THE JUDICIARY: Fair or Not, It's Legal

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When an individual's right to her Government job collides with the Government's right of national security, then national security comes first. So ruled the nation's second highest court last week.

In a 2-to-1 decision, the U.S. court of appeals in Washington held that the Government's loyalty program—created two years ago by presidential order—is constitutional. Loser of the decision was Miss Dorothy Bailey, a slim, 39-year-old Uni versity of Minnesota graduate who was fired from her $8,000-a-year job in the U.S. Employment Service because President Truman's three-man Loyalty Review Board found "reasonable grounds" for believing she was "disloyal" to her Government.

The first federal employee to be dismissed after exhausting all appeal privileges short of the courts, Miss Bailey had been unable to convince the board that she was not tainted with Communism, although she had produced 60 affidavits to help her. The chairman of the board which ousted her, Republican Lawyer Seth Whitley Richardson, admitted that he had not "the slightest knowledge" of who Miss Bailey's accusers were or how trustworthy their information. The board had only seen the FBI's anonymous reports gleaned from unsworn informants.In his dissent to the court's decision, Justice Henry W. Edgerton objected: "Without trial by jury, without evidence and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been ..." A found disloyal Government to the worker's career and Government reputation, he added, are now "at the mercy not only of an innocently mistaken informer but also of a malicious or demented one unless his defect is apparent to the [FBI] agent who interviews him . . . We cannot preserve our liberties by sacrificing them."

The majority, Justices E. Barrett Prettyman and James M. Proctor, conceded that Miss Bailey had been caught up in "harsh rules which run counter to every known precept of fairness to the private individual." But they decided that possible injury to her was not the central issue: "We do not think that the individual rights guaranteed by the Constitution necessarily mean that a Government dedicated to those rights cannot preserve itself in the world as it is." Anyway, the Constitution was not involved, since no one has a constitutional right to a Government job. "If [the President] thinks that under present circumstances only those whose loyalty is beyond suspicion should be employed by this Government, the policy is his to make."

Miss Bailey's next—and last—resort was the U.S. Supreme Court.