Robes of white and black

hugoblackThis summer has witnessed the historic elevation of Sonia Sotomayor, by presidential nomination coupled with senatorial confirmation, from judge to associate justice. A lifetime appointment to the Supreme Court of the United States imparts enormous prestige in American society and conveys immense power and influence in our government.

The Sotomayor nomination was not particularly controversial, as such things go. There were some rough spots, to be sure, but in the main the lengthy confirmation process reflected the political reality that Judge Sonia is the very sort of jurist Barack Obama was expected to name to the Supreme Court, and had she not been confirmed, someone very much like her in due course would have been.

Three Alabamians have served on the U.S. Supreme Court. The last to do so, Hugo Lafayette Black of Ashland, exerted more influence over the development of American constitutional law than all but a relative handful of the judges in the Court’s entire history.

Black was nominated by President Franklin Roosevelt on August 12, 1937, and the Senate confirmed him to the high Court within a mere week. Although this seems an inconceivable rush to judgment by today’s standards, in 1937 it was considered somewhat a delay. As a sitting U.S. Senator, Black’s confirmation by Senate colleagues normally would have been automatic, and virtually immediate. But, for the first time since 1888, the Black nomination was referred to the Senate Judiciary Committee, which approved him on a 13-4 vote. The full Senate debated for most of a day before confirming Black 63-13.

There is zero chance that Hugo Black’s nomination could have survived the scrutiny facing any nominee today. In the modern political climate the president, without question, summarily would withdraw the nomination from a disgraced nominee. Black, you see, had joined the Ku Klux Klan in the early 1920s, presumably to further his political career, though he had quit the Klan shortly before entering the Senate in 1926. Indeed, Black had addressed a statewide Klan gathering in the very year of his first Senate election.

Black’s “hooded” history was a matter of unproved speculation at the time of the abbreviated confirmation debate. Rumors were rife, however, and the NAACP and other African-American groups formally opposed him to no avail.

Enterprising investigative journalists broke the truth about Black’s embarrassing past late in the summer, but only after he had already taken the judicial oath of office. Time magazine scathingly observed that “Hugo won’t have to buy a robe, he can dye his white one black.” A national scandal erupted, and even FDR demanded an explanation.

Justice Black rose to the occasion, and gave a radio address forthrightly admitting his former Klan membership, though denying that he either participated in Klan activities or really considered himself a Klansman at all. The public remained skeptical, and the media didn’t buy his story either. American Mercury even called Black “a vulgar dog.”

Black did not easily live down the stigma of his “Kluxer” past. When the Supreme Court began its fall term in October 1937, the new justice had to sneak in through the basement, because angry protesters had converged upon the building. Over the course of the next three-and-a-half decades, however, Black forged a distinguished judicial career generally characterized by a high regard for the constitutional liberties afforded all individuals.

Hugo Black died in 1971, only eight days after resigning from the Supreme Court for reasons of ill health. His was a remarkable career, incredibly important to the history of American jurisprudence. In one of those ironies, which make the study of history so interesting, the ex-Klansman from Alabama became a stalwart of the liberal Warren Court that so transformed American law and society in the 1950s and 60s.

Carl Sagan once made this rather idealistic appraisal of the late Justice Black:

When permitted to listen to alternative opinions and engage in substantive debate, people have been known to change their minds. It can happen. For example, Hugo Black, in his youth, was a member of the Ku Klux Klan; he later became a Supreme Court justice and was one of the leaders in the historic Supreme Court decisions, partly based on the 14th Amendment to the Constitution, that affirmed the civil rights of all Americans. It was said that when he was a young man he dressed up in white robes and scared black folks; when he got older, he dressed up in black robes and scared white folks.”

Yet in a candid 1967 New York Times interview, which Black gave only with the understanding that it would not be published until after his death, the by-then esteemed elder justice revealed that his youthful flirtation with the Ku Klux Klan had nothing to do with philosophy or politics, but rather everything to do with winning cases as a trial attorney:

You want to know the main reason I joined the Klan? I was trying a lot of cases against corporations, jury cases, and I found out that all the corporation lawyers were in the Klan. A lot of the jurors were too, so I figured I’d better be even-up. I haven’t told that before, but that’s how it was. People think it was politics, but it wasn’t politics. I wanted that even chance with the juries.”

All irony aside, that is an explanation which this lawyer can understand, and believe.

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Written by: Greg S.