The Judicial Bookshelf DONALD GRIER STEPHENSON, JR. Numerous students received their first formal college-level exposure to American politics by way of a textbook of nearly encyclopedic proportions written by Frederic A. Ogg and P. Orman Ray and entitled Introduction to American Government,1 the first edition ofwhich appeared in 1922. In a major chapter on the presidency, the authors insisted that “no monarch or minister in any foreign land has as much actual control over the filling ofpublic offices as does he,2 even as they acknowledged that this appointment power was one that the framers, consistent with the principle ofseparation ofpowers, had purposefully shared with the Senate. The resulting arrangement was not for the purpose ofrelieving the President ofresponsibility for appointment, but, as Alexander Hamilton had argued in The Federalist, No. 76, to check any spirit of favoritism which he might display and to prevent the appointment of “unfit characters from State prejudice, from family connections, from personal attach ment, or from a view to popularity.” Because of the sequence ofevents as the new government got underway in 1789, however, George Washington became Presi dent before any judicial positions, and therefore judicial vacancies, even existed. Chancellor Robert R. Livingston, senior judicial officer in the State of New York, administered the oath ofoffice to Washington on April 3, but it was not until September 24 that the First Congress passed the foundation al Judiciary Act, which created the national judicial system and with it a Supreme Court with six Justices. Yet once that law was in place the new President moved swiftly, nominating six Justices3 on September 24, with their confirmations following two days later. At this point, however, what had been a smooth selection process encountered a hurdle as Washington’s sixth nominee, Rob ert Harrison of Maryland declined to accept, possibly because ofhealth.4 Whatwas to have been Harrison’s seat went to James Iredell, who was named on February 8, 1790 and confirmed on February 10. Among the nation’s forty-four Presidents to date, Washington therefore remains in a unique position in that, as he took office, he knew that his initial work would include staffing a Supreme Court that everyone expected Congress to create. Among his JUDICIAL BOOKSHELF 287 successors, while each presumably has hoped to fill one or more seats on the Court, barely a few have known when that opportunity would in fact first arise. For example, only rarely has an incoming ChiefExecutive both inherited a vacancy and then revived his predecessor’s stalled nomination, as happened with Presi dent James Garfield’s appointment ofStanley Matthews, whose name had initially been placed in nomination by President Rutherford B. Hayes.5 For the rest, it has nearly always been the indeterminate and sometimes possibly even vexing situation of waiting for events to take their course. For an example, one need look no furtherthan some statements in the perhaps self-serving memorandum written by Profes sor Felix Frankfurter soon after Franklin D. Roosevelt became President in 1933, on the occasion when, according to the memoran dum, Roosevelt asked Frankfurter to be Solicitor General and Frankfurter politely declined. As Frankfurter recalled another part ofthis conversation, the President said, “You ought to be on the Supreme Court, and I want you there. One can’t tell when it will come—it may come in my time or not—but that’s the place you ought to be.” Later in the same conversation, Frankfurter wrote that he asked his friend, “Are you aware that before very long you are likely to have two vacancies to be filled west of the Mississippi?” “I then told him that I had good reason to believe that Van Devanter and Sutherland would retire before next Term of Court. That took him by surprise. ‘I hadn’t realized that. But when is McReynolds going to retire—isn’t he going to resign?’ I told him I feared not.”6 Indeed, as the second Roosevelt and other occupants of the White House have learned, simple patience might as well have been listed in Article II among the Chief Executive’s qualifications for office, as the table below illustrates. If one calculates the interval...