Hugo Black and the K.K.K.

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Anticipating a floor fight, spectators packed the Senate galleries the next day. It was Senator Royal S. Copeland, a New Deal opponent and a candidate for mayor of New York City, who brought the rumors into the open. He read a 1926 report from the New York Times to the effect that Black, to win Alabama votes in the closing days of his first Senate race, had attacked the presidential aspirations of Governor Alfred E. Smith, a Catholic. Black’s supporters were quick to reply that Democrat Copeland was now attacking Black to gain the votes of New York’s Negroes and Catholics for his own mayoral candidacy. Senator Edward R. Burke, Democrat of Nebraska, volunteered to produce in Washington two witnesses who, he said, had been present when Black was initiated into the Klan, but no one moved to take up his offer. Burke and Copeland urged the Senate to ask Black himself for a statement, but without success. In Atlanta, reporters sought out the Imperial Wizard of the Klan, Hiram W. Evans, who said that so far as he knew Black was neither a Klansman nor a sympathizer. “I’m hoeing my own row,” he said.

 
 

While Black awaited the outcome in an office near the Senate chamber, a group of his colleagues reportedly called upon him and actually put the question. Black, by one account, replied that he was not presently a Klansman but added that if anyone was concerned lest he might have been a Klansman in the past, that man should vote against confirmation.

After this conversation, William E. Borah, Republican of Idaho, the old “irreconcilable,” made the only statement in Black’s behalf on the Klan question. “There has never been at any time one iota of evidence that Senator Black was a member of the Klan,” Borah told his colleagues. He said that Black, in private discussion before the nomination, had stated that he was not a member of the Klan. No one, Borah said, had suggested any source from which evidence might be obtained. For himself, the Idaho senator said he would vote against any man whom he knew to be a member of a secret organization of the nature of the Klan. These remarks would come back to plague Borah.

After six hours of debate, administration lines held firm, and Senate traditions carried the day. A motion to send the nomination back to committee was defeated, and the Senate voted 63 to 16 to confirm it. Recording the outcome in his diary, Secretary of the Interior Harold Ickes summed it all up: “So Hugo Black becomes a member of the Supreme Court of the United States, while the economic royalists fume and squirm, and the President rolls his tongue around in his cheek.” Pleased with his ploy, Roosevelt invited his nominee to lunch two days after the Senate vote and presented him with the commission of an associate justice. Leaving the White House with the cardboard cylinder under his arm, Black told reporters: “I suppose I said ‘thank you.’” Asked when he would take the Supreme Court oath, he replied that he had no idea.

By custom the Chief Justice administered the general oath, the one taken by all public servants, to a new justice in the robing room on the day he appeared to assume his duties. A second “judicial oath,” applying particularly to the court, was usually administered by the court clerk in the courtroom before a new justice ascended the bench.

Precedent (and his own statement) to the contrary, the new associate justice took both oaths late that same afternoon. The simple ceremony took place in the office of the secretary of the Senate, Edwin A. Halsey. The only person present besides Halsey and Black was Charles F. Pace, financial clerk of the Senate, who notarized a printed form from the Department of Justice containing both oaths. In the closing hours of a hectic session of Congress, the oath-taking ceremony was only briefly reported. Those who noted it at all probably assumed that Black had taken only the general oath.

Thus on August 19, seven days after his nomination was sent to the Senate, Hugo Black became a fullfledged member of the United States Supreme Court, entitled by the Constitution to hold office “during good behavior” for his lifetime. He ordered his judicial robes, received the initial installment of his $20,000 annual salary, and left for his first trip to Europe. The court was in recess until October.

Early opinions of the new justice varied with the political leanings of those who expressed them. Herbert Hoover said the court was “one-ninth packed.” Raymond Moley, the onetime “brain truster” who had broken with Roosevelt, said he couldn’t remember a worse appointment. But labor leaders were enthusiastic, and a liberal magazine called it the most courageous nomination since Woodrow Wilson named Justice Louis Brandeis, the court’s first Jew.