The Waterbury Democrat., 1937-10-09
] . BEHIND l THE SCEIESI
 N WASHINGTON i" ROONEY pUTcHER-A Democrat Washington
 Correspondent
Mir. Levitt'S ' Suit To Bar
 Black Is Too Complicated

Washington, Oct. g - Life gets to seem terribly complicated when you sit and listen to lawyers dis- cuss the merits and demerits of AL bert Levitt's suit to have Justice Hugo Black disqualified as & mem- Der of the supreme court.
 Facially, Levitt's case seems quite simple to many laymen. The Constitution says that no senator or representative, during his elected term, shall be appointed to any office the emoluments of which have been increased during that term.
 This year Congress passed the Sumners-M McCarran bill permitting justices to retire on $20,000 6 year, providing they have reached 70 and have served 10 years.
 Previously there was no provision for retirement pay for justices, al- though when a justice resigned con- gress customarily voted him his salary for life.
 Levitt says the emOlument of Supreme Court office was in- creased and that Black hence Is ineligible. Then he makes his second point, which also has been made by Senator Borah:
 Justice Willis Van Devar1ter's re- tirement did not create @ vacancy on the court. So there was no seat for Black to fill, says Levitt. Retirement Is Optional t
 The supreme court itself has held that when a circuit or district federal judge retires instead of re- signing, he, under @ similar law, does not lose his status as a judge.
 One of MT. Levit's points at . time, please. Did Congress in- crease the emOlument of Blacks new office? Granted, say some of the lawyers, that 1t did increase the possible emolument by statute. But retirement is optional. And who knows whether Black will ever retire?
 Most of the other justices are old enough to retire, but still refrain.
 If Black served on the court for the rest of his life, 1t could hardly be said that the emolument of hE office had been increased insofa, as he was concerned. The in- crease, 1t has been contended bS those who secuted Levits chances of success, can hardly be called more than hypothetical in- crease"
 Court Hasn't "Bar" Power
 Another answer to the Levitt suit is the contention that the Supreme Court has no power to decide aS to the qualifications or eligibility of its own members.
 The Constitution says leach House shall be the judge of the qualifications of its own members" but 1t fails to give the court such . prerogatlve. Appar- ently the president, who is speci- fically given the appointment power, is the only designated judge as to qualifications of jus tices. His power is limited to ape pointments when vacancies occur, by an act of Congress which sets the number of justices at nine.
 In relatively recent dissenting opinions as to New Deal laws, jus. tices have been calling each other some rather harsh names. If the court, which decides things by ma jority vote, can bar or expel one of It's members what Is there to keer five conservatives from bouncing four liberals or vice versa? Anyway, that's the question tho New Deal lawyers have been fling ing around.
 No Court at All
 As to the other point-that there isn't any vacancy-it was det1niteiy noted on the first day of the courts present term that Justice tor IS !. ex-Justice?) Van Devanter didn't appear and that his place was taken by Hugo Black. - A.. If Black hadn't been there the court would be operating witn eight justices. .o
 And if all the justices over 70 had retired and 1t had been held that their retlrements caused no vacancies, there would have been only three of them-StOne, Rob- erts and CardoxO-left to do the work. In time, according to op. nonents of the Levitt-BOrah theory, those three might also re- tire, leaving the nation with no court at all.
 All of which gives some idea why most of those who crowded tho courtroom on Black day" thought 1t looked as if Black were firmly planted in his seat. (Copyright 1887, NEA Service, Incl