Evening star., 1937-09-16
Senators Lean to Theory Unless Black
Denies Khan Link.
Bx g. GOULD LINCOLN.

BX q. GOULD LINCOLN.
An impression grey on Capitol Hill
today that, failing to receive . nat as-
sertion from Associate Justice Hugo L.
Black that he had not been . member
OF the Ku Klux KAN, President Roose-
velt would seek to prevail on the
former Alabama Senator to resign
from the beuch. There was nothing
tangible from the White House on
which Senators sti1l remaining In
Warrington might base such . belief,
but, nevertheless, it was expressed In
private conversation.
The publication Of circumstantial
data to the effect that Justice Black
had been : member Of the Klan al
ready has received comment from the
President. Also, 1t has been intimated
In informed quarters the President
considers that the Senate, II Black
has been member Of the Khan, was
derelict In its duty in not investigating
the matter thoroughly before con-
flrmation.
Any effort on the part Of the Presi-
dent to pass the responsibility In this
matter to the Senate VIII be sharply
criticized by Senator'S who voted for
confirmation of the new associate
justice. 1t was pointed out it was the
administration forces in the Senate
Judiciary Committee which insisted on
immediate and favorable report Of the
nomination Of Black to the Senate. A
motion was made by Senator Diete-
rich OF Illinois, as soon Is the COM
mittee met, to report favorably.
Legality Attacked.
When the nomination Of Justice
Black was before the Senate, and even
before it was submitted, the argument
was made by Senator Borah Of Idaho,
Senator Austin of Vermont and some
others that no vacancy in the Supreme
Court existed. under the law. and that,
therefore, the President had no right
to make an appointment. Tho law
which provides that the Supreme
Court shall consist of chief justice
and eight associate justices, they con-
tend. has not been repealed. Associate
Justice Van Devanter, now retired,
continues to be member Of the su-
preme Court. Only death or resigna-
tion, they insist, could remove him.
They assert, therefore, that Black be-
comes tenth member OF the court,
In violation Of the law which says
there shall be nine members.
The Summers act, providing for
retirement Of justices of the Supreme
Court after 10 years OF age and 10
years service on the bench, the priv
ilege earlier accorded judges Of the
lower courts, did not provide for an
increase in the membership Of the
Supreme Court, but merely gave the
President authority to appoint a sue
cessor to any justice taking advantage
of the retirement act.
So strongly did Senator Borah feel
about the matter, it is now learned.
that he prepared bill authorizing
the President to fill vacancies caused
by the retirement OF justices and ct
the same time providing that the
active membership" of the Supreme
Court should remain at nine. He In
sisted such an amendment OF the law
was necessary to legalize the appoint
ment Of these additional justices of
the Supreme Court.
Borah laid the draft of his bill be.
Tore the Senate Judiciary COMMITTEES
and found it had practically unani-
nous support.
A day or two later, and before he
had offered the bill in the Senate.
he nomination of Senator Black of
Alabama to be a member Of the Su-
oreme Court was sent to the Senate
oy the President.
That was the doom Of Borah's new
Dill. Administration Senators and per.
laps others, members Of the commits
zee. who were friendly to the Black
appointment, Immediately turned
humbs down on the measure. Their
eason was that If such . law were
nacted, specifically creating new and
additional members OF the Supreme
,ourt, no Senator who was . member
4 the Congress enacting that law
vOlild hA a1i0ihln pnv avv><y~k-.~A A.