Nominee No. 93

By last month the gentlemen of the Department of Justice had combed their wits and the nation, and compiled a list of some 60 men. Further probing into the lives--private and public--of these 60 eliminated two-thirds of them. Last fortnight, with 20 names before him, President Roosevelt started the blue-penciling which would continue until but one name remained: that of the successor to Willis Van Devanter as Associate Justice of the Supreme Court.

Out. . . . Out. . . . Out. . . . Finally seven names were left. In one group three Federal Circuit Court judges: Sam Gilbert Bratton of New Mexico, Joseph C. Hutcheson Jr. of Texas, Samuel Hale Sibley of Georgia, and Chief Justice Walter Parker Stacy of North Carolina's Supreme Court. In another, three integral cogs of the New Deal: U. S. Solicitor General Stanley Forman Reed of Kentucky, Senator Sherman Minton of Indiana, Senator Hugo LaFayette Black of Alabama.

Left then to choose between judges sitting hundreds of miles from Washington and actual firsthand participants in the New Deal, Franklin Roosevelt chose the group he trusted best, eliminated the judges from consideration. Then it was: Reed, Minton or Black? Black, Minton or Reed? Stanley Reed has been a stanch defender of the New Deal before the very tribunal to which he might now be named, but Stanley Reed is also a bank director. Moreover, Kentucky is already represented on the bench by reactionary old James Clark McReynolds--at this thought Franklin Roosevelt may well have gritted his teeth. So Stanley Reed went out. Two Senators were left, men who might be easily confirmed by virtue of hoary "Senatorial courtesy," which presumes that every Senator is a witness to the irreproachable character of every other Senator. Both Senators had been bulwarks of the New Deal even unto the last ditch of the Court Plan. But Sherman Minton had not reached the Senate until the New Deal was two years old. Besides, the droll McNutt machine had put Sherman Minton into office while Hugo Black was beholden to no machine except his own, grounded in the Alabama backwoods whence he sprang. His mind made up, Franklin Roosevelt wrote in longhand his long-awaited message to the Senate last week: "I nominate Hugo L. Black of Alabama to be an Associate Justice of the Supreme Court."

Poor Boy's Progress. When President Roosevelt sent his nomination to the Senate, only he and Hugo Black knew what was in it and Senator Black's knowledge was hours old. The nomination fell as a bombshell to the press if not to the nominee, whose previous experience on the bench consisted of a year-and-a-half as a "boy judge" in Birmingham's police court. That was in 1910, three years after he had left poverty-bitten Clay County with $1.20 following the burning of the law office young Hugo had managed to set up when he graduated from the University of Alabama Law School.

A term in the Army (on this side) and an unspectacular non-corporation law practice in Birmingham brought Hugo Black up to 1926, when Alabama's late great Oscar Wilder Underwood declined to stand for reelection to the Senate. John H. Bankhead of a proud Alabama family announced for the job. So did Colonel L. B. Musgrove, potent coal operator and angel of the Anti-Saloon League. So did three others, including unprepossessing: Hugo Black. But Hugo Black campaigned the hardest and bitterest. He drove his battered Model T into every cranny of Alabama. He often spent the night at a farmer's house, left next morning after convincing the family and neighbors he was one of them. Most important, he wrested support from Alabama's Ku Klux Klan from Colonel Musgrove, though the Colonel claimed the promise of Klan favor from its national headquarters. Poor-white KKK backing meant election in Alabama in 1926, embarrassing as it might prove to Nominee Black in 1937*

'"The Senate made Hugo Black" runs a saying in Washington. Senators in 1927 sized him up as nothing much: an insignificant-looking son of a crossroads storekeeper and farmer, a poor young lawyer elected by the KKK to take a seat alongside J. Thomas ("Tom-Tom") Heflin. Charles Michelson of the New York World mourned the passing of Southern statesmen like Underwood and Mississippi's John Sharp Williams.

But once in the Senate something happened to Hugo Black. Venerable old George William Norris burned into him the virtues of public power development. Crusty old Thomas J. Walsh, scourge of Teapot Dome, taught him the science of conducting Senate investigations, and became in return Hugo Black's idol. As a disciple of Walsh, Hugo Black set himself up as prime inquisitor of the Senate. Hiding a quick, brittle mind behind a naive countenance and an Alabama accent, trapping witnesses in their own chicanery, Hugo Black pried into steamship and airmail scandals, brought on the Merchant Marine Act after he had proved that the Republican Administration paid as much as $125,000 to a steamship line for transporting a pound of mail. Inquisitor Black seized some 5,000,000 telegrams from Western Union files during his famed investigation of lobbyists in 1935, thereby winning a reputation as a ruthless prosecutor which was of no service to him as a candidate for Judge.

Is Black Red? Significant it is, however, that almost no one has pinned the label "Radical" on Hugo Black. He was not even listed in Mrs. Elizabeth Dilling's ludicrous The Red Network, although Mrs. Roosevelt and Senators Borah and Nye were. Whoever called a Southern Senator radical if he rode into office swathed in the sheets of Klanism and later led filibusters against the Anti-Lynching Bill, as he was planning to do again last week until that controversial measure was withdrawn under compromise? Thus defying classification, Hugo Black stacks up as a curious mixture of prejudiced heredity and openminded environment. A voracious reader, he knows Karl Marx's Das Kapital, prefers Adam Smith's Inquiry into the Nature and Causes of the Wealth of Nations, plunks for regulated, competitive capitalism. With Borah he opposed NRA because he thought it fostered monopoly. Otherwise he has almost un-deviatingly followed Roosevelt without, however, winning a reputation as a Roosevelt stooge.

Is it Legal? Still heard faintly last week in the Senate were some contentions that Hugo Black was constitutionally ineligible for the Supreme Court because he helped increase the emoluments of Justices by voting for the Retirement Bill under which Willis Van Devanter stepped down.* Also bandied about was the Borah proposition that no vacancy existed (TIME, Aug. 16), because Mr. Justice Van Devanter is still subject to call for service. Little mentioned was a more logical legal argument: Presuming that Van Devanter, retired but not resigned, is still a Justice, and presuming that the President has power under the Retirement Act to appoint a tenth Justice, then Hugo Black would be ineligible for the tenth post because he helped create it.

To Hugo Black, as to most of the Senate, these arguments added up to little more than Conservative rumblings and disregard of Senatorial courtesy. The 93rd man nominated for the Supreme Court had every expectation of being confirmed as Justice No. 80. Aged 51, but looking no more than 40, Hugo Black also expected to be the fourth youngest Supreme Court Justice since Abraham Lincoln's time. He wasn't, however, confirmed as quickly as "the World's Greatest Club" is expected to pass upon one of its members. When diffuse Senator Ashurst sought to slip Member Black through without formally referring the nomination to the Judiciary Committee, California's snow-topped Johnson, disregarding tradition, snapped: "I object." More of the Club's bitter internecine strife was reflected after Senator Ashurst proceeded to deliver himself of a Black eulogy, sat down, whispered: "Have I said enough?"

"You've said too damn much already," snapped Carter Glass, one of many anti-New Dealers who saw the appointment as a Roosevelt trick to ram the farthest Left-winger available down the Senate's throat.

When the nomination reached the Judiciary Committee argument became so bitter that Senator Neely, the chairman, left the room. After two hours of bickering, the committee upheld Hugo Black 13-to-4.

Nominee. Modest, unassuming Hugo Black combs a few wisps of sandy hair over his head, chews a cigar although he gave up smoking two years ago. A bachelor until he was 35, he married 22-year-old Josephine Foster of Birmingham years after he met her, a yeomanette, during their War service. With their three charming children--Hugo, 15, Sterling, 12, Martha Josephine, 4--the Blacks live modestly on Washington's Cathedral Ave., have no home in Alabama except the one they rent during election years. Long since prematurely grey, Mrs. Black went to American University two hours a day this year, eager to complete the education she began at fashionable Sweet Briar College (Virginia). Nominee Black takes pride in his cooking, his ability to play almost any given instrument by ear, the fact that he beats his wife regularly at their weekly golf match.

In a Supreme Court Justice none of these things are objectionable. Important, however, is the question of whom he may eventually be objectionable to--liberals or conservatives--once he is on the bench. Justice McReynolds mounted it as Wood-row Wilson's trust-busting Attorney General. No man can assert that a mellowing Justice Black will revert to hereditary Southern conservatism. Neither can any man predict the course of a Justice's convictions once he is secure for life in a $20,000-a-year job, all trials of reelection forever behind him. Those who know trigger-brained Hugo Black best deny that he can be counted a. Roosevelt yes-man in the future.

*Said Washington wags last week: "Hugo won't have to buy a robe; he can dye his white one black."

*Says Article I of the Constitution: "No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased during such time. . . ." Actually the Retirement Act does not increase the emoluments of Justices but guarantees their pensions against reduction.

*John M. Harlan was 44, Charles Evans Hughes 48, Edward D. White 49.

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