Should his former membership in the Ku Klux Klan disqualify this Supreme Court nominee?
I was on the revenue cutter off Norfolk, along with about seventy-five reporters and photographers who had converged on the pleasant Virginia seaport to surround a man finally trapped. I marveled at how little rancor the quarry showed when he met the newspapermen. In the cabin, before he went on deck to confront the cameras and notebooks, he told me with amusement how he had been hounded in London by American reporters. That very morning I watched his unperturbed cheerfulness survive even the efforts of a photographer outside his cabin to poke his camera between the slats at the bottom of the door; he wished, I suppose, to preserve for posterity a pictorial record of the legs of those inside. Although in his statement Justice Black hit at the distortions of the press, he somehow made the reporters understand that his quarrel was not with them but with their bosses. And two days later he made his radio audience of some thirty million understand why he was talking directly to them. The idea of using the radio was one which had come to him on his way across the Atlantic. It was a sound democratic instinct. And because he followed this instinct, he turned what might have been, in a sense, a lynching bee into something like a triumphal homecoming.
I shall not easily forget an extended conversation with justice Black on the evening following his arrival. Journalists learn to be skeptical of the drama of events, and yet there are moments when man and occasion combine to leave an ineradicable mark. This was one. Justice Black’s biography, as I have pieced it together from this and other sources, is one of the most moving and contradictory records in our history. Since the sources were sympathetic, the record I am setting down may contain a degree of bias or rationalization. I offer it not as a final critical account but as a personal history, in which I have sought to view the action as the actor might have viewed it.
Hugo Black was born in 1886 on a farm in Clay County, Alabama, the youngest of a large family of a desolately poor farmer. He was of Scotch-Irish and English descent, and his Irish ancestors had been driven out of their country for their religious beliefs. When Hugo was five, his father moved to the county seat at Ashland, bought a small store, and became a tolerably successful merchant. The county was poor; it had neither bank nor hospital, but it did boast a primitive sort of academy called Ashland College, which provided the boy’s schooling from six to sixteen. He studied medicine for a year, but he had always had a hankering for law, and so he left medicine to complete a two-year law course at the University of Alabama. In 1907, at the age of twenty-one, he settled down to a career as a Birmingham lawyer.
There followed intense work at law, reading crowded into the night hours, rapid political success. Birmingham was the school that taught him. He made close connections with the trade unions; in 1909 he represented the miners’ union in its first Alabama strike; later he was attorney for the carpenters’ union in another important suit. He loved the techniques of the law, mastered its procedure, began to build a state-wide fame. This led naturally to politics, and Black was elected police judge in 1910, at twenty-four, and prosecuting attorney in 1914. He had been absorbed with politics ever since he could remember: he recalls staying up all night as a boy of ten to listen to the election returns for probate judge. He was a hard and tireless campaigner: for the 1926 election he campaigned for thirteen months, dropping all his work, covering every county in the state, some of them twenty times. His opponents learned to fear him, because his appeal was that of one who knew his audiences and loved to match wits with them. In fact, as I talked with him I had a notion that when he came to make his radio statement he would feel isolated before the microphones. He would, I think, have preferred to carry his answer to actual audiences all over the country, face to face with the people to whom he responded and who responded to him.
That a man like Black should have come to join the Klan is one of those facts monstrously hard to grasp until you approach it not as a moral problem but simply as a piece of political behavior. Black’s career was that of a progressive in politics, and in the South in the decade after the World War such a career inevitably crossed that of the Klan. For the Klan had not inconsiderable roots, although twisted ones, in the mass-mind. Its superpatriotism fitted the anti-radical mood after the war; its law-enforcement plank went strong in the period of Prohibition racketeering; in regions of economic distress its nativism seemed an insurance against the competition of immigrant labor; amid the decay of religious faith its mystical religionism had an appeal; its attitude toward the Negroes was integral to the Southern psychosis of “white supremacy.” In such a soil the Klan grew with an intoxicating speed that seemed its own sanction. Many of the younger Southern leaders felt helpless before it. They must either ride the whirlwind of the Klan or surrender, and they had no thought of surrendering.
It is easy to call their point of view contemptible. It was a tragic mistake, and it is clear that justice Black thinks so now. But it is easy to be wise after the fact. In Alabama at that time not only the farmer and merchant were Klansmen; 90 per cent of organized labor in Birmingham was enrolled. The common people had been captured by the Klan, for it buttressed them against problems they could not understand with principles that seemed eternal. The Klan assumed, moreover, a radical attitude on many specific issues which appealed to the progressives. Like the fascist movement in Germany, it combined a spurious radicalism with terrorism. Those who leaned toward the first were often able to shut their eyes to the second. But as the Klan madness took its swift and terrible course, and as it became the prey of racketeers and hoodlums, its fascist character grew ever clearer. Before that process had gone far, Hugo Black had left the Klan, but he could not escape the shadow of it.
He was from the very beginning a “joiner.” Even before he was of age, he had put in his application for the Knights of Pythias and the Masons. He had a youthful fervor for these secret societies. Somewhere around 1920 he was approached to join the Klan. He pleaded lack of time; he was then Grand Chancellor of the Knights of Pythias and an officer of his Masonic lodge. He was skeptical of the Klan’s exclusion of Jews (the Masons admitted them), anxious to know the character of its members, suspicious that they might take the law into their own hands. The matter was dropped, but soon a close friend approached Black again, and this time overcame his objections. But it was not until two years later that Black actually attended a meeting and paid dues. He went to very few meetings, and when he spoke it was to warn against lawlessness and religious intolerance. Finally, on the eve of the Senate race, he resigned altogether.
He resigned, but he did not openly repudiate the Klan. To have done so would have taken greater political hardiness than Black possessed. And he accepted in his election the support of the Klan people, because he needed the votes of the workers and farmers who made up its members. In 1926, after the election, he was invited by Esdale, the head of the state lodge, to address a meeting at Birmingham at which Governor-elect Bibb Graves was also to speak. He went to it, as he went to similar meetings of other societies. He was in a jubilant mood after his victory, and he thanked the audience for its support as he had thanked many other audiences. His speech, if the Sprigle version of it is correct, pulsed with a vague religionism and an overaccented brotherly love, but little more. After that, he never attended another Klan meeting, and his relations with the Klan grew steadily worse. In 1928 his support of Al Smith went directly counter to the Klan’s policy. In 1930, when Heflin (who had been read out of the party for bolting Smith) ran for the Senate, Black stumped the state against him, further embittering the Klan, which was openly backing Heflin. And it was Black’s opposition that defeated Heflin and elected Bankhead, as Heflin himself admitted.
Black’s Senate record needs no adornment in these pages. It was such as to wipe out, in his own mind as in the minds of those who valued his liberalism and humanity, all concern with, if not all memory of, the brief Klan years. When the nomination to the Supreme Court came to him, he accepted it as a recognition of his work as Senator. If he did not mention to the President his former Klan membership, it was because by the side of his Senate career it seemed irrelevant. We may regard such a judgment as an error, but it was understandable.
There are some who feel more strongly about his failure to tell the Senate about the Klan connection when the issue was raised. But the same sense of relative unimportance would have operated in Black’s mind with respect to the Senate. There would be, in addition, his unwillingness to involve the Administration in a row over an episode which seemed to have lost all meaning, the fact that no Senator questioned him on the subject, and finally a feeling of pride that the least his own colleagues in the Senate could do would be to judge him on the basis of their association with him.
When the Sprigle series broke, Black was in London. He knew that groups similar to those behind these articles had, in both his senatorial campaigns, sent agents and investigators to Alabama who had scoured the state to find something they could use against him. In fact, the Sprigle material itself was not new, except for the stenographic records: the letter of resignation and the “grand passport” had both been made public in Alabama during the last Senate fight. Knowing this, Justice Black was inclined to give the American people more credit for keeping their heads than we turned out to deserve. When he found that the articles were raising a storm, he had to face a bitter choice between making a statement and remaining quiet. We all wondered why he did not answer the charges immediately. But now, after his radio speech, it is clear that to put the charges in their true perspective would have been impossible from across the ocean; the only item to survive transatlantic passage and the mercies of the newspaper moguls would have been the admission that he was once a member of the Klan. And Hugo Black has had as good a training in political tactics as the next man. He knows that when you are unscrupulously attacked, instead of answering at a disadvantage, it is better to wait until it is your show, and then strike dramatically and hard.
That he spoke at all was more out of a concern for the political fortunes of the New Deal and the President than for his own interest. So far as the Klan issue is involved, his place on the court is unassailable; he can neither be impeached nor compelled legally to resign, and it would not take long for his court decisions to quiet the storm the “exposures” have raised.
There are several ironies about the whole episode. The obvious one is that so militant a New Dealer should be accused of being a reactionary. Another is that this man, charged with hostility to Negroes, would have faced defeat in another senatorial contest because he had fought too strenuously for raising the wages of Negro mill hands and lumber workers. But the greatest irony is that the most fervent Senate admirer of John Stuart Mill and the liberal tradition should be charged with being a bigot and an enemy of civil liberties. Mill’s “Autobiography” and his essay “On Liberty,” Plato’s “Dialogues” and Grote’s “Plato”-these are the books on which his mind dwells. But there are two authors whom he has read even more assiduously: Jefferson, whose set of writings in his library is completely marked up; and John W. Draper, whose highly libertarian “Intellectual Development of Europe” he has read four or five times. The curious may even now turn to the Congressional Recordfor 1929 and read Black’s fervid speech against the Treasury bill for censoring books from abroad, in which he quoted Draper’s account of the burning of the Alexandria library; and then compare it with Heflin’s speech on the subject.
I do not mean to say that Justice Black is all of one texture. In fact, the remarkable thing about him is that he is so full of contradictions. He is not a simple man to understand. His critics have called him slippery, but that was not the best word I found to fit him. I found a man who was confident of his strength. I found a quick and elusive intelligence that defied whatever rules I had built up for putting people in their proper niche in my own mind. Here was a man who had toiled day and night over his law books and had still kept an open mind for ideas; a man of limited education and sectional outlook who had managed to become a statesman as well as a tactician; a progressive who was also a Southerner, and who believed that the problems of progressive democracy in the South had to be approached differently from the same problem in the North; a lawyer and politician who knew more about economics than almost anyone in the Senate, and who had dug beneath the political forms of today to their economic realities.
Such a man could do much to vitalize the court and to broaden himself further in the process. He is on the court now and he means to stay. He knows that he belongs there, and he feels that the majority of the people want him there. The impression has been built up that he is not of good legal caliber, and that his talents are only those of the police judge and the prosecutor. That is not true. It is true that he never had a Harvard Law School training and never was an operative in a New -York law factory. But he has come up against the smart lawyers and the corporation lawyers, both in his practice and in the Senate; and the encounters have not left him with a feeling of inferiority. He probably does not know much about admiralty or patent law, but neither, I should venture, does anyone else on the present court; both those subjects should long ago have been segregated in a special court of experts. Justice Black is no backwoods lawyer. For years before he came to the Senate he had the largest and most brilliant law practice in Alabama, which had begun to net him an income of some $40,000 a year. And as for the “certioraris”–those voluminous writs over which the justices exhaust themselves during the summer–time and a quick eye and a nimble intelligence have proved sufficient equipment for other justices.
Technical questions aside, we must recognize that the Supreme Court justice of today must have more than law courses and fat corporation fees to his credit. He is right in the center of the formation of economic and social policy. He must combine technical ability with economic realism and philosophic grasp. Justice Black does not have either the philosophy or the style of Justice Cardozo. But more than anyone else on the court he resembles his close friend, Justice Brandeis, if not in moral fervor, at least in the combination of legal acumen and economic knowledge. He may yet write court history, as he has already written Senate history.