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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.