Evening star., 1937-08-13
INSTRUMENTATION
QUICKLY APPROVED
BY SUBCOMMITTEE
Group Votes 5 to | in Favor
Of Senator for Supreme
Court Bench.
DEMAND FOR HEARING
OF PUBLIC is DENIED
Borah Reserves Right to Attack
Legality of Appointment
Before Final Action.

The nomination of Senator Hugo L,
Black OF Alabama to the Supreme
Court received swift preliminary ap-
proval today when a Senate judiciary
Subcommittee voted, 5 TO /, to ap-
prove the nomination.
Senator Borah. Republican. of Idaho.
was one of those voting TO approve,
but he reserved the right TO attack
the legality of the appointment be-
fore final Senate action Is taken,
Senator Austin, Republican. of Yer.
mont, was the single subcommittee
member voting no" His demand for
public hearings was voted down.
Austin joined with Borah in oues-
tioning the validity of the nomination
on the theory Black was a member
of Congress when law creating a new
vacancy and increasing the compensa-
ton Of Supreme Court justices was
passed, If this Interpretation of the
new court retirement act is correct,
Black would be ineligible for the post
vacated by the retirement of Justice
Van Devanter
Held Legal BY Cummings
The subcommittee acted few MN
utes after President Roosevelt told a
press conference Attorney General
Cummings had advised him it was
perfectly legal and constitutional to
appoint Black to the Supreme Court.
The President also denied he is going
to press for constitutional amend-
ment on Supreme Court reorganization.
Shortly after the subcommittee ad-
journed. Chairman Ashurst of the full
Judiciary Committee announced that
group would take up the nomination
at its regular meeting Monday Con-
tending there is nothing to the legal
questions suggested by Austin and
Borah, Ashurst expressed his own view
that Senator Black is eligible and will
be confirmed by Thursday or Friday. or
certainly before the Senate adlourns"
After the subcommittee acted. two
new Senators came out as open oppo-
nents to confirmation. They were
Senators Burke Democrat. of Nebraska
and White, Republican, of Maine.
Burke said he agreed with Austlns
contentious and would join the Ver-
monter in presenting that legal view TO
the full committee. Senator White
said he felt Congress had increased
the emoluments of the Office and that
therefore members of Congress we're
ineligible.
In addition to Borah, those voting
to report the nomination favorably
to the full Judiciary Committee were
Chairman Neely of West Virginia and
Senators Logan. Kentucky; Dleterlch.
Democrats and all supported the ORG
inal Supreme Court reform bill.
The subcommittee voted after less
than an hour of discussion.
Citing the Summers retirement law
of last March, under which Justice
Van Devanter stepped down from the
bench, on June 2, Austin inquired:
Can member of the Senate become
a justice to fill an Office. first. that
was created during his incumbency
in the Senate, or, secondly, to an Of
fee the emoluments of which we're
increased during his incumbency?"
Borah Reiterates Contention.
Senator Borah reiterated his con-
tention that there is no vacancy be-
cause Congress has failed to provide
specifically for the replacement Of
justices to retire under the Summers
act. He said, however, he saw noth-
ing to be gained by delaying the oues-
ton in subcommittee. and voted to
report the nomina ton after reserv-
ing the right to raise the legal issue
OH the floor
After iauding the ability and ouali-
fications of Black, Senator Dieterich.
made the motion to report favorably.
Austin promptly offered as substitute
that the subcommittee reserve iude-
ment until it has time to prepare an
opinion, supported by authorities, on
the legal questions raised.
The substitute was voted down, 5 to
/, after which the original motion to
report carried by the same vote.
AS soon as Dieterich had moved to
report favorably in the subcommittee,
Austin required:
I'D like to ask the subcommittee
to consider whether we ought to ap-
prove or disapprove without any effort
to ascertain whether the nominee is
eligible. Now, we have all come
through very strenuous period, in
which we have studied and discussed
eligibility, but we did not specialize
on this case. There has been some
(See BLACK, Page A-5)