Evening star., 1937-08-13

kluX Klan elements
There will be a fight against the
confirmation of Senator Black. 1t
will begin, undoubtedly, on a broad
question of whether the appointment
itself is constitutional, but it will
ultimately revive almost every aspect
OF the recent accusations of political
motive made against the President
when the bill to enlarge the Supreme
Court was before the Senate.
The eligibility dispute rests on this
clause of the constitution which says:
NO Senator or Representative shall
during the time for which he was
elected, be appointed to any civil
office under authority of the United
States which shall have been created
or the emoluments whereof shall have
been increased during such time - *'
Effect of Provision.
Under the above provision. MI
Black would not be eligible to accept
appointment as associate justice of the
Supreme Court because the civil
Office to which he has been nomin-
ated by President Roosevelt is a posi-
ton created as a result of an act Of
Congress passed on March l. 1887
1t is we'll known that previously no
assurance could be given to members
of the Supreme Court that when they
retired they could continue to receive
their then existing salaries.
Congress endeaVored to provide the
assurance by insisting a justice could
retire instead of resigning. 1t will
be noted that in Justice Van Devan-
ter's letter last May, as we'll as in
President RooseVelt's acknoWledg-
ment, the word resign" was never
used
This correspondent has held the
view that vacancy has existed ever
since Justice Van Devanter withdrew
from the bench. and that a vacancy
does exist now, but that the character
of the vacancy is one that has been
surrounded with special congress
slonal action, and therefore the va
cancy has been created" during the
present session Of Congress
Inasmuch as Senator Black was
NEGLECTED. in 1882 and his present
term does not expire until January,
1889, he comes within the provision
OF the Constitution which forbids the
appointment of any Senator or Rep
Fesentative to any civil Office which
khall have been created or the emolu-
rnents whereof shall have been In
creased" during the time for which
.the Senator was elected
1t will be argued by Senator Blacks
supporters that the same objection
should have been raised against Sen
'stor Robinson This correspondent
|Dn May 19, in a dispatch to the news
papers, raised such question and
wrote:
The Constitution forbids the ap-
lrolntment Of any member of the
House or Senate to any Office which
has been created during the term
served by such member. Is the va
|cancy now created by Mr.. Van De-
tanter's withdrawal a different kind
'of vacancy from that which could
exist before March /, 1887 when the
retirement law was passed., and if
1t is, will this not disqualify Senators
Robinson of Arkansas and Wagner
of New York or any of the other men,
bers of the present Congress who re-
|reive the appointment in place of Mr..
Van Devanter?"
Remedy to Problem.
But the constitutional question
would have yielded an easy remedy
pr Senator Robinson had been ap-
pointed, because there would have
been put through both houses with
put discussion a clause repeating the
ect OF March !, 1887, and it is prob