THE TERMS of nine members of the Legal Services Board expired when the 97th Congress adjourned last month. All had been appointed by President Reagan when Congress was in recess, so they had been able to serve even though their nominations were never confirmed by the Senate.
On Friday, the president moved to fill four of these places with new appointees. This time, however, even though the appointments were made while Congress was out of town, there is some question as to whether the nominees can begin to serve before they are confirmed. According to the Senate parliamentarian, a 1962 ruling by the attorney general-- still valid precedent--requires that Congress must be out of session for at least 30 days if appointments made during its absence are to qualify for the special treatment accorded recess appointments.
The White House disputes the relevance of the 1962 ruling and maintains that true recess appointments have been made and that the appointees are properly in office without Senate confirmation.
Little is known in Washington about three of these nominees, except the basic facts provided in a White House press release. Milton M. Masson is an Arizona businessman and a member of the U.S. Synfuels Corporation; Robert E. McCarthy is a partner in a San Francisco law firm; E. Donald Shapiro, a registered Democrat, is dean of the New York Law School. But most Washingtonians will remember the fourth nominee, Donald E. Santarelli, who served as associate deputy attorney general during the Nixon administration and was later director of the Law Enforcement Assistance Administration. We hope all the nominees are of Mr. Santarelli's stripe. He is a conservative. He is also a man with a good reputation in legal circles, a teacher and practitioner with a history of public service and a person whose background gives no indication of a built-in bias against legal services for the poor. We have every expectation that he would not have accepted this appointment with an understanding that he would dedicate himself to undermining the work of the corporation, and we expect that because of his experience on the Washington scene, he will have some influence over his colleagues.
The president wants to abolish the Legal Services Corporation, but it has been made clear to him that Congress will not let it die. For two years, the administration tried to work its will by appointing opponents of the corporation to the board and by using the recess appointment procedure to put them in place without Senate confirmation. We hope these new appointments indicate a change of position, an acceptance of the fact that the Legal Services Corporation will continue and a decision to name a board that will run the corporation conservatively, but not try to kill it. Such a reasonable approach would mend some fences with Congress and indicate an increasing concern for the poor, the corporation's ever-growing clientele.