[...]

The second clause of the second section of the second article empowers the President of the United States ``to nominate, and by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other OFFICERS of United States whose appointments are NOT in the Constitution OTHERWISE PROVIDED FOR, and WHICH SHALL BE ESTABLISHED BY LAW.'' Immediately after this clause follows another in these words: ``The President shall have power to fill up ?? VACANCIES that may happen DURING THE RECESS OF THE SENATE, by granting commissions which shall EXPIRE AT THE END OF THEIR NEXT SESSION.'' It is from this last provision that the pretended power of the President to fill vacancies in the Senate has been deduced. A slight attention to the connection of the clauses, and to the obvious meaning of the terms, will satisfy us that the deduction is not even colorable.

The first of these two clauses, it is clear, only provides a mode for appointing such officers, ``whose appointments are NOT OTHERWISE PROVIDED FOR in the Constitution, and which SHALL BE ESTABLISHED BY LAW''; of course it cannot extend to the appointments of senators, whose appointments are OTHERWISE PROVIDED FOR in the Constitution [2] , and who are ESTABLISHED BY THE CONSTITUTION, and will not require a future establishment by law. This position will hardly be contested.

The last of these two clauses, it is equally clear, cannot be understood to comprehend the power of filling vacancies in the Senate, for the following reasons: First. The relation in which that clause stands to the other, which declares the general mode of appointing officers of the United States, denotes it to be nothing more than a supplement to the other, for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate. The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments ``during the recess of the Senate, by granting commissions which shall expire at the end of their next session.'' [...]

Hank Greely explains the fate of Abe Fortas: "Fortas had been one of the key lawyers who preserved "Landslide Lyndon's" 87 vote victory in his 1948 race for the US Senate. Johnson used him as a trusted adviser thereafter, successfully nominating for a seat as an Associate Justice of the Supreme Court in 1965. In June 1968 LBJ nominated the very liberal Fortas for promotion from Associate Justice to Chief Justice, to replace Earl Warren, who had announced that he was retiring effective on the confirmation of his successor. Republican Senators and Southern conservative Democratic Senators stalled the nomination, hoping (correctly, as it turned out) that a Republican would be elected and would nominate a conservative successor to Warren. A vote to break a four-day filibuster failed on October 2 and Fortas asked that his name be withdrawn. Johnson's nomination of Fortas was not helped by the fact that LBJ nominated a Texas crony, Homer Thorneberry, a non-spectacular lower court federal judge, to take Fortas's Associate Justice seat.