Evening star., 1937-09-14
klan, Senate and Court,

The nomination of Senator Black of
Alabama to be an associate Justice of
the Supreme Court was sent to the
Senate on the eve of its adjournment for
the session. 1t was desirable that the
appointee be confirmed before the ad-
journment so that he could take his seat
on the bench for the Fall term of court,
to complete its membership. For this
reason and because Of the unwritten
rule of courtesy that member of the
Senate when named for another Office
should be confirmed promptly, the Sen
ate acted in assent to the nomination.
Question was raised, in the Senate, re-
garding the appointee's fitness for the
judiciary on the ground of his alleged
membership In secret order, pledged to
hostility to certain classes and groups
of people, afiliation with which, whether
continued or discontinued, would cause
doubt of his ability to render impartial
justice in his service as member of the
highest judicial tribunal. That question
was brushed aside with the statement
that the appointee had in private con-
versation stated that he was not a
member of the Klan. His denial was
accepted and those Senators who were
disposed to raise the question acquiesced
In the confirmation.
Now evidence appears that Senator
Black was at one time a member of the
order and that he resigned his men,
bership on the eve of campaign for
the senatorship. There would seem to
be no possibility of doubt on the score
OF his membership, however brief and
for whatever reason terminated If, as
has been stated. the President asked him
before making the appointment whether
there was any circumstance initiating
against him in relation to his prospective
duties and responsibilities as member
Of the Supreme Court and he replied by
denial, the President is fully absolved
from responsibility for making an i'm
proper appointment. Such would now
seem to have been the case. The Senate,
however, was definitely deceived. The
specific question was raised both in the
Judiciary Committee when it considered
the appointment and in the Senate itself
when confirmation was moved, and it
was brushed aside as having been an
swered in the negative by both the
appointee and by the head of the Or
ganization.
1t is evident that there has been de-
ception, evasion or deliberate conceal
ment of the truth in connection with
this appointment, or else the present
testimony pointing to the time
perhaps the continued-membershi of
Mr.. Black in the Ku Klux Klan is false
Certainly If the confirmation had not
been effected and the appointment were
still pending an investigation would be
In order and would presumably be had,
to settle this question definitely. But
the Senate has adjourned and unless it
is reassembled by executive call it can
not act in reconsideration of the con-
firmation before the Fall term of the
court begins, when the newly named
associate justice will be qualified for
admission to the bench for immediate
service. There is no precedent for the
court itself to act in recognition of this
situation. 1t cannot go behind the
record of appointment and confirma-
ton. Denial of admission as men,
ber on the ground of tainted title is
beyond the power Of the court to
consider
In these circumstances the wise and
equitable course would seem to be for
the new associate justice to resign at
once and to be given new appoint
ment and, if there is urgency requiring
his early service on the bench, for the
President, under his constitutional au-
thority, to call the Senate in extra ses-
sion to consider the appointment anew.
That is, If the President continues in his
belief that the appointee, whose title to
the Office is now questioned. is fully
qualified and in no manner or degree
disqualified for the Office.