
of his more important cases was Jones V. Breed, 497 F.2d 1160
(1974), holding that, once jeopardy attaches in a juvenile
court adjudication hearing, a minor may not be retried for
the same offense as an adult. Judge Wallace wrote the opinion
for the Court in U.S. V. Bowen, 500 F.2d 960 (1974), holding
that the Almeida-Sanchez V. United States, 413 U.S. 266 (1973)
(which held invalid searches without a warrant by roving
border patrols) was not retroactive as applied to fixed check
points. Judge Wallace dissented from that part of the majority
which held Almeida-Sanchez applicable to invalidate a fixed
checkpoint search without warrant or probable cause.
CHARLES E. WIGGINS
Charles E. Wiggins, of West Covina, California; born
in E1 Monte, California, on December 3, 1927; attended public
schools in E1 Monte; graduate of the University of Southern
California with a B.S. degree in Business Administration and
Finance; graduate of the University of Southern California
School of Law; former member and chairman of the city of E1
Monte Planning Commission; former councilman and mayor of the
city of E1 Monte; recipient of the Junior Chamber of Commerce
"Young Man of the Year" award; practicing attorney in the
city of El Monte; member of the Advisory Board to the District
Attorney of Los Angeles County; veteran of 4 1/2 years, U.S.
Army, Infantry; 32 months overseas, World War II and Korea;
first elected to the Congress November 8, 1966; member of
the House Judiciary Committee and House Select Committee
on Crime.
BALD
as.
FROM
THE WHITE HOUSE
WASHINGTON
November 17, 1975
MEMORANDUM FOR:
RICHARD B. CHENEY
SEAL
FROM:
DOUGLAS P. BENNETT
LIBRARY
SUBJECT:
Supreme Court Nomination
In view of the critical nature and importance of this appointment, it is ab-
solutely clear to me that the President and you should maintain total control
over the selection and processing of this appointment. However, it also
strikes me that the many issues and problems with which you must deal each
day will make it physically impossible for you to track it as closely as you
would like. Clearly the qualifications of the candidate will be superb. There-
fore, substance is not an issue but superb handling of the processing of the
appointment is of utmost importance. I recommend, therefore, that this
handling be done by the Office of the Counsel to the President, perhaps by
Phil Buchen or in part delegated to Ed Schmults. Since my office is equipped
and has experience in the processing of appointments (identification of ap-
pointee, working with Ron Nessen from a press standpoint, legislative
strategy, etc.), I suggest that I assist the Counsel's office during this pro-
cessing.
Since the ABA determination respecting the people on the Attorney General's
list will be available on Tuesday, it is at that point where some crucial de-
cisions must be made. The constituencies with which we must deal to effect
excellence in processing include the candidates themselves, the legal com-
munity, the press, the Congress and ultimately the American public. With
respect to each of these constituencies, I think it wise to consider the following
options available to the President at each stage of the processing.
Candidates
The initial decision to be made is whether or not the American Bar
Association ratings together with the full list of names submitted by the
Attorney General should be made public. It seems to me there are four
options (1) release the whole list, (2) pare down the list and release it,
(3) do not release any of the names, and (4) release the names on the Attorney
General's list plus any other names the President wishes to add. The obvious
determination to be made is whether or not to release the American Bar As-
sociation ratings. I would guess that one way or another the ratings will leak
- 2 -
to the press just as did the names. The question is whether or not it would
be fair to any of the candidates to release names and ratings. It strikes me
that from the candidates standpoint, any attorney in the country would love to
have his name suggested in the press as being under consideration for this the
most eminent of legal posts. It is a difficult question respecting these ratings.
If I am not mistaken, a precedent was set when a list of names was given to
the American Bar Association and ratings on those listed were requested. Since
that determination was made last week, the question is, how do we handle ad-
ditional names. If the names continue to be all excellent ones, there should be
favorable press. If the names include women there could be an enormous swell
of support for a particular woman or for the appointment of a woman. My par-
ticular instincts are that the White House release no names and in particular no
ABA ratings.
With respect to additional names the President may wish to consider, it
would seem inadvisable to release those names which will become known as
"the President's list". I am inclined to think that we should let the press
speculate on the Attorney General's list and I do not believe that it would be
harmful to any of those candidates already known to the press. Meanwhile,
if so desired, the President can review additional names and this information
can be held very close.
Legal Community
The legal community will be critically eyeing the speculated candidates
under consideration. Since the American Bar Association has already rated
the Attorney General's candidates, it would seem that if and when the Presi-
dent determines another list that it would be advisable to let the ABA do a
check on those individuals. We may rest assured that the ABA will publicly
disclose its ratings of the potential nominee and will certainly testify at that
person's hearings. It would seem prudent, therefore, not to approach the
ABA until the President has determined a final list of potential nominees.
At that time because of the ABA's de facto influence on the process, I guess
we will have to submit those names for consideration by the ABA.
The Press
The handling of the press is, of course, one of the most critical elements
in this whole process. I strongly recommend that all press inquiries be handled
solely by the White House Press Office - Ron Nessen or Bill Greener. The
Justice Department should not be commenting and clearly no one else in the
White House should be commenting with the sole exception of Philip Buchen.
Perhaps a short space of time should be set aside each morning before the
press briefing so that Ron is fully prepared on this issue. Questions and
answers should be prepared each day in anticipation of what may be forth-
coming from the White House press corps. Since any information should be
maintained very confidential, it would seem to me that a meeting between
FORD
- 3 -
you and Ron and anyone else you consider appropriate would be the best way
to prepare Ron. We should attempt to build to a crescendo at the time of the
announcement. Getting there, and from a press standpoint, is very important
to be capped by the quality of the nominee.
The Congress
This is, as always, a very difficult question to resolve; namely the extent
of consultation with Members of Congress. Quite obviously, the more people
aware of who is under consideration, the more likely there is a premature
release of information. We could consult on process, receive suggestions
and divulge names if so desired. Normal congressional clearances, in my
opinion, are not required nor, I believe, are expected. But, our leadership
will expect some consultation and some foreknowledge of the nominee. A way
to accomplish this might be for the President to call a Republican and Demo-
crat Leadership Meeting in a matter of hours before the nomination is made
and advise them of the final candidates and seek their advice. This could be
done even though the President has made his decision. He may wish to con-
sult further with the top leaders before such a meeting but it strikes me that
the final consultation should be of a bi-partisan nature.
The American Public
This, the most important of all the constituencies, would be affected by
the manner in which the preceding constituencies are handled and in the
final analysis, the quality of the nominee. It would seem that the remaining
question is how the actual nomination is made. Options include the President
himself, Phil Buchen or Ron Nessen. It might make sense for the President
to go on the air alone or with the Counsel to the President or the Attorney
General going with him. There are all sorts of options here but I think be-
cause of the importance of this appointment, the President may wish to an-
nounce it himself.
Many names are coming to me and I will turn them over to Phil Buchen and
you on a daily basis. I will also keep a running account. As I suggested before,
all recommendations in writing, I think, should be responded to be Phil Buchen.
The question of FBI investigations and conflict-of-interest examinations of the
candidate or candidates needs also to be addressed. In particular, the FBI
investigations trigger widespread speculation. For that reason it might be
smart to do it for all on a final list of candidates. An option is to wave the
FBI investigations.
This is a rather lengthy collection of thoughts and I feel a further discussion
is merited so that some decisions can be made at the earliest opportunity.
FORD
LIBRARY
Monday 11/24/75
11:13 Kathy Berger in Cheney's office advises the President
talked with Senator Griffin twice on Sunday.
FORD LIBRARY
Comment at 6:00 p.m. on November 12, 1975 with Request
that Comments be Given Us by November 17.
[ca. 11/13/75]
ARLIN M. ADAMS
ROBERT H. BORK
ALFRED T. GOODWIN
ROBERT P. GRIFFIN
VINCENT LEE MCKUSICK
DALLIN H. OAKS
PAUL H. RONEY
JOHN PAUL STEVENS
J. CLIFFORD WALLACE
WILLIAM H. WEBSTER
CHARLES E. WIGGINS
SERALE E. FORD LIBRARY
Monday 11/10/75
will
wnot
1:55 Mr. Schmults:
Checked with the Chief Justice's secretary.
Lay
be
The letter was sent in to the Justice in Chambers,
and he sent word to hold up on the letter until he
came out.
They will give us a call when Mark Cannon leaves
to bring it to us.
BERAIL FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
11/25/75
Eva:
Ken asked whether Mr. Buchen
wants him to draft a bill re the
attached.
Thanks!
dawn
Rele in Congross man's
:
other Office"
BALE
November 15, 1975
Buchen
DICK:
Attached is a copy of the legislation that Griffin gave us
that would be a general statute. I have given it to you
and given it to Lynn in the past but nothing has
happened on it. It strikes me that someone ought to
do something about it.
DR
KC J. é?
SEAL R. Toke LIBRARY
Notwithstanding any other provision of law, if a
Member of Congress resigns to accept appointment to any
other civil office under the authority of the United States, the
compensation and emoluments available during the remainder
of the time for which he was elected shall not exceed the level
of compensation and emoluments which would have been
available for service in such office at the beginning of the time
for which he was elected.
(See Article I, Sec. 6, Clause 2 of the U. S. Constitution.)
n. FORD Tenant
1 §6,cl.1
CONSTITUTION
Note 8
8. Civil arrest or process
diverted certain payments to his wife to
United States Senator while serving in
hinder, delay and defraud creditors. Peo-
official capacity is not exempt from
ple on Complaint of James V. Powell,
service of civil process in District of Col-
1963, 243 N.Y.S.2d 555, 10 Misc.2d 593.
lumbia under constitutional privilege
Immunity of Congressman from arrest
from "arrest" Long V. Ansell, 1931, 60
does not render him immune from serv-
F.2d 386, 03 App.D.C. 63, 21 ALR
ice of process. Id.
1466 affirmed 55 S.Ct. 21, 203 U.S. 76, 79
L.Ed. 208.
9. Status of Congressman
The privilege given by the last clause
Count of indictment charging defend-
of this section does not protect from lia-
ants with conspiracy to defraud United
bility for libel based on the distribution
States by having defendant Congressman
by him of copies of the Congressional
make speech in Congress was uncon-
record containing a report of a defama-
stitutional as applied to defendant Con-
tory speech made on the floor of the
gressman because of this clause pro-
Senate. Id.
viding that for any speech or debate
A member of Congress is entitled to
in either House, Senators and Repre-
exemption from service of process upon
sentatives shall not be questioned in any
him, although it is not accompanied with
other place, but this clause did not ap-
the arrest of his person. Miner V. Mark-
ply to defendants who were not mem-
ham, C.C.Wis.1S86, 2S F. 3S7.
bers of Congress. U. S. Y. Johnson, C.A.
Md.1964, 337 F.2d 1S0, affirmed 86 S.Ct
Defendant, who willfully failed to obey
740, 383 U.S. 169, 15 L.Ed.2d 681, certio-
subpoena in supplementary proceedings,
rari denied 87 S.Ct. 44, 134, 385 U.S. 816,
though a United States Representative,
SS9, 17 L.Ed.2d 77, 117.
was guilty of civil contempt, and he
would be fined $250 and would be sen-
Constitutional privilege granted Sena-
tenced to 30 days in jail, but he would
tors and Representatives from arrest nn-
be excused from imprisonment if he
der this clause during their attendance
should appear for examination. James
at session of their respective houses did
Y. Powell, 1966, 274 N.Y.S.2d 102, 26 A.D.2d
not apply to judgment debtor, a Con-
295, affirmed 277 N.Y.S.2d 135. 18 N.Y.2d
gressman, against whom creditor sought
931, 223 N.E.2d 562, motion granted 279
order of arrest based on acts committed
N.Y.S.2d 972, 19 N.Y.2d 813, 226 N.E.2d
by debtor during period when Congress
705.
was not in session. James V. Powell,
1961, 250 N.Y.S.2a 635, 43 Mise.2d 314.
In view of provision giving to Senators
and Representatives immunity from ar-
This provision applies to a delegate
rest, except in certain cases, during at-
from a territory as well as a member
tendance at sessions and in going to and
from a state; he is entitled to a seat on
returning therefrom, member of Con-
the floor of the House as the representa-
gress must respond to civil process and
tive of the people of the territory, elected
is liable for all consequences of disre-
with all the powers, rights, and privi-
garding civil process except that he cen-
leges of a member from a state, except
not be subjected to arrest, and conse-
the power to vote, and with this excep-
quently there is no immunity from serv-
tion he is a member of the House of
ice of subpoena, since a subpoena is not
Representatives, and entitled to the same
an "arrest." Id
constitutional privileges. Doty V. Strong.
1810, 1 Pinn. (Wis.) 81.
Immunity under this clause giving to
Senators and Representatives immunity
10. Determination
from arrest, except in certain cases, dur-
ing attendance at sessions and in going
Judgment creditor of member of House
to and returning therefrom is immunity
of Representatives could not maintain
from civil arrest, and there is no exemp-
quo warranto proceeding to determine
tion from civil process short of arrest
right or title of member to office merely
Id.
because of her status as judgment cred-
itor who was unable to obtain arrest of
Congressman's immunity from arrest
member because of his congressional in
did not make him immune from service
munity. Application of James, D.C.N.Y.
of summons based on claim that he had
1965, 241 F.Supp. 858.
Section 6, Clause 2. Holding other offices
No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority
194
SEALS
COMPENSATION, ARREST, ETC. 1 § 6, cl. 2
at the United States, which shall have been created, or the Emolu-
ments whereof shall have been encreased during such time; and
no Person holding any Office under the United States, shall be a
Member of either House during his Continuance in Office.
Notes of Decisions
Appointment during tenure =
S. Resignation and forfeiture of office
Nature and scope of prohibition 1
Where a person holding an office in-
Resignation and forfeiture of office 3
compatible with that of senator is elect-
Service in armed forces 4
ed to the latter office, his resignation of
the former before offering to assume the
duties of the latter will remove any ob-
Jection founded on this clause. Stanton
Library references
V. Lane, Taft El.Cas. 205.
Officers 30.3.
United States 0=12, 61.
Continuing to execute the duties of an
C.J.S. Officers $ 23.
office under the United States after one
C.J.S. United States §§ 13, S4.
is elected to Congress, but before he
takes his seat, is not a disqualification;
L Nature and scope of prohibition
such office being resigned prior to the
taking of the seat Earle, Cl. & H.E.
The incompatibility is not limited to
Cas. 314.
exercising an office and at the same
time being a member of elther house of
If one, after election to Congress, ac-
Congress; but It equally extends to the
cepts a state office, and subsequently re-
case of holding-that is, having, keeping.
signs the same before his term in Con-
possessing, or retaining-an office under
gress is to begin, he will not thereby be
such circumstances. Hammond V. Her-
rendered incapable of holding his seat in
rick, CI. & H.El.Cas. 287-289.
Congress. Washburn V. Ripley, CI. & H.
El.Cas. 679-682.
= Appointment during tenure
The acceptance by any member of any
Where a person was elected and quall-
office under the United States, after he
fied as a United States senator for a
has been elected to and taken his seat in
term explring In March, 1883 and in
Congress, operates as a forfeiture of his
March, 1SS1, he resigned to accept the
seat. Van Ness, Cl. & H.El.Cas. 122.
position of secretary to the Interior,
If the office to which a person is ap-
which office he soon thereafter resigned,
pointed does not in fact exist, such ap-
after his second resignation the office of
pointment will not render him ineligible
tariff commissioner was created by Act
to election as senator. Stanton Y. Lane,
of Congress, and the attorney-general
Taft El.Cas. 205.
advised that this section of the Constitu-
Uon disqualified him for appointment as
The formal resignation of an office
commissioner. Appointment to Civil Of-
held by a member-elect is not necessary
fice, 1882, 17 Op.Atty.Gen. 365.
if the dutles of it have so far ceased as
to have operated a virtual abolition of
The nomination and confirmation of a
the office. Munford, CI. & H.El.Cas. 316.
person who at the time is ineligible, for
the office by force of this clause, cannot
4. Service in armed forces
be made the basis of his appointment to
It would be a sound and reasonable
such office after his ineligibility ceases.
Appointment to Civil Office, 1SS3, 17 Op.
policy for the Executive Department to
Atty.Gen. 522
refrain from commissioning or otherwise
utilizing the services of Members of Con-
A representative in Congress does not
gress in the armed forces, and the Con-
become a member of the House until he
gress by exemptions in the Selective
takes the oath of office as such repre-
Training and Service Act of 1940, 50 U.
sentative; therefore, he may lawfully
S.C.A.App. § 305 [now covered by 50 U.
hold any office from his election until
S.C.A.App. $ 456], has recognized the
that time. 1S74, 14 Op.Atty.Gen. 408.
soundness of this policy. 1943, 40 Op.
One accepting and holding an office
Atty.Gen. Dec. 23.
incompatible with that of representative
Both the House and Senate, exercising
la Congress is ineligible to the latter of-
their constitutional prerogative, have de-
fice. Bowen Y. De Large, Smith Ell.Cas.
termined upon occasions in the past that
90.
service with the armed forces of the
195
SERAID
Total