Evening star., 1937-08-15
In the Twilight Zone.

&
II the Senate should confirm the nomi-
nation of Senator Black to be an asso-
clate justice of the Supreme Court de-
spite the fact that his eligibility to that
Office is questioned on the ground of his
participation in an increase in emolu-
ments of an Office existing during his
term as Senator, the question would
perhaps arise whether the Supreme Court
itself in its capacity of interpreter of the
statutes will accept him as a member
The court has never rejected one who
has presented himself with credentials
Of appointment to that bench. 1t is not
by the Constitution specifically empow-
cred as Congress is, to judge the quail
fications of its own members. Never
theless it might conceivably take cogni-
lance of the undisputed fact that SEN
ator Black was a member of the Senate
and took part in the legislation which
raised the retirement pay of JUS
tices and during that same term of his
Office as Senator he was-if such should
be the case-confirmed by the Senate
as an associate justice.
The Supreme Court as interpreter of
the laws does not initiate proceedings. 1t
passes upon questions that have been
raised first in the lower courts and have
been brought to 1t through the stages
of appeal No lower court could enter
tain such question, having no direct
jurisdiction. No "citizen's suit" could be
Instituted for the purpose of bringing
such a matter to An issue. There is no
provision in the law against a member
Of the highest court sitting in judgment
ment Of which he has participated as
member of the House of Representatives
or of the Senate, though on some occa-
sions justices have refrained from so
participating.
II the Supreme Court should upon its
own initiative re ject the credentials of a
newly named member on the ground that
his participation in legislation increasing
the emoluments of the Office to which
he has been named-even though he
did not personally participate, but was
simply member OF Congress at the time
Of the egislation-there would be no
appeal from its action, for there is no
higher court to which such appeal could
be carried. On the other hand, should
the Supreme Court accept such member
there would be no appeal from its action,
for there is no place where the validity
of decisions participated In by justice
so appointed could be taken.
Therefore, If the Senate should con-
firm this nominee and he should present
himself to the Supreme Court and he
should be accepted as member regard
less of his participation in the legisla-
ton increasing the emoluments of the
office. this question would be definitely
settled, such acceptance standing as a
precedent for all time. 1t is this flnality
which makes important the consldera-
ton by the Senate now, in passing upon
the nomination which has been sent to
1t and by the court itself if the nomi-
nation should be confirmed, of ques
ton which, relatively unimportant as re-
spects the particular issue involved, is
nevertheless decidedly important in re-
gard to the propriety Of nomination Of
this character.
In this connection the signihcation OF
the word "emoluments' has an impor-
tant bearing. The increase of compen-
sation voted by Congress did not relate
to the salaries of justices during their
active service. but to their retirement
pay. Thus, as affects a justice serving
on active duty there is no increase In
emoluments. To enjoy the increase thus
voted. he must resign or retire. 1t is
upon this differentiation that the in
formal opinion of the Attorney General
has been given, and upon 1t also rests the
argument of those favoring the confirna-
ton of this present appointee. Possibly
this contention brings the matter into
that twilight zone within which so many
of the acts Of Congress have been passed
that the Supreme Court has been kept
busily engaged for decades in inter-
probation.