Hugo Black and the K.K.K.

Had it not been for politics, the paths of Franklin Delano Roosevelt and Hugo La Fayette Black might never have crossed. Roosevelt had been born to wealth and to a patrician, manorial legacy in the Hudson River valley. Black came from yeoman stock in rural Alabama, and his birthrights were little more than a keen mind and prodigious energy. But the Democratic party and common political convictions brought these two together, one as the President and the other as a United States senator from Alabama. Now, on the sultry evening of August 11, 1937, they sat facing each other in a cluttered upstairs study in the White House.

 

After a few pleasantries, Roosevelt came quickly to the point. He would like to place the name of Hugo Black in nomination for a seat on the United States Supreme Court. Holding out an official paper, the President said: “Hugo, I’d like to write your name here.” The Senator, forewarned, had talked it over with his wife, who urged him to accept. Receiving the answer he expected, Roosevelt crisply inscribed the words “Hugo L. Black, of Alabama” and sealed the nomination in an envelope.

Secretly, without consulting his usual advisers, Franklin Roosevelt had chosen his first nominee to the Supreme Court. The President evidently felt no need to inquire into the political past of a senator who had so staunchly supported most of his programs. Later, a chagrined Roosevelt would tell his friends that one normally did not ask a man “questions of that sort.”

If Roosevelt had sought the advice of that astute Democratic politician, Postmaster General James A. Parley, he might have been reminded that Hugo Black had entered the Senate with the backing of the Alabama Ku Klux Klan. If the President had talked it over with Charles Michelson, the Democratic ghost writer and former newspaperman, he might have learned of rumors that Black had actually been a member of the Klan.

But neither these men nor any of the Senate leaders knew of Roosevelt’s intention. Attorney General Homer S. Cummings was the President’s only confidant, and he had made no inquiry into Senator Black’s background either. To investigate a man twice elected to the United States Senate, Cummings insisted afterward, would have been an “impertinence.”

The President came to his decision in the closing days of a summer session of a Congress whose political debates had been as torrid as the temperature along the banks of the Potomac. The battle over Roosevelt’s plan for enlarging (his enemies said “packing”) the Supreme Court had ended in defeat for the President on July 22, after one hundred and sixty-eight days of bitter controversy. (See “F. D. R. vs. the Supreme Court” in the April, 1958, AMERICAN HERITAGE .)

For Roosevelt the loss had been costly—in prestige, in his working relationship with the Senate, and in the death of his loyal majority leader, Senator Joseph T. Robinson of Arkansas. Worn out by the strain of trying to hold fractious Democratic ranks together, Robinson, the peacemaker, died at the height of the epic struggle.

Although the game was lost, the President still had one card to play, and he wanted to make it a trump. Justice Willis Van Devanter’s decision in May to step down from active service on the court gave Roosevelt an opportunity to name a justice. This first vacancy had long been promised to the conservative Robinson; but with Robinson gone, all options were open to the President.

In choosing Hugo Black, Roosevelt was not thinking of his nominee’s political origins or looking for the country’s most brilliant legal mind. He wanted to put an ardent New Dealer on the bench of a Supreme Court that had stubbornly bucked the legislative program of his first administration. But would the recalcitrant Senate confirm such a choice? The surest way to guarantee confirmation would be to name one of its own members, since the Senate traditionally confirmed its own.

A list of sixty potential nominees, compiled by the Department of Justice, was gradually whittled down. It would be politically tactful to select a man from an area not represented on the court. The Deep South, a Democratic fief astir with political revolt, was such a region.

Furthermore, southern senators had been leaders in fighting not only the court plan but also the administration’s wages-and-hours bill, sponsored in the Senate by Hugo Black. They feared that a national scale of minimum wages and maximum hours would stunt the industrial growth of the South by putting an end to the old southern lures of low wages and a tractable labor force. Voicing this philosophy, Ellison D. “Cotton Ed” Smith of South Carolina told the Senate that conditions in the South were so kindly that one could live “comfortably and reasonably” for fifty cents a day.