William H. Rehnquist (to be Associate Justice) and Lewis F. Powell Jr.

Speaker, Title, Party Statements
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let us have order. This hearing is on the nomination of William H. Rehnquist of Arizona to be associate Justice of the Supreme Court of the United States, vice Justice Harlan retired. Notice of the hearing appeared in the Congressional Record of October 27, 1971. I am going to place in the record at this time the report of the American Bar Association on Mr. Rehnquist, and also the report of the American Bar Association on Lewis F. Powell. Copies will be made available to the members of the committee and to the press. (The reports referred to follow.)
Senator Paul Fannin (AZ)
Senator
(R)
Senator FANNIN. Thank you. Mr. Chairman and members of the committee, I am delighted to join with my colleagues, Senator Goldwater and Congressman Rhodes, in presenting to you Mr. William H. Rehnquist who has been nominated to be an Associate Justice of the Supreme Court. 69-267—71 2 12 13 of Delegates, characterized the nominee as "a wonderful man, a great lawyer, and a scholar with a fine mind." Another former law partner, James Powers, described Mr. Rehnquist as "a first rate legal scholar," adding: "He is the ultimate reasonable man. * * * I'm sure he'll make an excellent Justice." John P. Frank, a Phoenix attorney considered to be an expert on the subject of judicial nominations, noted: "He's splendid. He's going to make a good Supreme Court Justice." The tributes to Mr. Rehnquist from his fellow Arizonans go on and on, and I am certain that you will hear many more testimonials during the course of this hearing. Mr. Chairman, it is with great pleasure that I join in commending Mr. Rehnquist to you and recommending the approval of his nomination to be an Associate Justice of the Supreme Court. Thank you.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Any questions?
Senator Barry Goldwater (AZ)
Senator
(R)
Senator Goldwater.
Senator Barry Goldwater (AZ)
Senator
(R)
Senator GOLDWATER. Thank you. Mr. Chairman, it is an unqualified privilege for me to join with my colleagues from Arizona today in introducing William Rehnquist as a nominee for the position of Supreme Court Justice. Let me state at the outset, Mr. Chairman, that I have personally known Mr. Rehnquist during the past 18 years, since he first arrived in Phoenix, and out of this long and close association I can tell you in complete honesty that he is fit in every sense of the word to become a great and respected member of the High Court. Mr. Chairman, I personally know of the nominee's exceptional service to his citizen clients as a practicing attorney in Arizona and, in recent years, to the general public in his capacity as a Government official. In addition to the attitudes of diligence and dedication which Mr. Rehnquist brings to every legal task before him, he is unquestionably one of the most brilliant legal craftsmen in America. In fact, Mr. Chairman, President Nixon has credited Bill Rehnquist "as having ono of the finest legal minds in this whole Nation." Mr. Rehnquist has earned these plaudits every step of the way throughout his distinguished career in the law. In 1948, he graduated from Stanford University "with great distinction" and as a member of Phi Beta Kappa. In 1952, also at Stanford, he graduated first in his law school class, having acquired an MA from Harvard in. between his Stanford courses. Then he began his actual career first as a public servant in the spot of clerk to former Supreme Court Justice Robert Jackson. From this select position, he came to Phoenix where he embarked upon a 16- year period of private practice, thereby acquainting himself with a wide variety of legal issues. Most recently, in 1969, the nominee became the Assistant Attonery General for the Office of Legal Counsel. This position, Mr. Chairman, is a highly important post. A 1970 report of the Attorney General describes the functions of this office as including the drafting of 14 formal opinions of the Attorney General himself, rendering opinions on a variety of "significant and complex constitutions, statutory, and other legal questions involving the executive branch," and considering conflicts of interest questions. Also this officer must pass on matters relating to the Freedom of Information Act and is often called upon to testhy before congressional committees as a spokesman for the position taken by the Department of Justice on legislative proposals. Thus, Mr. Chairman, Bill Rehnquist has become acquainted with the practical role and interests of the legislative branch of our Government, as well as with the executive and judicial branches. In short, Mr. Chairman and members of the committee, the nominee is a man of varied and balanced experience. He is well versed in every aspect of the Government and he has dealt with the day-by-day concerns of average citizen? as a private practitioner. He truly is a man attuned to the law, exceptionally diligent, honest to where the truth leads him, and first and foremost a scholarly interpreter of the Constitution. He is calm, competent, and has a healthy compassion for human needs. He will serve his country and its people well, and, Mr. Chairman and members of the committe, I urge his confirmation.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Any questions? Congressman Rhodes.
Rep. John Rhodes (AZ)
Mr. Rhodes.
(R)
Mr. RHODES. Mr. Chairman, I deem it to be a high honor and a personal privilege to appear before you and the distinguished members of 3r our committee for the purpose of recommending to you the confirmation of William H. Rehniquist as an Associate Justice of the Supreme Court. I make this recommendation without reservation, either as to the professional ability of Mr. Rehnquist or as to his moral, ethical, or intellectual qualifications. Bill Rhenquibt is a fine man in every tense of the word. He is a good citizen, a good man, and one of the most able lawyers I have ever known. He was graduated first in his law school class at Stanfoid University and served as law clerk to the late Associate Justice Robert Jackson. His career as a practicing lawyer in Phoenix, Ariz., is replete with accomplishment, and his reputation in the Arizona Bar is unsurpassed for integrity and legal skill. Mr. Rehnquist has served as president of the Maricopa County Bar Association and has been active in the work of the State Bar Association of Arizona. He has served with great distinction as Assistant U.S. Attorney General, the position he now holds. I know that Mr. Rehnquist is a man of deep convictions. However, the points of view he expresses have been obtained by the process of reasoning, and not by way of passion or emotion. My knowledge of Mr. Rehnquist's ability to reason causes me to have every confidence that as an Associate Justice of the Supreme Court, his decisions and his opinions will be derived through the process of reasoning of a true scholar, applying legal precedents to the particular case at bar with the deft, sure strokes of a legal craftsman. He is thoroughly dedicated to the principles of the English common law. However, we can also be 15 sure of his great regard and reverence for the intent legislative bodies have expressed when enacting statutes, and we can expect his statutory- interpretation to reflect this viewpoint. I would predict that Mr. Rehnquist will become one of the great Justices of the Supreme Court. He is not only accomplished in the practice of the legal profession, but he is also a great human being with a fine sense of humor. He has a great feeling of respect and compassion for his fellow man and of reverence for our American institutions. It is my pleasure and honor to join my colleagues in the Arizona delegation to the Congress of the United States in recommending that this committee consider favorably the confirmation of William Rehnquist. Mr. Chairman, I am authorized by Congressman Udall and Congressman Steiger to convey to the committee that they also recommend the confirmation.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Well, you are speaking for the Congressional delegation from Arizona; is that correct?
Rep. John Rhodes (AZ)
Mr. Rhodes.
(R)
Mr. RHODES. I am about to ask the chairman for the privilege for my colleagues to file their statements for the record.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Yes.
Rep. John Rhodes (AZ)
Mr. Rhodes.
(R)
Mr. RHODES. The statement you have made as to the recommendation of confirmation is correct, but I would prefer that the individuals have the privilege of filing their own statements so that they can express their ideas in their own words.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. That will be granted. (The statements referred to follow:) TESTIMONY OF WILLIAM H. REHNQUIST, NOMINEE TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES The CHAIRMAN. Mr. Rehnquist, you have an A.V. rating in Martindale's, do you not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, I did have at the time while I was practicing.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. When did you get it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS I recall, the minimum period in which you could get an A.V. rating at the time was a period of practice of 10 years. And it seems to me I got it in 1966, though I cannot be absolutely positive as to the date. It was very shortly after the expiration of the minimum period.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Of course, that is the highest rating Martindale's Legal Directory can give a person?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, I believe it is.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. And you got it in 12 years.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That certainly—it was either 11 or 12 years, Mr. Chairman. I am not positive as to the exact date.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. NO one can get it under 10 years?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is my understanding.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator McClellan.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Mr. Chairman, I have a few questions, but I should like to ask the indulgence of the Chair and my colleagues with me while I make a brief statement regarding these nominations, a statement that I want to go into the record in full. Following this statement, I will have some questions premised upon the views that I express here. A special genius of the American people has been a commitment to the rule of law, not of men, and a special focus of that commitment has always been on the Supreme Court of the United States. This committee, and ultimately the Senate, fulfills, therefore, a sacred duty in advising and consenting to the nominations submitted by the President for the Nation's highest court. In considering these pending nominations, three issues face this committee, and will later face the Senate: 17 Do these nominees have personal integrity? Do they possess professional competency? Do they have an abiding fidelity to the Constitution? No Senator has a duty to vote to confirm an}^ nomination forwarded by the President that cannot pass muster under this threefold test. In my judgment, this is what this hearing is all about—not about the so-called "Warren court," or the "Burger court" or even the "Nixon court." Those labels are the stuff of journalism, not constitutional law. Since these nominations were announced, I have examined the public record of each of these men, and I shall undertake to listen through these hearings, without prejudgment. However, I would observe that I have found nothing in the public record of either man that raises any question whatsoever of lack of integrity or competency. I am convinced that any challenge on either of those grounds will utterly fail. Therefore, 1 shall be concerned about and shall direct my attention and inquiry principally to the question of their fidelity to the Constitution. I think it can be said that there is room on the U.S. Supreme Court for liberals and conservatives, for Democrats and Republicans, for northerners and southerners, for westerners and easterners, for blacks and whites, and men and women—these and other similar factors neither qualify nor disqualify a nominee. After personal integrity and professional competency, what is most crucial, in my judgment, is the nominee's fidelity to the Constitution—its text, its intention and understanding by its framers, and its development through precedent over the history of our Nation. There have been a few unfortunate periods in our history when Justices on the Supreme Court have taken too literally Chief Justice Hughes aphorism that the Constitution is what the judges say it is and have attempted to rewrite our Nation's basic charter according to their own personal philosophies, either conservative or liberal. In my opinion, our Nation has just passed and is still passing through such a period. In recent years a majority of the Supreme Court—no doubt in good faith, but nonetheless in my opinion with mistaken judgment—began to impose new standards on the administration of criminal justice in the United States, on both the Federal and State levels. These decisions have not enforced, as some have suggested, the simple rule that law enforcement agents must "live up to the Constitution" in the administration of justice, a Constitution that establishes known and fundamental standards. If this was all that was involved, no one could legitimately complain. My voice, for one, would not have been raised. Instead, these cases have, to a significant degree, created and imposed on a helpless society new rights for the criminal defendant, and some of these new rights have been carved out of society's due measure of personal safety and protection from crime. Indeed, since 1960, in the criminal justice area alone, the Supreme Court has specifically overruled or explicitly rejected the reasoning of no less than 29 of its own precedents, often by the narrowest of 5-4 margins. The high water mark of this tendency to set aside precedent was in 1967, when the Court overturned no less than 11 prior decisions. Twenty-one of the 29 decisions the Court overruled involved a change in constitutional doctrine—-accomplished without invoking the prescribed processes for the adoption of a constitutional amendment. 18 It is significant that 26 of these 29 decisions were handed down in favor of a criminal defendant, usually one conceded to be guilty on the facts. The pursuit by some jurists of abstract individual rights denned by ideology, not law, has thus threatened to alter the nature of the criminal trial from a test of the defendant's guilt or innocence into an inquiry into the propriety of the policeman's conduct. In my judgment, these decisions, however well intentioned, have come at a most critical juncture of our Nation's history and have had an adverse impact on the administration of justice. Our S3~stem of criminal justice, State and Federal, is increasingly being rendered more impotent by such decisions in the face of an ever-rising tide of crime and disorder. President Johnson's prestigious Crime Commission in 1967 began its monumental study of crime in the United States with these tragic words: There is much crime in America, more than ever is reported, far more than ever is solved, far too much for the health of the Nation. Every American knows that. Every American is, in. a sense, a victim of crime. Violence and theft have not only injured, often irreparably, hundreds of thousands of citizens, but have directly affected everyone. Some people have been impelled to uproot themselves and find new homes. Some have been made afraid to use public streets and parks. Some have come to doubt the worth of a society in which so many people behave so badly. Some have become distrustful of the Government's ability, or even desire, to protect them. Some have lapsed into the attitude that criminal behavior is normal human behavior and consequently have become indifferent to it, or have adopted it as a good way to get ahead in life. Some have become suspicious of those they conceive to be responsible for crime: adolescents or Negroes or drug addicts or college students or demonstrators; policemen who fail to solve crimes; judges who pass lenient sentences or write decisions restricting the activities of the police; parole boards that release prisoners who resume their criminal activities. Mr. Chairman, I am glad to know that one of the nominees, Mr. Powell, was a member of the President's Commission that voiced these sentiments. It is for these reasons that I, for one, welcome these two distinguished nominations. Until it has been demonstrated otherwise, I shall assume that their appointment is not an attempt to put a liberal or a "conservative" on the Court, but to appoint men of the highest integrity and outstanding competency—men characterized by a deeply held fidelity, not to an abstract ideology of the left or the right, but to the Constitution itself. If we can return fidelity to the Constitution, I believe our society will be both free and safe. Mr. Chairman, with that preface, I would like to ask the nominee before us this morning some questions.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Proceed.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Mr. Rehnquist, it is not my intention here to ask you to comment on specific litigation that might be before or might come before the Court. But, I do wish to explore for the record, your understanding, in a gen 19 the Constitution was no longer being achieved through the specific legal devices they deliberately chose in drafting specific clauses, would you feel free, as a justice, to ignore these specific legal devises and give old clauses new readings, to achieve a new, and in your judgment beneficial, result?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not believe I would, Senator. I think that
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Well, this goes to the heart of the matter. Would you be willing, as a judge, with the power you would have on the Court, to disregard the intent of the framers of the Constitution and change it to achieve a result that you thought might be desirable for society?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I would not.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. If you felt honestly and deeply that a settled course of constitutional doctrine developed by precedent over the years was wrongly decided in terms of your own philosophy of what is good or bad for our society, would you feel free to overrule that precedent and chart a new course of constitutional doctrine? In other words, assume that for years and years the words of the Constitution in a given clause or section had been given a certain interpretation or construction. Now, if you felt that that interpretation or construction, though in keeping with the plain intent of the framers of the Constitution, was not getting the results that j^ou felt were necessary for a modern-day society, would you overrule that decision to bring about a change? Or instead would you feel that the Constitution should be amended by the processes prescribed by it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would not overrule a prior decision on the grounds that you suggest.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. In your judgment, what sort of respect is due precedent on constitutional questions by the Court? How much should you feel bound by the precedents the Court has established?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I feel that great weight should be given to precedent. I think the Supreme Court has said many times that it is perhaps entitled to perhaps somewhat less weight in the field of constitutional law than it is in other areas of the law. But, nonetheless, I believe great weight should be given to it. I think that the fact that the Court was unanimous in handing down a precedent makes a precedent stronger than if a court was 5 to 4 in handing down the precedent. And I think the fact that a precedent has stood for a very long time, or has been reexamined by a succeeding number of judges, gives it added weight.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Should you be confirmed, to what degree would you feel free to implement on the Court your personal view of the role that the Court should play in adjusting the rights of society and the individual in the administration of justice?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. None.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Would you feel bound by the restraints of personal or logical consistency to follow the same legal or constitutional judgments on issues you considered either as a student, private practitioner, or in the Office of Legal Counsel?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I do not believe I would.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Well, it occurs to me—and I have practiced a little law and observed a good many lawyers—that as a practitioner, you are an advocate for a client as well as an officer of the Court. And I can well see that the views that one might express in a given 20 case or on a given issue, when one becomes a judge with the power to make the determination instead of arguing the case, after weighing the other side of the argument, might not conform to one's judgment as a jurist. Could you conceive that to be true?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I not only can conceive it to be true, Senator McClellan, but I can recall at least one instance in which Justice Jackson, to whom I clerked, found as a Supreme Court Justice that he was obliged to disagree with something he had done as Attorney General. And I believe the same thing happened to Justice Clark.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. YOU mean, after they became Justices of the Court, they changed their views and decided differently on questions they had previously considered or argued as advocates of a cause?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Would you hestitate to do that if you had been wrong?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I certainly would not.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. YOU would not let your prior position become the overriding influence in your decisionmaking, would you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I would not.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. It has been remarked, "At the present time in this country there is more danger that criminals will escape justice than that they will be subjected to tyranny." Do you share this judgment that was expressed by Mr. Justice Holmes? (Kepner v. United States, 195 U.S. 100, 134 (1904)).
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think I would want to know more of the factual situation, Senator, and an examination of the data that I simply have not been exposed to before. I could not categorically agree that there is more danger that criminals would be allowed to escape than that they would be subject to tyranny.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Very well. Let me read another quotation: In interpreting the Bill of Rights, I willingly go as far as a liberal construction of the language takes me, but I simply cannot in good conscience give a meaning to words which they have never before been thought to have, and which they certainty do not have in common with ordinary usage. I will not distort the words of the [Fourth] amendment in order to "keep the Constitution up to date" or to bring it into harmony with the times: it was never meant that this Court have such power, which in effect would make us a continuously functioning constitutional convention. That quote was from an Associate Justice of the Supreme Court. He then followed with this statement: "With this decision the Court has completed, I hope, its rewriting of the Fourth Amendment." This is what I am trying to ascertain from you. Do you share this philosophy? Would you be willing to give a new interpretation, never thought of or used heretofore, to change the impact of the Constitution and to decrease or to increase powers that existed or did not in the past under the Constitution, simply to try to do what they say—"to bring the Constitution up to date"?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. All right. I assume, then, that you agree generally with that philosophy that is expressed here?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, I do. I do not know what particular case that was quoted from, but I certainly
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. The words are those of Mr. Justice Black in Katz v. The United States (389 U.S. 347, 373 (1967)). 21
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I subscribe unequivocally to the statement read.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. All right. The Justice further said: I think it would be more appropriate for the Court to leave this job of rewriting (the statute) to the Congress. Waiting for Congress to rewrite its laws, however, is too slow for the Court in this day of rapid creation of new judicial rules, many of which inevitably tend to make conviction of criminals more difficult. Would you agree with what he said here in Lee v. Florida (392 U.S. 378, 385 (1968))?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I certainly agree that the Court should leave to the Congress the rewriting of statutes.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Well, this was the judicial philosophy of Mr. Justice Black, whom I believe Mr. Powell is to succeed. One other now. Another Justice said, and I quote: I am bound to say that what has been done is not likehr to promote respect either for the Court's adjudicatory process or for the stability of its decisions. I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for constitutional rights. But, in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitation which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason. This is a quote of Mr. Justice Harlan, whom you are to succeed on the Court, from Mapp v. Ohio ^ (367 U.S. 643, 677, 686 (1961)). What I am trying to ascertain, simply, is this: There is one school of thought today that believes that the Supreme Court, whenever it feels that the Constitution as written or as it has been interpreted is not adequate to deal with the conditions that prevail in society today, ought to give it a different interpretation to get, "it in to the mainstream," as some call it, of modern society. Do you believe that the Court or a Justice, under the Constitution, has the power to do that or the duty to do it, under his oath?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Under my oath I believe it would have neither the power nor the duty.
Senator John Little McClellan (AR)
Senator
(D)
Senator MCCLELLAN. Mr. Chairman, I do not want to take up all of the time this morning. I just wanted to lay this fundamental foundation. I am not one of those who believes the Court has legislative powers. I do not believe it should legislate. I do not believe that it should attempt to rewrite the Constitution. I thought Mr. Rehnquist shared those viewT s, and I just wanted to bring that out. I appreciate your answers, and I reserve the right to further questions. Thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Ervin.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. I happen to have an abiding conviction that the most precious possession of the American people is the Constitution of the United States. I agree with what Chief Justice Marshall said in Marbury v. Madison that the principles of the Constitution are intended to be permanent. I think the Constitution was written and ratified to place some of the fundamentals of Government, and the rights of individuals, above the reach of temporary majorities, and above the reach of impatient Presidents, and above the reach of impatient Congresses, and above the reach of impatient judges. 22 I think the words of the Constitution are plain and that it is the duty of the Court to hold those words to mean exactly what they say. I also believe that when the words of the Constitution are ambiguous that it is the duty of the Supreme Court to place itself as near as possible in the position of the men who framed those words, so as to ascertain by that means what those men meant those words to provide. I find myself entirely in agreement with what Justice Thomas M. Cooley of the Michigan Supreme Court and dean of the University of Michigan Law School said when he said that a Court which would give a construction to the Constitution not warranted by the intention of its framers is justly chargeable with disobedience of public duty and disregard of public oath. Now, it is frequently said that there is no qualifications for Supreme Court Justices. I disagree most emphatically with that view. I think that the qualification of a Supreme Court Justice is stated in about as direct and simple a fashion as can be by Chief Justice John Marshall in the case I just alluded to, Marbury v. Madison, where the Court was asked to disregard its oath to support the Constitution, and not to invalidate an act of Congress which was clearly in violation of the Constitution. Chief Justice Marshall said, and t think quite rightly, that the oath of the Supreme Court Justice requires him to accept fche Constitution as the rule for the Government. I think any other rule would result in the Constitution being converted into something in the nature of a quivering aspen leaf. I have opposed several nominees for the Supreme Court on the ground that their judicial actions indicated, their judicial and legal actions indicated that they thought the Constitution was something m the nature of a quivering aspen leaf, and they could switch its words to one side or the other to make it mean anything which suited their personal notion. And I think any man who would substitute his personal notions for constitutional principles is not fit to be a member of the Supreme Court. I do not care how great he might be in his attainments in other respects. I did not have the privilege of knowing you until you came to Washington as the Assistant Attorney General. Since you have been here in Washington as Assistant Attorney General you have accepted invitations on a number of occasions to appear before the Senate Subcommittee on Constitutional Rights and the Senate Subcommittee on the Separation of Powers, of which subcommittees I have the privilege of being chairman. On those occasions you have discussed some highly difficult and highly controversial questions arising under the Constitution. I did not always agree with your conclusions, and you did not always agree with mine. And I would have to add that there are some members of this Judiciary Committee that do not have the wisdom always to agree with me on such questions. (Laughter.) And so, I do not hold the fact that a man reaches honest conclusions different from mine against him. From my observation and experience, since you have been in Washington, on the way you have conducted yourself before these subcommittees, I have reached the conviction 23 that you possess what the American Bar Association calls professional competence, that you have a fine judicial temperament, and you have intellectual integrity. In other words, I am not going to ask you any question because I do not want to be shaken in my conviction. (Laughter.) If you are affirmed as a member of the Supreme Court, as an Associate Justice, I think you will meet the qualifications described byJohn Marshall, and that you will accept the Constitution as a rule for the governing of your actions as an associate member of the Supreme Court of the United States. For that reason, I am going to say without hesitation that it will be a pleasure to vote for your confirmation.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I will do my best not to disappoint you, Senator, should I be confirmed.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Hart.
Senator Philip Hart (MI)
Senator
(D)
Senate HART. Mr. Rehnquist, may I add my congratulations to you on your nomination to what 1 am sure to all lawyers is the pinnacle of our profession. I, as did Senator McClellan, have an opening comment I would like to make, and then some questions. But, before that, I would like to follow through with you on the point you were discussing—the extent to which you would, as a Justice feel free to change your position. You said, citing Mr. Justice Jackson, that there are occasions when even the best of lawyers find that they were wrong; and when thej^ make that discovery, we agree they should change their position. Now I am not talking about the lawyer engaged as an advocate, who argues the point of view that best serves the interest of his client. I am talking about a lawyer who is asked for his best counsel, after research, and concludes that the answer to a proposition is "yes." Later, when he is on a court or continuing in the practice, he discovers that he believes the answer is "No." Now, you say that he should not hesitate to indicate what he believes to be the correct answer when he makes the discovery; right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, Senator.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Can you tell me why a judge should not do the same thing, and explain why, if he does, there is any lack of fidelity to the Constitution?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU mean a judge changing his opinion as to what the Constitution or a statute means?
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Right.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not think there is any lack of fidelity to the Constitution if a judge, after mature consideration, decides that an earlier expression of opinion on his part as to the meaning of a particular clause was in error.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Does he surrender that sense of obligation or does that obligation to make correct a position become any less when some earlier court has answered it, does he still not have the same obligation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. He certainly does have the same obligation, in my opinion, Senator. I would add only the qualification that he must take into consideration the reasoning and the strength of the earlier precedents which really is a part of the Constitution. 24
Senator Philip Hart (MI)
Senator
(D)
Senator HART. But that is also what he must do as a practicing lawyer—seek to understand the opinions on which he bases his conclusion. So the function, and the responsibility, is no different; is it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I see no difference.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. We get lost sometimes in the shorthand labels we give to processes of the mind.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It may be more difficult for a judge to change his mind from an earlier position taken as a judge, than it is for a judge to change his mind from an earlier position taken as an advocate, since the two roles are so clearly different. But I think the same principles would apply to both.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. The obligation of a judge, and the functions of a court is to identify and seek to deliver justice; is that not right? Do you agree with me?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I remember a statement attributed to Justice Holmes at one time who said he was always suspicious of an advocate who came before the Supreme Court saying this was a court of justice, because he felt it was a court of law. I do not see any irreconcilable conflict in those two statements. I think if we say justice under law, that that is a very happy resolution. But the suggestion that the function of the judge is to deliver justice, in the sense of meting out what he personally conceives to be justice, quite apart from the Contitution or law, I would have to reject.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. I would agree with that, but my question relates to the theme we have heard that if a person reads the Constitution, and his judgment as to what it means reflects his personal philosophy, there is something wrong with that. I cannot buy that suggestion because, for example, what do the two words "due process" mean? They are very simple words, but how could anyone suggest that in his resolution of their meaning as applied to a set of facts he is not in part reflecting his philosophy?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly my experience, in researching constitutional cases as a private lawyer, or as the Assistant Attorney General, has satisfied me that the due process clause of both the fifth and the 14th amendments is an extremely broad one and difficult to pin down, as an expression of constitutional law. And there is also no doubt in my mind that each of us, the Justices who have been confirmed in the past and I, if I were to be confirmed, would take to the Court what I am at the present time. There is no escaping it. I have lived for 47 years, and that goes with me. But I would hope that broad as the due process clause is, or broad as any other clause of the Constitution might be, I will try to divorce my personal views as to what I thought it ought to mean from what I conceived the framers to have intended.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. If Senator Hart will pardon my interpretation, what you are saying is exactly the same thought that Tennyson has his character Ulysses express when he said "I am a part of all that I have met."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Very true.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. All of us are.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Which makes relevent another observation made in. previous hearings: what we were is now part of what we now are, and what we are is part of what we shall be as a judge tomorrow. That makes it a little less difficult for us to explore your past views. 25 Now, the question of the Senate's proper role in this advice and consent procedure has been discussed rather thoroughly in the last few years, and some general ground rules are established. I think I agree with Senator McClellan on the general definition of some of those rules. We can agree that the nominee should be a man of evident excellence, with outstanding capacity however he may have demonstrated that excellence. Moreover, those characteristics should be evident and recognized by the nominee's brethren at the bar. I hope we are never again confronted with nominees where you have to strain to find it. You, Mr. Rehnquist, and this is also true of Mr. Powell, can have it said of you that you do clearly have such a record of ability. Another fairly clear-cut hurdle is the possibility of disqualification because of significant conflicts or similar activities which might compel opposition because of the effect the nomination would have upon the Court and its stature in our society. One purpose of these hearings, of course, is to explore any issues of that nature, if they arise. Then there is a group of more difficult considerations which have been explored in past hearings. First there is a nominee's judicial philosophy. By that I mean his view of the role of the Court in our system of Government and the duty of a Justice in interpreting and safeguarding our Constitution, because let us not blink it, we do interpret the Constitution. It is not a slot machine where we put in a law and push a button to see if it is constitutional. Second, there is a nominee's apparent willingness to enforce the great constitutional guarantees in the protections of which the Court has played a unique role throughout our history. And third, there is a less tangible consideration of a man's breadth of vision, his compassion, his awareness, and understanding of the problem of our society to which the broad provisions of the Constitution must be applied. In the past, as one Senator, I have acknowledged hesitancy to oppose a nominee with judicial experience merely because I might disagree with the results he had reached in specific cases. However, I have also indicated my reservation about sending anyone to the Court whose overall record suggests a lack of sensitivity to the protection of individual rights and liberties—an insensitivity so clearly manifested that his elevation to the Court would place a cloud over the Constitution's promise of justice to the poor, the weak, and the unpopular, who must look to the Court for their protection. As a predecessor of Senator Hruska, Senator Norris of Nebraska, put it, we ought to know how the nominee approaches these great questions of human liberty. But it is easier to explain what we should find out than to put a handle on how you do it. Finally, some observers have noted that when the Executive specifically chooses candidates in part because of their particular philosophy, rather than these more general credentials, the Senate, as constitutional coequal in the process of filling vacancies on the Court, must review carefully the implications of the Executive's expressly chosen criteria. I am sure that these matters, too, will be examined in these hearings. On some of these questions the nominees, themselves, will be able to offer the committee the benefit of their thoughts. 26 Now, Mr. Rehnquist, I would not ask you whether you agree or disagree with me that you possess both excellence and competency, but I would like to explore with you this matter of the Senate's role in regard to the nominee's philosophy and his views on the great issues of the people before the Court. I know you have written on that question. The question is a little less academic now than when you wrote. Have you given it any further thought?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have given it some further thought, Senator, and I would say that I have no reservation at all about what I said from the point of view of the Senate. I think I did not fully appreciate the difficulty of the position that the nominee is in. [Laughter.] I say that not entirely facetiously, because the nominee is in an extraordinarily difficult position. He cannot answer a question which would try to engage him in predictions as to what he would do on a specific fact situation or a particular doctrine after it reaches the Court. And yet, any member of the committee is clearly entitled to probe as to what might be called, for lack of better words, the judicial philosophy of the nominee. I think that is the right and the prerogative of any Senator who feels that is an appropriate test, and it would be presumptuous of me, perhaps, to even say that. But, I have no disagreement at all with my earlier statement in the Harvard Law Record that it certainly is a legitimate concern of the Senate if it chooses to make it so, what the judicial philosophy of the nominee is.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well, can you describe for us what your judicial philosophy is? My question just underscores the difficulty of the committee, let alone the nominee in such an inquiry.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is so difficult to do it in meaningful terms.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well, let me see, if I can push a little bit. The President has told the country that he has selected you and Mr. Powell because you were "judicial conservatives." Now, I cannot ask you to put yourself in his position, but that is what he is telling us. He then explained that by "judicial conservative" he meant a judge who was not too much of an activist, who interpreted the Constitution strictly and did not try to include his decisions towards a particular political or social view he thought desirable. And on the other hand, the President went on to offer another qualification to being a "judicial conservative" as he used it. He indicated that to be a true judicial conservative one must also be a judge who will swing the pendulum more to the side of the forces of Government, and away from the protection of the individual rights of the accused. He did not put it in those exact words, but that is in essence what he said. Now, I am wondering if, in your consideration of judicial philosophy, you see any inherent inconsistency between these two definitions of judicial conservative. In other words, how can a nominee be put on the Court for the express purpose of tipping the balance more toward the Government and still be a nominee placed on the Court to follow strictly the man- 27 dates of the Constitution, without regard to a personal philosophy of law and order, or desired results in a particular area of the law? Help us on that one.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS you suggest, Senator, I cannot speak for the President on the subject. I can give you my own observations. I suppose it is conceivable that one might feel that the two weie consistent if he also felt from his own study of decided cases that the pendulum had been swung too far toward the accused not by virtue of a fair reading of the Constitution but by virtue of what was conceived to be some outside influences such as the personal philosophy of one or more of the Justices.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. YOU would not have a personal philosophy if you became a Justice?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would certainly expect that I would have a personal philosophy. I mean, I have lived 47 years.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Then in saying the results might be different from past decisions you suggest a new Justice may find himself in disagreement with others on our Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, my personal philosophy I would hope to disassociate to the greatest possible extent from my role as a judge.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well that almost gets us back to where we started. Let's take this business of balancing the competing interests of the Government and the individual defendant. It is admittedly enormously difficult, indeed one of the most difficult aspects of interpreting the Constitution and one of the toughest jobs that the Court has. Would you agree with me that that assignment has to be approached with as strong a concern for the Bill of Rights as foi either the preamble or the second article which creates the executive branch?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Unequivocally.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. And would you, without hesitancy, protect the constitutional rights of any individual or any group as your rights best enable you to interpret those rights, without any regard to your personal feelings about the particular view or position of the individuals who were asserting rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Without hesitation.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Then I turn to an article you wrote some years ago in the American Bar Association Journal. There you were discussing two Supreme Court decisions, the names of which I do not have, but they both dealt with the denial of permission to take State bar examinations. In one case an admitted ex-Communist was denied the right to write a bar examination. And in the other an alleged Communist. Now, your technical analysis of the decision is one thing. But there is something disturbing in the nature of your ultimate conclusion. In reference to the defendants both being alleged Communists you wrote: Conceding that they should be treated no worse than any other litigants, is there any reason why they should be treated better? Nobody quarrels with that. And you conclude: A decision in any court based on a combination of charity and ideological sympathy at the expense of generally applicable rules of law is regrettable, no matter whence it comes. But, what could be tolerated as warmhearted aberation in the local trial judge becomes nothing less than a constitutional transgression when enunciated by the Highest Court of the Land. 69-267—71 3 28 Now, the opinions in both of those cases were written by Mr. Justice Black, recently described by the President as a great constitutionalist, who always based his decisions on honest interpretations of the Constitution. But, to me—this is the disturbing thing I would like your reaction on The meaning of your conclusion, "a decision based on charity and ideological sympathy . . ." "warmhearted aberation" seemed clear. It seems to suggest that Supreme Court Justices decided those two cases as they did because of their sympathy for Communist ideology. How, do you react?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would react to it in this way, Senator, recalling as best I can my thoughts when I penned those words some—what was it?—13 or 14 years ago. I would say that I had no intention then, and certainly would not say now, that Justice Black, who authored the opinion, or the others who concurred with the opinion, wrote it because they were sympathetic with Communism. I think the language I used was meant to suggest that they sympathize with the plight of unpopular groups, such as Communists, and I certainly did not mean to suggest that this is an illegitimate sympathy, but I did not feel that sympathy any more than any other sympathy ought to be read into the Constitution.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well, if you go on the Court, would your judgment in a particular case, assuming that you felt the Bill of Rights or the 14th amendment required you to protect an individual, would your willingness to give them that protection be in any respect modified for fear that some critic might attack 37 our decision as being a result of ideological sympathy for that unhappy defendant?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I do not believe it would.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. NOW, one last question in this effort to help us. How do you get a handle on philosophy? I am sure you have been reminded often in recent days of the article you wrote when you were clerking for Mr. Justice Jackson, or shortly after you concluded that period. You wrote that when you were clerking for the Court a majority of the clerks subscribe to a liberal point of view, whose tenets include, and I quote: Extreme solicitude for the claims of Communists and other criminal defendants, expansion of the Federal power at the expense of state power, great sympathj^ for any Government regulation of business, in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren. Now, when you wrote that, did you mean that you thought the Warren court was sensitive to the constitutional rights of all citizens, including the groups you named, or did you mean that the Court was more sensitive to their rights because of some ideological opinion? What do you mean by that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think I meant the latter.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. And you disagree
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; that was roughly the same time as the Schware and Konigsberg cases being handed down, which I did take the time to study, as a private practitioner, albeit without the benefit of briefs and arguments. And I felt that given my best lights on the subject at the time, that Justice Harlan's dissent was the better view of the Constitution.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. If I may interject, that view was adopted on the second hearing of the case; was it not? 29
William H. Rehnquist
Nominee
(R)
Mr. REHNQTJIST. AS I recall, there was a shift on the second hearing of the case.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. The Konigsberg case arose in California?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. And the California statute provided that in order to obtain a license to practice law in the courts of California a person had to have a good, moral character and in addition had to show that he did not favor overthrowing the Government of the United States by force or violence. When Konigsberg appeared before the board of law examiners of California he stated he did not now favor overthrowing the Government by force and violence but he declined to testify as to any of his previous affiliations or actions and they denied him the right of a license. It was appealed to the Supreme Court and Justice Black wrote the opinion in which he says the due process clause, in effect, did not preclude a board of law examiners from cross-examining Konigsberg about past affiliations or statements. The case went back to California, and the bar association held that they did not believe what Konigsberg testified, and denied him a license on that ground, and it came back to the Supreme Court of the United States, and a majority of the Court affirmed the action of the State of California. Now, I believe that is correct as a synposis, paraphiasing what it meant to me as a practicing laAvyer.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Your recollection is probably clearer on it than mine is, Senator.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. I thought the Schware decision was correct because they denied the man—and I believe it was an Arizona man incidentally
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. New Mexico.
Senator Sam Ervin (NC)
Senator
(D)
Senator ERVIN. New Mexico. They denied the license on the basis that he had, for some years, been affiliated with some Communist organization.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. My question did not go to whether the decision w T as right or wrong. I was trying to find out what the nominee ascribed as a motivation for the Justices who wrote that opinion. That was what I was driving at.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Did I answer your question, Senator?
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Yes; would you have phrased it differently if you had anticipated today?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, not only, had I anticipated today, but were I to rewrite it, without any prospect of a confirmation hearing, I do not think I would have used the term "political philosophy." But I think that my same observations would obtain.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Mr. Chairman, I have some other questions, but I know my colleagues do also. Do you want us to reserve, pass and return?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. YOU can. There is a rollcall vote in the Senate at 12:30, and I thought we would run until then.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well, on this business of separation of powers, A\ith each branch serving as a check upon the other, here is where you and Senator Ervin have had eailier exchanges, I know. In some of your articles, and indeed in testifying on occasion in support of several 30 controversial proposals by the Nixon administration, there is a common thread that some of us see, an expansive view of inherent Executive powers. Now, I appreciate that you have come up here and testified in support of certain measures as an advocate, and I know of no administration in history that has ever been reticent about explaining why they thought they could govern best. But, now as a nominee, could you give us youi views about the limits under our Constitution of enumerated powers on the argument of necessity for the exercise of supposedly inherent Executive power which reaches beyond judicial control? Mr. KEHNQUIST, I know you realize, as well as I do, Senator Hart, my obligation to keep irry response on the general level rather than trying to address specific questions, or to define the professional quality of my advocacy, which I think is a perfectly legitimate question for anybody on the committee to inquire into. I believe I am on record in one of the several hearings of Senator Ervin's • Senator HART. Well, let me interrupt you simply to say I do agree that there is a limit beyond which you ought not to go in these discussions. But perhaps I should identify what may be the most troublesome application of this doctrine of inherent power. It is the area of surveillance, whether it is electronic or otherwise, and here it is a little hard to say that 3011 can put yourself into the shoes of men who in 1789, or shortly thereafter, wrote some general language, to say that we know perfecth' well how they intended to handle wiretapping and bugging. One's own philosophy does get tangled up in how you handle this one. Do you perceive any constitutional limits on the power of the President to maintain surveillance over those who oppose his policy, if he believes that their opposition may endanger the security of the country?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I certainly perceive limits in the first amendment, in the fourth amendment, and without reading a catalogue, I suspect there are other limits.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. What about an Executive that would put Senators under surveillance because he might conclude that their activities in regard to his policies may weaken our domestic security?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, given the latter qualification, I would think it was improper and a misuse of executive authority. I testified before Senator Ervin's subcommittee that surveillance of a Member of Congress, and we were discussing surveillance in a public area, so to speak, of public meetings, public street, that sort of thing, was not per se unconstitutional. I also added that the only legitimate use of surveillance was either in the effort to apprehend or solve a crime, or prevent the commission of a crime, and I think I said at that time that surveillance has no proper role whatsoever in the area of where it is simply dissent rather than an effort to apprehend a criminal.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. In those proceedings before Senator Ervin's committee, as I read it, you suggested that really surveillance did not have a chilling effect on the exercise of first amendment rights, and you cited the fact that 250,000 people turned out in this city to demonstrate against the Government policy, even though it was rather 31 widely known that that activity engaged in by the 250,000 would be subject to observation and surveillance. From your own personal experience, would you not agree that people differ in their willingness to risk harm to their careers, their future, in the course of protesting policies with which they disagree? Is it not possible that more, hundreds of thousands of Americans might be deteired from exercising their first amendment rights as vigorously as they would like to because they fear the unknown impact on their families, and their careers, of a Government file, investigation reports resulting from surveillance of lawful activities? Is this not an area for judicial control of executive action? Mr. REHNQTJIST. Again, trying to keep my remarks either general or historical, certainly I do not have sufficient knowledge to say that a number of people might not have been deterred from coming to Washington in addition to the 250,000 who came, for fear that whatever surveillance was in effect at the time might somehow damage their public careers. I do recall that in an action in Chicago in connection with Army surveillance, which of course, was stopped by this administration, Judge Austin, I believe, found as a fact that it had not had a deterrent effect. I would add one further comment, if I might, that since my testimony before Senator Ervin's committee, two people in the Justice Department have called my attention to an unreported district court case in Illinois in which a fact situation that we really did not cover, I believe, at Senator Ervin's hearings, was involved. The case was not simply of surveillance, but of virtual harassment of a Mr. Giancana in Chicago, where the district court did grant him a rather extraordinary form of relief. He had complained that he never played golf but what the FBI foursome was right behind him, and the district court granted equitable relief and said that there must be an intervening foursome. (Laughter.)
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let us have order.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The harassment element was something I had not really considered in my testimony before Senator Ervin, and while I think it would be inappropriate for me to express a particular view of the particular facts, I would say that certainly it was not my intent to rule out careful consideration of that aspect of the thing.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Mr. Chairman, I suggest that if there is no objection, that others be permitted to continue questioning. I would reserve the right to return with additional questions.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Sure.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. But before I do, in an effort to summarize one aspect of some exchanges we have had, let me put it this way: I agree with the critics of some of the controversial Supreme Court decisions that those decisions did handcuff the police. I agree that the decisions did do that. But what is the purpose of the Bill of Rights? Is that not exactly what it is supposed to do?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It certainly is the purpose to put restraints on the Government.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Exactly. So establishing the fact that restraints resulted from the decision has nothing to do with the prudence or the wisdom or the soundness of the decision; do you agree? 32
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, it might have something to do with the prudence or the wisdom of the decision, but it certainly has nothing to do with the soundness.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. Well, is it not "prudent," if you agree that the Bill of Rights was intended to achieve an important goal; namely, to protect the individual who, even in the case of the strongest among us, is very weak in the face of Government?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. All I meant to say was I do not feel prudence or wisdom are necessarily the first test of a constitutional decision. If that is what the Constitution calls for, the fact that the police are handcuffed as a result is no argument against it.
Senator Philip Hart (MI)
Senator
(D)
Senator HART. I reserve my time.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Than you very much, Mr. Chairman. I want to extend a warm word of welcome to you, Mr. Rehnquist. Quite clearly you come highly recommended as a student and scholar of the law, and as a superb craftsman, and as being extremely gifted in your legal mind. And I want to join my colleagues in extending congratulations to you for being nominated for the Supreme Court, and extend a word of welcome to you here this morning. I think Senator Hart, in his initial comment, stated very well the criteria which many of us will consider in performing our responsibility, under the Constitution, of advising and consenting. I think one of the things which was included in the latter part of his remarks, after he talked about the significance and importance of concerning ourselves with judicial competence, fairness, and objectivity, is the question of philosophy You, yourself, have mentioned this as a reasonable area of inquiry for the Senate, and have actually suggested that we pursue this in trying to evaluate the qualifications of a nominee. I think in nominations we have to judge, at least speaking for myself, not only the particular qualities and qualifications of the individual, but also the selection in the context in which it has been placed by the President. We must also consider what this nomination will mean for the position of the Court in continuing to support and guarantee the various fundamental rights and liberties of the individual, in preserving the important concept of the separation of powers. The President has indicated in his comments to the Nation that he has set out a plan for the Court, a role that the Court would play in the context of various rights and liberties of individuals. And I think we at least have to assure ourselves, if we are to meet our responsibilitjr, that these rights and liberties are going to be protected by the Court, and that the balance will not have shifted so dramatically as to take us backward from what I think has been one of the most dramatic and significant eras in the history of the Supreme Court— since the founding of the Republic—under the leadership of Chief Justice Warren. So, I, too, would like to explore, if I could, with you, in the time that we have before the vote, at least your views, and particularly your actions in the past. I have noticed that you have comented on the role of the Congress in the area of the war power. You indicated in a public statement 33 very serious reservations about antiwar amendments and the constitutionality of antiwar amendments. I would be interested in whether you feel that actions that were taken, for example, by the Congress in supporting a Mansfield type of amendment would fall within your criteria of being an unconstitutional act by the Congress?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I certainly understand your interest, Senator. The expression of a view of a nominee on the constitutionality of a measure pending in Congress, I feel the nominee simply cannot answer. If it is a question of public statements I have made, as the rational basis for them as a lawyer, I would be happy to try to go into it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am referring here to the speech you made in 1970 at the National Leadership Training School in Pennsylvania, just 5 weeks after the Cambodian invasion. You indicated that A^OU felt some proposed end-the-war amendments were unconstitutional, were trying to interfere with the President's powders. What could you tell us about your line of thinking which brought you to that conclusion?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, insofar as the antiwar amendments would attempt to limit the President's authority to preserve the lives or safety of men already lawfully in the field, I had reservations about the constitutionality, which I expressed.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, did you have any amendment specifically in mind at that time, which you felt would do so?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS I recall there were a number of amendments pending in the Congress, quite varying in their approach, and my recollection is not sufficiently good to recall the text of any of them. But I am sure I felt with at least the most restrictive that there was a constitutional problem.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU recognize the responsibility of the Congress, certainly with the warmaking powers, and that this is a shared power?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you feel that any determination by the Congress that the war ought to be ended, or terminated, or the ending of financing or funding for those war activities would raise a constitutional question, in your mind? In terms of the action of the Congress?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Let me answer it this way: To me, the question of Congress' authority to cut off funds under the appropriation power of the first amendment is so clear that I have no hesitancy in saying so, because I do not regard that as a debatable constitutional question. I think if one were again to get to the more restrictive types of amendments that were pending last year, there is some area of debatability, and it would be improper for me to answer that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Have you given careful thought to the various proposals which had been introduced and were then discussed on the floor? I for one did not see any proposal that was introduced which was not sensitive to the question of the lives or a threat to the lives of American soldiers in Vietnam. But your comments said the President's opponents in the Senate had offered a series of resolutions which would seriously, and you say in some cases, I believe, unconstitutionally restrict his authority as Commander in Chief.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I am on record in a discussion before, again, one of the meetings of Senator Ervin's subcommittee as saying, and 34 I think it is in these words, that I do not believe Congress has the authority, given the situation that existed in 1970, to tell the President that he shall not try another attack on Hamburger Hill. I believe that to be a well-reasoned advocate's statement of position, and I do not recall the full
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, would you have any trouble about the power of Congress not to permit the use of American troops in Laos or Thailand? Was there any question in your mind as to the constitutionality of the action that was taken by the Senate to have American troops out of Cambodia at a time definite, or is this whole question of the warmaking power something which you are going to relinquish completely to the President?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And I thought, for one, that it was the very definite responsibility of the House and the Senate, which perhaps had too long been unexercised in terms of achieving a joint responsibility with the President.
William H. Rehnquist
Nominee
(R)
Mr. REHNQursT. Your question has several parts to it. So far as relinquishing completely to the President the warmaking power, that is a constitutional doctrine inconceivable to me, and I think so clearly so that I need have no hesitancy in saying so here. So far as discussing my opinion as a potential, as a nominee, of particular constitutional amendments which 1 did not discuss as an advocate, I think that would be improper.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I was thinking again back to your thinking at the time you wrote the article. Well, we can move on. I am interested m your statements and comments about the use of force in our society. You made this comment: I do offer the suggestion in the area of public law that disobedience cannot be tolerated, whether it be violent or nonviolent disobedience. I offer the further suggestion that if force or the threat of force is required in order to enforce the law, we must not shirk from its employment. That is a quote.
William H. Rehnquist
Nominee
(R)
Mr. REHNQursT. I believe, Senator
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Representing your views.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes. I think I recognize it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was wondering how you would react to the use of force in the Kent State situation by the National Guard. Could you form any opinion about the use of force in that situation? Mr. REHNQursT. I obviously do not have firsthand knowledge of the facts. Are you interested in my reactions and the impressions I have gotten? Senator KENNEDY. Yes.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It was a misguided and unwarranted use of force.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And were you sufficiently concerned about it to make these views known to the Attorney General when the question came up about the possibility of convening a grand jury?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. This again, this type of question again poses a difficult problem for me, Senator, because there is clearly a lawyerclient relationship here. And if you are inquiring about any advice I have given to a private client, it would be unthinkable for me to testify to it. 35 Nonetheless, my role has been one in reform of public office, and I am bound to say that I think you are entitled to get something more out of me than simply saying on every occasion that there is a lawyerclient relationship. This one is easy for me because he never asked me.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let us recess until 2 o'clock. (Thereupon, at 12:30 p.m. the hearing was recessed, to reconvene at 2 p.m. this same day.) AFTERNOON SESSION The CHAIRMAN. Let us have order.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Senator KENNEDY. Thank you very much. Mr. Rehnquist, just as we were winding up earlier this morning, I was asking you some questions and I guess you had indicated, I believe, that there was a problem of the client-lawyer relationship in your conversations with Mr. Mitchell. Then you indicated finally that it would not have made much of a difference because you had not been asked anyway about Kent State. Is that right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe that was where we left this morning, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me ask you, getting back to the question of Kent State, you responded earlier today that you felt that obviously there was an excess use of force by the National Guardsmen. As you well understand, there has been a considerable question in the minds of many people, particularly the families of those that were lost, whether there should not have been a convening of a grand jury, and a more rigorous prosecution of those who were involved in what you would say was admittedly an "excess use of force." Others have talked about homicide. I am just wondering from your own personal view whether this struck you as an individual as sufficiently worrisome to you and whether you, on your own, initiated any kind of action and brought this to the attention of the Attorney General, or attempted to provide an initiative on this particular question of Kent State? Is there anything you can tell us about that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU mean urging the Attorney General to call a grand jury?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I did not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, was there anything that distressed you, even just reading the newspapers, not having, as you mentioned this morning, particular responsibility in this area? Were you concerned about it or outraged by it or distressed by it to the point that you felt that there was any kind of moral compunction on you to try to find out what the Justice Department could do in order to do justice for those that had been lost?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, again, judging from the newspaper accounts I do not see how anyone could help but be distressed by what happened there. And the primary source of distress is the death of the students. I think one cannot help but be distressed over the position the National Guardsmen were put in. That does not justify what they did. But, so far as my own official responsibilities are concerned, our office is primarily a responder rather than an initiator. We are not an operating 36 division and the primary initiative in this area would be the Civil Rights Division.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, of course
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. And I do not believe I have ever thought it proper to simply jump into somebody else's bailiwick and say: Let us do this.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, of course, the Justice Department was the initiator in the Pentagon Papers case, was it not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, my impression is that this was undertaken at the behest of the Defense and the State Departments.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, is that what you would have wanted, to do something about Kent State? You had the behest of the families that were involved. Are they not given equal standing in hearings in the Justice Department with the State Department?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would not be at all surprised if they had been given hearings in the Civil Rights Division, just as the Defense and State Departments were given hearings presumably in the Internal Security Division in connection with the Pentagon papers.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU mean that the Kent State question was given hearings?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I say I would not be surprised.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But, you did not try and pursue this to find out whether they would be given any kind of a hearing?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I did not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But, bringing in now the Pentagon papers, let us put those situations back to back. What do you think is the message to young people generally from the actions of the Justice Department when they see the fact that it took about 15 months for the Justice Department to make a final determination that it was not going to convene a grand jury in the Kent State sitaution—and yet, in the Pentagon Papers case, in a matter of hours they convened grand juries and granted immunity and performed all of the investigatory functions that I wish they had, quite frankly, for the Kent State people. I am interested now more in 3-our philosophical view, what you think the message is to young people or to others that are concerned about the state of justice in our societjT . Do you think there is any message that can be drawn?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. SO far as the criminal aspect of the Pentagon papers situation as compared to the criminal aspects of the Kent State grand jury prosecutions I am simply not familiar enough with either of those to comment personnally. You are not asking me for my personal comments. I take it you are asking me what is a younger person going to think seeing it?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What do you think a young person—how would they look at these two different kinds of situations? Do you think they would have any reason to be concerned generally about the role of the Justice Department as a source of justice in our society? I am more interested in your view.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Just to read newspaper accounts without any full understanding of what may have been very different differentiations between the two situations, I think very likely many young people may have felt that one is not being treated the same as the other. That would not be my own personal opinion, but you are asking me 37 what I think a young person might think simply on the basis of media accounts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, now let us take your personal view. How would you have looked at it as someone who, as you have mentioned, was not intimately involved in either of the situations?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. But, I am a lawyer, Senator Kennedy, and as a lawyer I feel that I would not make or jump to a conclusion that the disparity in time meant a disparity in the quality of justice administered without having a rather thorough knowledge of the factual situation, which I simply do not have.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think Congress has a right to investigate what happened out at Kent State, and what steps were taken by the Government in investigating the Kent State incident?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I can answer generally to the effect that I think Congress has very significant oversight authority in connection with the operation of the executive branch. Whether that authority would extend to this particular situation or not I am simply not prepared to say.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Can you see an}' reason why Congress should not have, for example, the FBI investigation files?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; I can see a reason.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What would that be?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Correspondence across my desk between you and the Attorney General, and again, I feel free here since it has gone out of the Department to comment on it to the extend of my input, and I think you are entitled to get that, that some 30 years ago when Justice Jackson was an attorney general he wrote an opinion refusing the request of Carl Vinson, who was then chairman of the Naval Affairs Committee. Chairman Vinson had requested that his committee be furnished with FBI reports, and Justice Jackson in his opinion made what I felt was an extremely sound argument for the proposition that investigative files in the executive branch ought not be furnished to the legislative branch, both because of possible unfairness to the prosecution and possible unfairness to the potential defendants.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. AS one who has looked over the correspondence, what is going to be the answer? Is it Executive privilege that is being asserted?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is a branch of the doctrine of executive privilege.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. IS it not possible that this material can still be made available to the Congress without being made available generally to the public?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is a question of fact, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Who should decide that? Are you going to be the ones who are going to decide?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I am certainly not, but I am suggesting that I think the executive branch is entitled to consider, in analyzing that type of request, its past experience as to congressional committees maintaining a pledge of executive session type of confidentiality. And I certainly do not suggest that I know anything about the facts in connection with your own particular committee that would lead me to think that it would not be kept confidential.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, then, what do you think would be the reason that the material would not be made available, the investigations for executive sessions?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, as I understand it, and I am simply recalling the correspondence, and I do not think there was any offer of executive sessions.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But, if it were to be used only in executive session, from your personal point of view you would not see any reason why it should not be made available?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think to the extent to which I can answer that question, with the sense that I am adviser to the Attorney General, I would sa3" that that would be an added factor to be weighed in the case.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you talk about this material to the Scranton Commission?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I did not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you know whether the Justice Department did?
William H. Rehnquist
Nominee
(R)
Mr. REHXQUIST. My impression is that some of it was made available to the Scranton Commission.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the}r made some available and held some back?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not know that much about it, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What about in the State of Ohio? Do you know whether it was talked about in Ohio?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My impression is that some of it was made available in an unknown quantity. So far as my knowledge is concerned, it was made available to the prosecuting attorneys in the State of Ohio.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could we go into the area we were just talking about, the Pentagon papers. Could you tell me what role you have had in the Government's action to prevent publication of the Pentagon papers?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU realize, of course, I am sure, the difficulty that that question poses for me because of my relationship with the Attorney General. It does seem to me that because the Government ultimately took a public legal position and argued the matter in the courts, that I would not be breaching the attorney-client relationship to answer your question. I am hesitant, but I believe that I am right in saying that I had a slipped disk operation in the latter part of May, and was either at home in bed or in the hospital until about the latter part of the second week in June. I am just tiying to recall from memorj^. Then I started coming back into the office half days, and found that I was overdoing the first couple of days, so I stayed out again, And I think it was either on a Monday or Tuesday I was back in, perhaps for the third time, on a half-day basis, and the Attorney General advised me that the Internal Security Division was going to file papers that afternoon in New York to seek a preliminary restraining order and asked me if I saw any problem with it. And it was a short-time deadline, and I rather hurriedly called such of the members of my staff together as I was able to get. When we reviewed it we came across Near v. Minnesota, and advised the Attorne}T General that basically it was a factual question so far as we could tell. If the type of documents that were about to be published came within the definitional language used by Chief Justice 39 Hughes in Near v. Minnesota there was a reasonable possibility that the Government would succeed in the action. I believe I had one other conference with the Attorney General, and I think that was as to who should appear for the United States in the proceedings in New York and in the second circuit. I then went to the beach for a week during which time the arguments took place in the Courts of Appeal, and I think the Supreme Court case was argued while I was at the beach, too, and I had no further involvement in it than that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, are there any circumstances that you see where the executive branch would be able to impose a prior restraint on these papers?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not think it is proper for me to answer that question, Senator. That has just been before the Supreme Court. If you want me to tell you what I understand the law to be as of now, I am not at all sure you would be interested in my account of that, and I think my own opinion is something that is simply too close to the type of question I would be asked to describe if I were confirmed, so that I ought not to answer it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, let me ask you, if you would, rather than giving us a sort of decision, I would be interested in how you would weigh the different considerations, what value, what weight you would give to the different factors. I am interested not so much than in your telling me how you woidd come out as in what you think are the various balancing factors and what weight you would give to these items.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would be reluctant to get into much detail in that for the same reason. I certainly have not quarrel with the language in the per curiam opinion that the Supreme Court handed down in connection with the New York Times case that prior restraint comes before this Court with a heavy burden on it. I do not think it would be appropriate for me to go further than that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am trjing to get at least some idea of how intensively you believe, for example, in the freedom of the press. I mean, I am once again trying to elicit, at least get some kind of idea, as you suggested in your law school newspaper article, of your own feelings and beliefs, and how important that freedom is in a free society, how essential it is to the preservation of the Government structure? How important is it in terms of the separation of powers?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe it is very important.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what can you do to help me to try to evaluate the significance of your views?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think it would be inconceivable for a democracy to function effectively without a free press, because I think that the democracy depends in an extraoridnarily large degree on an informed public opinion. The only chance that the "outs," or those who do not presently control the Government, have to prevail at the next election is to make their views known and the press is one of the principal, probably the principal media in the country through which that can be accomplished. 1 believe it is a fundamental underpinning of a democratic society.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. What would be your view—would you permit, say, the suppression by injunction of a newspaper that advocated violence? What could you tell us? 40
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that is too close, Senator. I would decline to answer that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you say that the importance of a newspaper is in informing the public, and that is a very general kind of answer which I think you must understnd doesn't help us much in trying to gather at least some greater degree of sense of your commitment to some of these guarantees in the Constitution.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I am not the first nominee that you or your fellow Senators on the Judiciary Committee have had this problem with. And I can fully sense the problem you have, and surely you can sense the problem that the nominee has, too. Past nominees have generally confined themselves to fairly general expressions, which I am sure are less than satisfying to the Senators. But, in the same token, to start discoursing on one's view, if one has a view, of of what the law should be in particular cases, or what he thinks the Constitution should be in particular cases, would strike me as entirely unappropriate.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I was asking you about your own kind of deepseated belief in the importance of the free press in our society. Now, you know, it is one thing to say a free press is essential if we are going to have democracy, and leave it that way. Or you could give us, at least, I would hope, some greater kind of feeling about the importance for you of that institution and the importance of due process and the importance of equal rights and some of these others. That is what I think we are trying to get at without making direct reference to a case. Now, I do not think that that is asking too much, and in fairness to the nominees that I have heard before the committee, they have responded to that.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I simply do not feel I can answer, properly answer the question about the constitutional principles that would be applied to a newspaper that advocates violence. I think that is too close to the kind of question that might come before or one might be called upon to answer as a Justice of the Supreme Court. I would be glad to try to respond to some other question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what do you think are some of the competing values in the free press issue? What would be the other kinds of makeweights that would affect the balance for you on free press questions?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would say one would be the extraordinarily and presumably very rare situation contemplated by the language in Near v. Minnesota where you had the prospect of a newspaper publishing troop movements or troopship sailings with an extraordinarily high degree of danger, not to Government policy, but to the lives of the men who are engaged in the service of the Government.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I do not think you would find any disagreement.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is what bothers me about it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What would be some of the others?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am trying to think of cases that have
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I am not——
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Just to give me, you know, ideas of what arguments have been made. I think we presently have under submission somewhere in the Government a brief on behalf of the Newspaper 41 Publisher's Association that they should be exempt from the price freeze because of freedom of the press. Now, I have not had an occasion to review the merits of that brief, and I doubt that I will in my official capacity, because it belongs to another department. I would think that a newspaper's claim on the grounds of freedom of the press to be exempted from very unevenhanded types or even-handed types of economic relations such as the antitrust laws, the copyright laws, and a price control law, the interest of the Government in applying economic legislation uniformly so long as it is not hostilely inclined to the press would be another interest one would have to consider against the claim of freedom of the press in a situation like that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In terms of the national security you are, you know, giving a very limited prescription on that, which can certainly be accepted and I would be willing to agree with you. But as I say, I am interested in just what considerations are in your own mind. Again I realize the limitations on being able to say how you would come out in a particular given situation or case, but I am trj'ing to elicit from you the sensitivity of your feelings on these questions.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have said I place an extraordinarly high value on it, and I do not blame you for feeling you want something more specific than just a rather, what you may well consider, pious declaration, and yet I find that when one tries to elaborate specifics they tend to be things no one would disagree with or else we get into an area where the matter is likely to come before the court in some form.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. About the Government's seeking prior restraints in the Pentagon Papers case, obviously you gave that a good deal of thought before recommending that action, or at least before you would be willing to support it. What were the kinds of things that were going on in your mind Avhen you gave that advice?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My initial reaction was that we had very little time to come to a decision.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And so what does that mean? What conclusion did that lead you to?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. If you let me go on, because I am going to do the best I can to answer your question.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes.
William H. Rehnquist
Nominee
(R)
Mr. REHXQUIST. I was frankly surprised to find the language in Near v. Minnesota, because I would not have thought that there would have been that authority for prior restraint, because I recalled the Blackstone statement to the effect that prior restraint is absolutely forbidden. But, nonetheless, having found it, I was fully convinced that the Government, in its obligation as the advocate, or Justice as the advocate for the executive branch, had every right to present the matter to a court and ask for a factual determination on this sort of thing. I do not want to leave in anyone's mind the idea that after I had looked at Near v. Minnesota, and read its language that I was in any way opposed to the Government doing what it did, presenting this issue to the court for decision.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well you speak of being the advocate for the Executive. You are also an advocate for the public interest, too, are 42 you not, in upholding the Constitution and the public's right to know? You spoke a moment ago of the importance of the public's right to know. And these issues were actually being debated in the Senate right during this period of time. I am just trying to elicit how weighty those factors were in 30111 final decision? I can see why you came down the way you did, but I am interested in how you reached that.
William H. Rehnquist
Nominee
(R)
Mr. REHNQTJIST. Well, certainly in the ordinary criminal prosecution, which this was not, the idea that the Justice Department is basically an advocate for the public is one which I have found myself unable to subscribe to. It seems to me that the obligation of the Justice Department in the ordinary criminal prosecution is to make a reasoned advocacy in behalf of the enforcement of the laws that Congress has enacted, and that those who may be brought to courts as defendants as a result of that advocacy will themselves have their own advocates. And the decision as to the propriety of the particular prosecution will be made by the courts where it was intended to be made under our system. Now, the New York Times case is certainly not a precise parallel to that, and }et 1 think that some of the same factors apply. The question was: was the potential publication here one of sufficient immediac}' and gravity so as to fall within the language of the Near case. If it was, there was certainly a good argument that the Government should prevail. There was no doubt in the world that the New York Times and Washington Post were going to have the most able advocates raising the other side of the case, and for the Government to have done nothing would be, in effect, to take the decision out of the hands of the courts and left it in the hands of the executive branch.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you see a responsibility of carrying the litigation as far as it could be carried to prevent publication, even though you might anticipate what the final outcome was going to be?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. What do you mean by "might anticipate what the final outcome was going to be"?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you believe, as a lawyer, that the decision would come down the way it finally did?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I never felt I knew enough about the facts, which 1 really knew nothing about, to make an assessment. I felt it would turn on the facts, and I did not know what the facts were.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could 1 move to another area. Mr. Rehnquist, in the May Day situation, could you tell us what your role was? Did you have a role, to start off with?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. This presents me with the same sort of problem, which I must resolve for myself, realizing that if I resolve it against answering anybody on the committee, or anybody in the Senate, is entitled to hold against me my refusal to answer. I did speak publicly on the May Day matter down in North Carolina 2 or 3 days after it and I, therefore, feel that I do owe an obligation to the committee to describe at least in a general nature my role, without necessarily, without revealing, and "revealing" probably is not the right word, describing the various internal deliberations that went on in the Department. And this is a difficult line to walk. I will try to walk it. My role, up until the time of the events that actually took place was being consulted as to the propriety of the use of the Federal troops in certain situations under the provisions of 10 U.S.C. 331 through 334. And I drafted an opinion which the Attorney General gave to the Secretary of Defense, saying that it was legally permissible to use Federal troops in order to preserve the operation of the Federal Government under the situation where a fairly large number of people had announced their intention to shut it down. And that opinion was transmitted by the Attorney General to the Secretary of Defense. I participated in two or three meetings over the weekend, immediately prior to the demonstrations, at which a good number of peple were present. I do not really think I had any significant input or contribution to make at those meetings. During the time the events were actually happening, I was in and out of the Attorney General's office. I was at a large meeting in the Criminal Division at which a number of people from the Corporation Counsel's office, the U.S. Attorney's Office, our Criminal Division, our Internal Security Division, were present. I do not believe I remained long, and since my own knowledge of the local practice of arraignment and arrest and that sort of thing is not very large, I found I had very little to contribute. There may have been more, but that is all that occurs to me now.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, at any time that how to handle the demonstrators was being discussed, did you raise any objections to the anticipated plans or programs?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. One decision reached at a meeting that I was at over the weekend, was that the permit should be revoked for the campground down at Hains Point, I believe it was. I made no objection to that decision.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, at some time during the weekend there was a decision made to suspend the constitutional rights of the demonstrators and impose martial law, or qualified martial law were the words I think you used. And I was wondering whether, at any time during the meetings which you attended, you expressed any reservation about such a suspension or the imposition of qualified martial law?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe you have misread mj statement, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. This was at Boone, N.C.?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you make a statement there defending the law enforcement actions that were taken at the May Day demonstrations?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I made a statement saying that the abandonment of the field arrest procedures and the consequent, or perhaps not necessarily consequent, delay in bringing the defendants before an arresting magistrate, or a committing magistrate, was, I thought, defensible because the requirements that a defendant be brought before a magistrate were that he be brought before the magistrate within a reasonable time, and that in my opinion a reasonable time in this situation should take into consideration the necessity of the arresting officer, having made the arrest, continuing to be in the field to prevent the occurrence of other violence. I went on to say in the statement in Boone that in a situation more serious than that which prevailed in Washington on May Day, the doctrine of qualified martial law had on occasion been invoked. I made, I thought, quite clear, not only that it had not been invoked in 69-267—71 4 44 Washington, but that it would be justified only in a more aggravated situation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU are suggesting it was not imposed on Mav Day?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I certainly am suggesting that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what doctrine was imposed on May Day? It certainly was not probable cause in terms of the arrest procedures, was it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, knowing the volume of arrests which were made, I simply would not be in a position to comment on whether any particular arrest was made with or without
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, do it in a general kind of way. You made a general endorsement of the procedures which were followed at May Day. You did that in North Carolina.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I stand by the language I used in North Carolina, and I would call it something less than a general endorsement of everything that was done on May Day.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What was done on May Day that you did not think was right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would have to know more about the facts to be satisfied that a particular thing done was not right. I did specifically say that I thought the abandonment of the field arrest forms by Chief Wilson was a legitimate and proper decision under the circumstances which he had to, I understand, confront.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What about the arresting without probable cause?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not think arresting without probable cause is ever proper, and if, in fact, it happened on May Day, I do not agree with it. I do not know enough about the facts to say that there were or were not arrests without probable cause on May Day.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the thing I am driving at, Mr. Rehnquist, is that at some time, as you described here, you were involved in the development of the procedures which were outlined for May Day. I can understand that there may have been actions which preceded the suggested procedures which were agreed on at the meetings which you attended, and that you are not prepared to comment or describe or elaborate because you do not have those particular facts. But, nonetheless, you cannot get away from the fact that of the approximately 12,000 arrested, only really a handful ever were found guilty of any charge.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is my understanding.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Which would suggest that the procedures—well, what does that suggest to you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It suggests to me that whereas there may have been probably cause for the arrest of the great number of people, the District of Columbia police were faced with such an overwhelming situation of violation of the law that they chose to try to keep the streets free, and rather than to preserve the necessary information that would enable them to later show either that there had been probable cause for an arrest, or probable cause to bind a man over.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, if there are so many people that deserve arrests, I do not see why they followed a procedure that resulted in the arrest of a lot of people who were innocent. 45
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am not satisfied that they did arrest a lot of people who were innocent.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That were just bystanders, that were just walking to work, that were just students coming out of restaurants. The newspapers were full of these instances. I do not think there were many of us in the Congress who did not have constituents that had reports of this type of occurrence. With the cases that they had, so many that were violating the law, I find it difficult to understand why they were arresting so many others that were not. And as well, thousands were ''detained" on the basis of no evidence at all. Others were called for trial and came to trial where there was not the slightest basis for trying them. There were judicial findings for refund of bonds and recall of arrest records. You could almost say, given the results of the courts' rulings, what really went wrong with the development
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. That is a rollcall.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Can he just answer this?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. That is a rollcall vote.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Could I have the question repeated? Could I have either the reporter read the question back or
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes. I was just saying that given the fact that there were thousands that were detained on the basis of no evidence at all, and these are court findings, others called for trial when there were no bases for trying them, and there were judicial orders for the refund of bonds and the recall of arrest records, I am just wondering what went wrong? Was it the development of the procedures to be followed on May Day or the execution of them?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 think one thing that happened was that the number of people who were to be involved in May Day was an overwhelmingly large number, larger than the Metropolitan Police contemplated. As a result, they were faced with a choice of either, when an individual policeman arrested a law violator, or someone he thought was a law violator, of himself taking that man to the stationhouse, booking him, and going through the usual procedures, or simply having the man taken in some other manner to the stationhouse. And the policemen then would stay on the streets to try to arrest the next bunch who were coming along. And as I understand it, they were very deliberately tr3T ing to obstruct the movement of traffic, frequently by hazardous means. I think the District police opted in favor of the latter choice, and I cannot find it in myself to fault them for it.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. The committee will stand in recess for a few minutes and will return right after a vote. (Short recess.) The CHAIRMAN. The committee will come to order, please. Senator Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. If I got your final response to the question right, Mr. Rehnquist, you indicated that you were in general support of the law enforcement activities which were undertaken during the course of May Da^'. You had expressed earlier some reservations about particular actions and were unprepared to comment on some cases, but you were in general agreement. Am I correct in that? 46
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I would not interpret my final answer that way.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would you restate it, then?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think what I said was that the Chief of the Metropolitan Police made a decision to abandon field arrest forms and run some risk of being unable to follow up on the prosecution of arrestees in the interest of keeping his forces on the street in order to preserve order, and that I could not faults him for that decision.
Senator Ted Kennedy (MA)
Senator
(D)
Senatoi KENNEDY. IS there any procedure that was used during the course of that day, related to regulations, rules, or procedures which were established within the Justice Department, that you would have disagreed with?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, the abandonment of field arrest forms, as I understand it, there was no decision taken within the Department.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. NO; that was done in the field. But, in terms of the regulations and procedures to be followed on May Day, you were involved in these decisions at the Justice Department. As I understand from what you are sa}4ng here, you did not express any reservations about them during the course of their development, nor even in the wake of how they were implemented that particular day. In hindsight, would you have done anything differently?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I was involved in some of the decisions, Senator. I suspect there were a great many that I was not involved in. It is, of course, relatively easy to look back in hindsight and say that one would have done something differently. And the one thing that occurs to me, and this is strictly a matter of hindsight, and I do not believe this was something that could have been fairty anticipated, was to supply more adequate facilities for those who were detained.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. This is the only, the only point of depaiture?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, you have made the statement that there were arrests made without probable cause simply as bystanders and people who were walking to work. If that was the case I would certainly have done that differently.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you ever come to the belief that that was the case any time prior to the point where the court was throwing these cases out?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I did not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you, in the course of those days, read the newspapers and hear about innocent people being arrested, put in the jails or the detention centers? Did you feel that there was a possibility of people being arrested without probable cause?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, certainly after newspaper accounts occurred one could not rule out that possibility.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am just trying to think back with you, Mr. Rehnquist, to that time. It appears to me that just from a general reading of the newspapers it was clear that there were hundreds of young people being detained under very trying circumstances, under very desperate conditions. I am just wondering whether you independently might have been sufficiently concerned about the possibility of false arrests or indiscriminate arrests or any of the other practices which led to the courts throwing these cases out, whether the chance 47 that a gread deal had gone wrong struck you prior to the time that the courts made these decisions?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, it certainly struck me after reading the stories in the newspapers, that if those accounts were true, people have been improperly arrested.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you feel you ought to do anything about it, as somebody who is in an important and responsible position in the Justice Department, and who has responsibility for insuring the protection of the rights of individuals? I am wondering whether this aroused you so much that you felt that maybe you would walk down the corridor, so to speak, and speak to the Attorney General, and say: "If this is what is happening, Mr. Attorney General, I think we ought to do thus and so; we should not wait for the courts? "
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. By the time the newspaper accounts occurred, I think whatever had happened had happened and the Corporation Counsel and United State's Attorney's Office, as I understand it, were already engaged in a screening process. I did not do anything. 1 did not feel there was anything that would be appropriate for me to do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, again, it was 2 days after the demonstrations you were down in North Carolina, I think, and one would have to say from your speech you were endorsing or supporting the May Day procedures. Was that a time when the Attorney General was suggesting that these procedures ought to be duplicated in cities all over the country? And this was 2 days afterwards, and it seems to be (hiring that period of time it became eloquently apparent to many in the House and the Senate that there were many travesties of justice. Certainly that opinion w T as supported almost unanimously by the various court decisions that ruled on those cases. And I am just interested whether, when it became apparent to you that there had been an entrenching on basic rights
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My statement in North Carolina, Senator, as I recall it, and as I see it, glancing through it, dealt with the abandonment of field-arrest forms, and the concept of a reasonable time in which to take a person before a committing magistrate. It did not purport to sweepingly endorse everything that had been done during the May Day demonstrations. As to what I may have done on m}7 own, my own initiative, after becoming aware, I have already answered that I did nothing, and I did not think it was appropriate to do anything.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU would not deny that your statement down in North Carolina was a general endorsement of the steps that were taken by
William H. Rehnquist
Nominee
(R)
REHNQUIST. I have it in front of me, if you want me to read over a few pages and answer your question, I will do it or I will give 3'ou my recollection.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, why don't you give us your recollections?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not concede it to be a general endorsement.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, at any time did you express any dismay, either privately or publicly, about the procedures which were followed? You had a situation where you had about 12,000 arrests, practically all but a handful thrown out for a variety of different reasons, and I am just interested in whether you 48
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am sure that I made a comment, Senator, to someone at some time that if these newspaper stories were true, certainly they arrested some people they should not have.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But you did not—this was in a private conversation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I can remember my own reaction to the newspaper stories, thinking that there are always two sides to a case, and I would want to hear the other side before making a decision, but at the same time, feeling if this was true it was wrong.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. With the benefit of hindsight, would you change anything now if you were to have a massive demonstration? Would you urge different procedures to be followed in cities, or would you agree with the Attorney General that the procedures which were followed ought to be the model for other cities?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am not sufficiently close to the actual operations in the field to have the necessary information to make a judgment as to whether particular procedures should be changed. As to the overall impression of the thing, the fact that there was not a serious injury, no loss of life, and that the Federal Capital was kept open, I think was a rather significant accomplishment. Now, if it could have been done without arresting anyone who should not have been arrested, if that did, indeed, happen, then it would be better to do it that way. Whether there is some system that could be devised with some several thousand individual policemen to insure that no one would ever be arrested without probable cause, I simply do not know.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Of course, the Constitution is rather clear on that, is it not, about arresting without probable cause, as the Supreme Court decisions have construed it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, yes, that there must be probable cause to arrest.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, does it not distress you when there is an arrest without it, then?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could we move just into an area which was mentioned this morning by the Senator from Michigan, Senator Hart—wiretapping. Would you tell me what role, if any, you had in the Justice Department in the development of wiretapping policies?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I face the same decision here.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Tell me, what is the decision really? Is it that you are—is it the attorney-client relationship? Are you here under executive privilege?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; it is attorney-client relationship.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Does that apply within any executive agency? Maybe you could tell me a little bit about that. I thought that your client was the public as well; is it not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My client, in my position as the Assistant Attorney General for the Office of Legal Counsel, is the Attorney General, and the President, and applying—-—
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Where does that put the rest of the Constitution?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, that puts the rest of the Consitution in the position of having someone advising them as to what his interpre- 49 tation of the Constitution is. Presumably, each of them, being very busy men, they need to get that advice from somewhere, and they get it from me and they get it from other sources, also. But, the traditional role of the attorney-client privilege is that the attorney does not disclose advice given to his client and not otherwise made public. In the wiretapping situation, the Government has filed a brief in the Supreme Court of the United States, which is a matter of public record, and I would be happy to comment on my rather limited role in the preparation of that brief.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It was drafted in the Internal Security Division, and at the request of the Attorney General we were asked to work with the Internal Security Division in preparing the draft and revising it. We did that. It was then submitted to the Solicitor General in the usual course of events, and was finally filed after having been revised by him in the Supreme Court of the United States.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO }TOU think if this issue or question were to come to the Supreme Court you would feel obligated to disqualify yourself?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that disqualification is a judicial act, Senator, just as one's vote to affirm or reverse a particular decision would be a judicial act and, therefore, I think it would be improper for me to express any opinion as to how I would act in a particular case. I think I mentioned to you when I was in your office the other day, and I now state publicly, that the memorandum prepared by the Office of Legal Counsel for Justice White, at the time he went to the court, strikes me as being a sound legal analysis of the basis on which one should disqualify himself. At least the thrust of that brief is personal participation in litigation
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What about advising? Does the brief cover the question of advising or counseling?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think advising as to particular litigation it does cover.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What about pohVy; what about advising with respect to a policj^?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 'MJ recollection is that it does not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what rule will you use in those areas?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that is a good deal more difficult question, Senator, and I think that I would have to say that I would do the best with the materials and precedents available to me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could you give us any insights as to what will be the various considerations, or how you will decide that, what factors there will be?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The factors will be the applicable disqualifications statutes which I recall are 28 U.S.C. 455, the factors set forth in that statute, and to the extent that the canons of judicial ethics would not be inconsistent with statute, the canons of judicial ethics.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, in the wiretapping case, then, you could not tell us whether you would at this time?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I obviously ought not to say that I will disqualify myself in the wiretapping case. I can say that in my opinion I person- 50 ally participated in an advisory capacit}' in the preparation of that brief, and I will attempt to apply the standards, as I understand them, to that decision.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would that not fall within the purview of the White memorandum?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, you are asking me as to a particular decision that I will make after I get on the court. I have said enough on that, I think, and you can draw }T our own conclusions.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could you tell me, you have made a statement about the number of wiretaps, have you not, publicly made some statements or comments?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am sure I have.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU have indicated that the charges of pervasive wiretapping are exaggerated?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Can you tell us the basis for this conclusion?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU mean how I got the numbers of——
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes; how you came to that conclusion.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, given the numbers, which I do not recall, but it seems to me it was something in the neighborhood of between 100 and 200, and the fact that there are 200 million citizens in the country, and presumably millions and millions of phones, I felt justified in saying that any number between 100 and 200 could not possibly be said to be pervasive.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. NOW, as I understand, those were taps pursuant to warrants based on probable cause; is that correct?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is my understanding under the Omnibus Crime and Safe Streets Act of 1968.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. They are limited in time and they must be disclosed to the person snooped on; is that right? They must be reported to the Congress and can 011I3' be used in limited circumstances?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; as set forth in the statute.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. WT hat about the taps and bugs installed on the Attorney General's own initiative without court order? What could you tell us about that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I can tell you nothing from personal knowledge.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Were they included in your characterization that the number of wiretappings was exaggerated? Did you include in your evaluation the taps and bugs installed without court order?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am not sure whether I did or not. As I recall the latter number is somewhere between 30 and 40, so that whether or not I included it it would not change nry conclusion as to pervasiveness.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What is 30 or 40; what does that number mean?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That means that at a particular time there were 30 to 40, and I simply do not recall the figure, and I am trying to get it out of my memory generally, of this type of wiretap used.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My understanding is that there are three times as many days of Federal tapping or bugging without court orders as there are days of tapping and bugging with court approval. That is based on communications I have had with the Attorney General. Does this sound inconsistent with your understanding of the amount of either wiretapping or bugging? 51
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My understanding is not sufficiently great factually to be able to answer that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could }r ou tell us a little bit about what your reaction is to taps and bugs and when they ought to be put on?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think it would be inappropriate for me to do so, Senator. I have acted as a spokesman and advocate in preparing a brief for the Government, and I think it would be inappropriate for me to express a personal view.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what about the official view of the Department?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS to when a wiretap ought to be used?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes; without a court order.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. In cases contained in the reservation of the act of 1968, as defined in the statutory language.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What about internal securitj7 and domestic, not foreign, but domestic, national security cases? Would you give us any insight as to how much is foreign, how much is domestic?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I simply do not know. I do not have any part in the operational end of it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And are you unwilling to give us any kind of a feeling about }^our owTn concern over the use of wiretapping or bugging or snooping?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think, having acted as an advocate and spokesman for the Department it would be inappropriate for me to give a personal view.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU would not tell about just your own concern about this as an invasion of privacy, and the concern that we have to have in our society, in terms of protecting individual rights and liberties? You are not prepared even to make general comments about this?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I can make a general comment.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, will you? I am looking again for the kind of concern you have for the protection of rights and liberties.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think my comment must be sufficiently general that it is not going to satisfy you. It is, having indicated in my London speech, it is not an appealing t}-pe of thing, and it is justified only by exigent circumstances.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you have, as you say, been willing to talk about it in London, and we are interested to hear }TOU talk about it here today.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I was acting as a spokesman for the Department in London, and I have acted as a spokesman for the Department in other instances and in the preparation of the brief, and for that reason I do not think I should give my personal views.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Why? Because you feel that you are—wh\ is that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not think that one who has been an advocate, in a particular matter, particularly when it is under submission to the courts, is at all entitled to express a personal view.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But are we supposed to assume that your comments in London were just the Department's position and they did not present your views; they were not your views?
William H. Rehnquist
Nominee
(R)
Air. REHNQUIST. I was aksed to appear as the hard-line type because, you know, they had four people on the forum
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you often get asked to appear as a hard-line type? [Laughter.]
Senator James Eastland (MS)
Chairman
(D)
The Chairman. Let us have order.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Everybody from the Justice Department does, I think. And you know, they do not want some either/or type of presentation. They want a justification of the Department position, and that is what I attempted to give them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think if you had had concerns about wiretapping, the pervasive use of wiretapping, that they would not have sent you to London?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I will say this much, Senator, that certainly if I had felt from an advocate's point of view that the Department's position was indefensible, or personally obnoxious to me, I would have resigned.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me go to a couple of final areas, Mr. Rehnquist. In the civil rights area, as I understand, in February 1970, you wrote a letter to the Washington Post about the Carsweli case?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I did.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In it you suggested that those who disagreed with Judge Carswell's opinions in civil rights cases, and thought them to be anti-Negro, and anticivil rights, were missing the message of those cases, and you argued that the truth was that anyone that you called a constitutional conservative, or judicial conservative, would have reached the same judgment as Judge Carsweli solely on judicial philosophy without racial animus.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU are characterizing my letter, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, could you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not have it in front of me. I am sure the text is available to everybody.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I will ask that the whole letter be put in the record, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. It will be admitted. (The letter referred to follows.)
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I do not know whether you can read either parts of it, or whether you want to take a look at it? 54
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I will try and answer any question about it. I do have some resistance about accepting a characterizing
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I think that is fair enough. Well, how would .you characterize it? Let me ask you that, then, how would you characterize }r oiir letter in reply to the editorials on the Cars well nomination?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. TO the extent I recall the letter—I certainly recall the substance of it—it was basically an argument that those who attacked Judge Carswell's civil rights record were at least in part in error and that in addition, although the attack on his civil rights record might demand a good deal of popular support, the idea that it was solely a question of civil rights, and not also a question of other constitutional doctrines being involved, was a matter that should be more fairly presented.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it seems to me that it was somewhat stronger than that. Using your own words, 3TOU say— Your editorial clearly implies that to the extent the judge falls short of your civil rights standards, he does so because of an anti-Negro, anti-civil rights animus rather than because of a judicial philosophy which consistently applied would reach a conservative result both in civil rights cases and in other areas of the law. I do not believe that this implication is borne out. And you say the—• Extent to which his judicial decisions in civil rights cases fail to measure up to the standards of The Post are traceable to an over-all constitutional conservatism, rather than to any animus directed only at civil rights cases or civil rights litigants. It seems to me that you are suggesting that Carswell reached those on the basis of a conservative judicial philosophy. Is that not fair enough?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think the letter has to speak for itself, Senator. I certainly wrote it as an advocate. I think it is a very defensible piece of advocacy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, is it not fair for us to draw the conclusion that you at least expressed the feeling in this letter that he reached those decisions based upon a conservative judicial philosophy? Can you see where we would reach that conclusion, or are we unfair in reaching it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The letter is there; it is a matter of record. I wrote it. I think anyone is entitled to draw what fair inferences he feels can be made from it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I am asking whether }T ou think that, lading this out in the open, it would be unfair to draw that conclusion?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is a matter of reasoned individual judgment.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Going back to the statement that the President made about the appointment, Mr. Rehnquist, what do you think troubles the President, and why do you think that the President makes the statement about comparing the peace forces and the criminal forces and says that he believes, and I think that I am stating it reasonably accurately, that the public interests have to be better protected than they have in the past, and it is important that he nominate to the Court, as he pledged he would during the last campaign, someone whose judicial philosophy is close to his own? Why do you think the President believes that your appointment there will move the Court closer to the peace forces and away from the accused? 55
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think it would be inappropriate for me to comment on what the President's thought processes were, if I knew them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I suppose he says he believes your judicial philosophy is that you are a judicial conservative, is what it gets down to. Do you feel so?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, if by judicial conservative is meant one who will attempt to •
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. What do you think he meant by that?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Wait a minute. Let him answer the question.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I simply cannot speak for him, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. WT ell, how do you—why do you not speak for yourself then? Do you think you are a judicial conservative?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, let me tell what I think 1 am, and then you decide whether I am a judicial conservative or not. My notion would be that one attempts to ascertain a constitutional meaning much as suggested by Senator McClellan's questions earlier, by the use of the language used by the framers, the historical materials available, and the precedents which other Justices of the Supreme Court have decided in cases involving a particular provision.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. If you think that the Court has made, or if we were to believe that the Court in recent times made, extremely important and landmark decisions for the preservation of basic rights and liberties, and that it is the intention, for whatever reason, that the President wants to change that, what can you tell us? What assurances can you tell us that you are not going to, or can you tell us that you are not going to move back on what I would consider the march of progress during the period of the Warren Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Could you be any more specific?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you have made comments, for example, about the Miranda case, have you not, expressing some concerns about that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think the comment I made, if you are referring to my University of Arizona speech, was in the Justice Department, like any other litigant, they had a perfect right to request the Court to review, and if it found it appropriate, overrule a precedent.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, could you say in a general way you have reservations about the decisions that were made by the Warren Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Let me try.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. All right.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. TO the extent that I believe it proper, and it is a very unenviable task for a nominee, I am sure you realize, to the extent that a decision is not only unanimous at the time it is handed down, but has been repeatedly reaffirmed by a changing group of judges, such as Brown v. Board of Education, it seems to me there is no question but what that is the law of the land, that the one wa}r you try to arrive at the meaning of the Constitution is to try to see what the nine other Justices who took the oath of office thought it meant at the time they were faced with the question. On the other hand, to the extent that a precedent is not that authoritative in the sense of having stood for a shorter period of time, or having been handed down by a sharply divided court, then it is of less weight as a precedent. 56 That is not to say that there is not a presumption in favor of precedent In every instance. I do not feel I can say moie without commenting on matters that actually might come before the Court.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, how about the landmark types of decisions? I am thinking of the right to counsel, for example. Could you talk about that, or about the apportionment cases which held there must be one-man, one-vote?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I feel I have got to restrain myself. I have gone' as far as it seems to me a nominee ought to in indicating the way I conceive precedent to be applicable. I think anything——
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. HOW important do you feel it is for an indigent to have an attorney?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think it is very important.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you have any reservation about people's votes being counted equally whether they live in a city or live in rural areas in terms of popular representation? Does that bother you at all?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, no; phrased the way you do, it certainly does not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could it be phrased otherwise so that it would?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, the idea that people's vote should be counted equally strikes me as something that virtually everyone in the room should agree to. But if you are putting it in a context of a particular fact question that might come before the Supreme Court—-—-
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. NO; that is all right. The question of blacks being able to ride in public accommodations or being able to eat in public accommoidations, do you have any troubles with this?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have done my best to indicate the use of precedent, and I simply fear that if one gets into particular issues, he is taking the position that is very inappropriate for a nominee.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you ver}T much, Mr. Rehnquist.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Bayh.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I would like to reserve some time.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Air. Rehnquist, Senator Fannin, I must say I admire the way in which you have borne up under this questioning session, and I want to join my colleagues in congratulating you for having the confidence of the President in such a tremendous way as to be nominated to the highest court in the land, and I hope that during these hearings that those of us who have expressed a doubt or two, as I have, will have those doubts laid to rest. I stated on the 15th of October that I thought there should be three general criteria followed. In my own personal judgment, a nominee should have distinguished legal ability, unimpeachable persona] integrity, and had demonstrated commitment to fundamental human rights; and in pursuit of this criteria, I will pose a series of questions, some of which very frankly will be just for a matter of clarification. Your colleague, Deputy Attorney General Kleindienst, submitted some biographical data as well as some financial data, and looking at some of it, it is difficult to put it in proper order. So, let me just basically run through this. You were born in October 1924 in Milwaukee. Went to high school in Milwaukee. Is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, it is, Senator. 57
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU then entered the Air Force directly from high school in Milwaukee?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I went on to Kenyon College in Gambier, Ohio, for one quarter, at which time I turned 18, and then I entered the Army Air Force.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. High school in Milwaukee, Kenyon College, and then into the Air Force?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU went to Stanford after you got out of the Air Force and graduated in 1968. You entered directly after military service. Is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; I graduate in 1948.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. 1948. I am sorry. And, then, as I put it together, you received a master's degree in 1950 from Harvard in government?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. And then got an LL.B. from Stanford and was first in your class in 1952; is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is correct.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I want to compliment you for that academic record and for your military service to your country. We have had a considerable amount of discussion before this committee relative to the whole business of ethics, and I think you certainly understand, as one who has been a member of the bar for as long as you have—and, of course, there is general acceptance as to your expertise as an attorney—but one nominated to the Supreme Court not only has an important responsibility as far as his own ethical conduct is concerned but he is called upon from time to time to rule on various cases that will set the standard for the entiie judiciary throughout the country. With this in mind, let me look at some of the information in Mr. Kleindienst's letter and ask you to answer some specific questions that have been asked of a number of nominees or prospective nominees that have come before the committee. After your Supreme Court clerkship, you practiced law in Phoenix for 16 years; is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; it is.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. NOW, let me ask some rather basic, perhaps mundane, questions relative to the three principal clients that Mr. Kleindienst listed that were the bulk of your law practice. Would you have any objection to submitting to the committee a full list of the clients you may have represented over the past few years, or would that be
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It might be somewhat difficult to compile. I am sure it could be done.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I notice that Mr. Powell has submitted a rather lengthy list. I do not know whether it would be possible but I would appreciate it. In the letter, as to the three principal clients, the first listed was a company named Sherrill & Follick which Mr. Kleindienst described as a partnership engaged in farming and land development throughout the State of Arizona. Could you tell me, did you represent this corporation and when did you begin to represent this company, and do. you know how long you represented them? 58
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It was a partnership, not a corporation, and I began representing it, I believe, in about 1960 or 1961.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Could you describe very briefly the kind of activity which this client engaged in, in some sufficient detail?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. They had a feed-lot operation and a cattle feeding operation. They had been growing cotton, but, as I recall, were getting out of it by the time I came to represent them, and they had purchased a fair amount of land along the Colorado River, which was my principal association with them, the litigation arising out of that purchase.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. The acquisition of land and this tj^pe of activity, this was the relationship?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Lease, the acquisition of land; then, the lawsuit to determine title to the land, though I am sure I may have represented them on occasional land acquisitions.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. The second principal client listed in the letter from Mr. Kleindienst was Transameiica Title Insurance Co. Is that a subsidiary of the Transamerica Corp., the larger, international one?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; I believe it is, Senator. When I first began representing them it was a locally owned company but still,, between that time and the time I left Phoenix, it was acquired by Transamerica.
Senator Birch Bayh (IN)
Senator
(D)
Seiiatoi BAYH. What was the name of the locally owned company?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Phoenix Title & Trust.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, can you describe the natuie of the business that this client was involved in?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, my lepresentation of them was in litigation which they got into as the result of acting as escrow agent or trustee under a subdivision trust. Their business, as such, was to act as escrow agent am1 trustee in very large volume land transactions that occurred in the State of Arizona.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Did you represent them in acquiring any of this land or disposing of it? Now are we talking about Phoenix Title, or the client that was listed here, Transamerica Title Insurance Co., or did you represent both?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not think there was much change in the local entity's activities as the result of its acquisition by Transamerica. It may have grown some. It could. At least, so far as I know, it was not itself engaged in the acquisition of land. Ft acted as escrow agent in a situation where a buyer and seller had an agreement to sell and buy land and wished to place the agreement in escrow. Phoneix Title would act as escrow agent and also acted as subdivision trustee, which is a phenomena that is not generally found in the rest of the country but which is designed to enable a neutral title holder to facilitate the subdivision of lands which are in the process of being sold by a seller to a buyer.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, I want to make sure that I do not misunderstand you. You did serve as attorney for Transamerica Title and Insurance Co., and prior to that time you represented Phoenix, you represented both? Can you give us a time frame on that, please, approximately?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I was a retained attorney for specific matters in litigation, first for Phoenix Title and Trust Co., which was a locally owned company, and, then, after that company Mas acquired by 59 Transamerica Title and Insurance Co., for the local entity which was tiien a subsidiary of Tnmsamerica.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Could you give us a little bit more detail of the types of individual duties that you performed?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Defendant and litigation. You know, 1 can give you a description of perhaps the last piece of litigation I represented them on.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. We are just trying to get a general idea of the type of business they did, and thus the type of business that you had. Now, the third principal client listed is the Arizona State Highway Department, which Mr. Kliendienst's letter indicates you served as a special counsel in termination cases, in cases involving claimed liability for defective maintenance of highways. Can you give us sort of the same capsule rundown? When did you start rep-resenting them? Generally, what kind of cases were involved?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 believe I began representing them in 1963. Perhaps, it was 1962, and my principal representation was of the highway department, as a condeniner of lands necessary for the construction of highways. L was retained by them in at least one instance to defend them against the charge of improper maintenance and construction of a highway where a personal injury and death bad resulted from a collision on the highway, State highway.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Thank you. Additional data was provided in Mr. Ivleindienst's letter, and let me ju>>t quickly ask, without going into detail: You are familiar with the information relative to the assets of you and your wife?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe I am, yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Does that contain an entire listing of the assets that you possess?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. TO the best of my knowledge, yes. It is general and it is approximate, but I think it presents an unfortunately fair position of my financial position.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let us gather together in misery. You hold no additional assets in any other trusts or blind trusts that would not be listed in public records because of the unique characteristic's of Arizona law; is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me, if I may, pursue your general thinking in the whole area of ethical standards and disqualifications. I am not concerned just with your standards but the standards that you might feel compelled to apply in the judiciary. I know that you cannot speak about individual cases. I know of none, and I think you share my concern that we must make certain we put our best foot forward as far as those that represent the judiciary not only on the Supreme Court but all all levels. A while ago we were discussing the Havnesworth matter as far as ethics were concerned. I do not want to get into a lengthy rehasing of that affair, but I do want to try to get from that and from your participation in it, if possible, your general feeling on what you, as a Justice, would demand of the judicial system as far as ethical standards are concerned. In the letter that you sent—and, in fact, you sent two letters, as I recall, one on September 5 to Senator Hruska and one on September 19 to the chairman (Ji*-267—71 5 60
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Those are 1969 letters?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Yes. You had this to say—I have the whole letter here, but I have taken thse two specific quotes: The clearest case is one in which the judge is a party to the lawsuit. Clearly, he may not sit in such a case. Little different is the case in which the judge owns a significant amount of stock in a corporation which is a party to the lawsuit before him. He too must remove himself. These paragraphs do not follow, but they deal with the two different kinds of questions, and, so, they are both directly quoted. One question is presented when a judge holds stock in a corporation which is a party to a litigation before him. A quite different question is posed when the judge merely owns stock in a corporation which does business with a party to litigation before him. Could you give us your opinion of the responsibility of the judge to remove himself from the case in which he owns stock in the corporation, in the corporate body?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. DO 3"OU want my present opinion?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Yes, please, and if it differs from the assessment you made in the Haynesworth case I certainly would be glad to have that also. I am more concerned about what you believe now than what you } have believed 2 years ago.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I am inclined to agree with the comment that Judge Blackmun made during his confirmation hearings to the effect that judges generally, after the Senate's denial of confirmation to Judge Haynsworth, had become more sensitive and perhaps more astute to disqualify themselves than they had previously. So that my own inclination would be, applying the standards laid down by 28 U.S.C. 455, and to the extent there is no conflict between them and the canons of judicial ethics, to try to follow that sort of stricter standards that 1 think the Senate, by its vote, indicated should prevail.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU feel then that a judge who owns stock in a corporate party should disqualify himself from sitting on that case?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is a difficult question for me, Senator, because certainly a literal reading of 28 U.S.C. 455 does not, as I recall the statute, seem to require that.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. It talks about substantial interests which is subject to some interpretation.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. A substantial interest in the case, not in the party. Yet there is no question that the arguments were made in the minority report of the Senate committee, and on the floor, that were persuasive to many Senators that the canons of the ABA and the strict interpretation of those canons which says that a judge disqualifies himself if he owns stock in a case should be followed. I do not think it would be appropriate for me to simply say right now that I would or would not disqualify myself if I had a share of stock, since I think that is a judicial decision. I think that I can fairly sa,j that I am sensitive, as Judge Blackmun indicated he was, to the closer and perhaps stricter view of disqualification that has prevailed since the Haynsworth decision.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, I appreciate the difficulty in a specific instance, but, very frankly, I think that question can be answered either Yes or "No" and that you have not done either, with all respect. 61
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU think I should answer a question as to whether I would disqualify myself, if confirmed, if I owned a share of stock in a corporation?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, you know, I do not
Senator Marlow Cook (KY)
Senator
(R)
Senator COOK. It is not within the framework.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. YOU are having as much difficulty as the witness is.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, that is accurate, because I am not, frankly, as concerned about you, yourself, as about the fact that you may be presented with a case where another judge has faced the same situation, and thus in determining that case you will determine what the entire law is.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. But I think it would be singularly inappropriate, Senator, just because of that factor, for me now to try and announce to you how I will rule on that case. I have said I think there is an increased sensitivity, increased strictness, in the views of the disqualification statutes, and I think it would be inappropriate for me to say flatly what rule of law I would propose to apply if I were confirmed.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, I think we have some guidance as to what the law is now in addition to what Justice Blackmun said—and I salute him for what he said—but I will not push you further if you do not care to go further, because I see no need. But in your advice to us in the 12-page memorandum you are suggesting in the strongest terms, citing a number of jurisdictions to support your position, that Judge Haynsworth had not violated the generally accepted position of the ethical standards in this country. For some reason or other, in the 12 pages you omitted reference to Supreme Court law on the case, a Supreme Court case, decided a year before, on November 18, 1968, Commonwealth Coatings Corp. v. Continental Casualty Co. In that case—and I think it was Justice Black who wrote that decision—he went into some detail. He set a very strict standard. This was not the first time it had been set, and the Senate looked into the question, and brought into it the Commonwealth Coating case and the canon of judicial ethics which talks about appearance of propriety or impropriety. Without proceeding too much further on this, would you care to suggest why you did not give us the benefit of the Supreme Court law, or if, in your consideration, you would also consider the interpretation of the case of Commonwealth Coating in which the appearance of impropriety is as important as impropriety?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes. I have no hesitancy in doing that. Since you are basically examining my professional qualifications as an advocate, we did not give to the committee that case because we did not find it.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU did not find the Supreme Court case that had been cited the year before in the Justice Department?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; we did not. We ran it down under the key note system, under "Disqualification," as I recall. Partly it was staff; partly, I remember going through these volumes, myself, and as I recall, the Commonwealth Coating simply did not show up. Now, obviously, one can be faulted for less than complete coverage in the cases on that point. I admit that, had I found the Commonwealth Coating at the time I wrote the letter, I certainly would have felt obligated to comment on it. I would not have felt that it changed the result which I reached in the letter. 62
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Oh, you would not have?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I do not believe I would have.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, 1 am sorry that you would not have, that it would not have changed the opinion. Everyone is entitled to his own view, but I think the case is very clear and that Justice Black, for the Court, deals rather harshly or strictly with substantial interests, and brings in the appearance of impropriety in a way that was not suggested in the memorandum.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, as suggested, Senator Bayh, Mr. Frank, in his testimony before the committee, I think he also was of the view that that case was not controlling. It was basically dealing with an arbitration case and a somewhat different factual situation.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. But, if you will recall, what Justice Black said was— and I will read it here— An issue in this case is the question of whether elementary requirements of impartiality taken for granted in every judicial proceeding should also be taken for granted in arbitration cases. So, the Court here seems to give us the impression, the very strong impression, that this is taken for granted in a judicial case such as that you were addressing yourself to. But let us not proceed further on that. You do feel very strongly that a stricter interpretation should be put on substantial interest than you might have thought?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, I do.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. The third point that T mentioned earlier the basic commitment to human rights, in addressing ourselves to the criteria for a Supreme Court nominee, T suggested that no person should be put on the Court whose views are inconsistent with securing equality, equal rights, an opportunity for all, regardless of race, religion, creed, national origin, or sex, and equally important are the fundamental liberties of the Bill of Rights. Thus, a nominee should have a record that would show he is committed bo preserving the basic individual freedoms. I want to address myself to some of these questions very quickly, if I may, because I think it is extreme!}" important today when there are a number of people who suggest there is no way of working within the system, that those of us who are in this, both in the Congress and who ultimately reach the highest echelons of the judiciary, show that we have faith in the system working. What in your past background, if you could give us just a thumbnail sketch, demonstrates a commitment to equal rights for all and basic human rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is difficult to answer that question, Senator. I have participated in the political process in Arizona. I have represented indigent defendants in the Federal and State courts in Arizona. I have been a member of the County Legal Aid Society Board at a time when it was very difficult to get this sort of funding that they are getting today. I have represented indigents in civil rights actions. 1 realize that that is not, perhaps, a very impressive list. It is all that comes to mind now.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Would 37 ou give us a similar rundown on your background that would show a commitment to the fundamental freedom of the Bill of Rights? That is a matter that has been brought 63 up by at least two of my colleagues and is a matter of grave concern to me as I told you the other afternoon when we met.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, can you give me some example of what you have in mind?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Yes. Let me, if I may, deal with some of the specific questions. The reasons 1 asked the broader question is that you, with all respect, when you had been asked a more specific question, have given a broader answer, and I thought I would approach it from the other way. You see, I am deeply concerned, and 1 do not want to be overly dramatic about this, but I am concerned that there are a number of people today that feel that the only way we can solve national problems is by shortcutting individual rights or individual freedoms, individual human rights, that we have got a lot of complicated problems that can be solved by ready answers, simple solutions, and I just do not think it works that way. It just seems to me that we have to, if we are going to preserve our institutions and a free society, say that there is an alternative, another alternative, between a police state or handcuffing individuals and taking away their individual rights on the one hand and an increase in crime on the other. That is why I address myself to this. Let me deal more in specifics. Let us look at some of the specifics of the Bill of Rights, for example, the fourth amendment and related issues of privacy. In your judgment, what do you feel is the purpose of the fourth amendment in our judicial system, in our Constitution?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. TO protect individuals and their homes against unreasonable searches and seizures.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYII. The arbitrary action of governmental officials, I suppose?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That might be another way of putting it.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. NOW this is the protection we are talking about at the so-called top of the spectrum, where you may well be sitting on the Supreme Court and we are sitting in the U.S. Senate, and this protection is also to be provided at the lowest level, at the local level and at all levels of Government, and the fourth amendment protections are designed to apply, is that not accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. [ think the Supreme Court has held that the fourth amendment applies to State and local governments as well as to the Federal Government.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. The FBI and local police as AVCII? How do you envision these fourth amendment rights being protected under the Constitution? You see, you have had some questions about wiretapping, and eavesdropping, and f suppose we create under the interpretation that that is a fourth amendment situation; is it not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; T believe it is. Do you want me to answer?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, if you care to. The question is: How do you reconcile—where does the fourth amendment fit where you happen to have the local polk e chief or the FBI or the President on one hand feel that wires should be tapped and a room should be bugged and, on the other hand, the rights of an individual citizen protected under the fourth amendment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think a good example of a line that has been drawn by Congress is the act of 196S, which outlawed all private 64 wiretapping and which required, except in national security situations, prior authorization from a court before wires could be tapped. Now, it strikes me that both of those are protection of the citizen in his home.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. And you feel that the imposition of a neutral judge between these two competing rights sometimes is a good buffer, is a good way to guarantee this fourth amendment right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me ask you, if I may, to get your specific relationship into this inasmuch as you asked me to be more specific. Senator Kennedy asked some of these questions, and Senator Hart asked at least one, and you felt, as I recall, that you were unable to answer, because of various relationships, or not being willing, not feeling that you should prejudge any case. Let me use a little different approach, if I may, and see if we can get a specific answer. On March 11 of this year, the Providence Journal reported that you were questioned at Brown University about the Justice Department's—and I quote: Practice of not obtaining judicial permission before installing wiretaps in cases of national security. The newspaper went on to say that you replied—and here, again, I quote the newspaper: In these cases, the Department must protect against foreign intelligence or subversive domestic elements. It often does not have the evidence of imminent criminal activity necessary for wiretapping authorization. Is that a correct quotation of your response at Brown? Is that still your opinion? Was it then?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have no idea whether it was a correct quotation. I can certainly remember in substance defending the administration's position on national security wiretapping, which has since been embodied in a brief in the Supreme Court of the United States. I cannot, at this time, recall the words I used.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, does this reflect your views?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS I said to Senator Kennedy, Senator Bayh, I think it inappropriate in a case in which I have appeared as an advocate to now give personal views.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. With all due respect, do you have—is there any legal precedent for saying that you have an obligation to the Justice Department when you are queried on your opinion at Brown University? It is hardly the client-lawyer relationship, is it, Mr. Rehnquist?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The format of the college visits which I participated in, 10 or 12 last year, was very simple: Come and defend the Justice Department to the college students. They certainly would regard it as a lawyer-client relationship.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I find this a rather difficult position for me to be in, and in which I frankly would like to give you the benefit of the doubt. From your mouth have come a number of statements that concern me very much, about whether the Government is going to be given carte blanche authority to bug and to wiretap, and yet there is no way I can find William Rehnquist's opinion about that. 65
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I doubt that you can find any statement, Senator, in which I have suggested that the Government should be given carte blanche authority to bug or wiretap. I recently made a statement at a forum in the New School for Social Research up in New York, attended by Mr. Mear of the Civil Liberties Union and Mr. Katzenbach, that I thought the Government had every reason to be satisfied with the limitations in the Omnibus Crime Act of 1968.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Of course there were certain areas that were not dealt with in the Omnibus Crime Act of 1968, the whole thorny thicket of national security was not dealt with?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, it was dealt with to the extent that Congress made it clear that the limitations being imposed by that act were not to be carried over into that type of case.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. But you do feel this gave the President rights that he did not have before?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that is a fairly debatable legal question.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. What do you feel about it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think, again, having participated in the preparation of the Government's brief—the Government's brief which is on file in the Supreme Court of the United States—I think it w T ould be inappropriate for me to give a personal opinion.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Can we find something a little more basic that may not involve a specific case? Do you feel that there is some standard that should be present before the Government gets involved in bugging activities? For example, the standard of probable cause? Can the Government go out here on a fishing expedition and promiscuously bug telephones because the President, himself, seems to feel it meets a certain criteria; or should it meet the probable cause test that is not foreign to our system of jursprudence?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think the answer to the first part of your question is so clear that I should have no hesitancy in giving it, that, certainly, the Government cannot simply go out on a fishing expedition, promiscuously bugging people's phones. As to whether a standard of probable cause, in the sense of probable cause to arrest, in the sense of probable cause laid down by the Omnibus Crime Act of 1968, or probable cause to obtain a search warrant for tangible evidence, it seems to me those are the sort of questions that may well be before the Court, and I ought not to respond.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. A moment or so ago, we, I think, reached some agreement that the fourth amendment rights can be protected by interposing between the Government and the individual a neutral party, a neutral magistrate. Can you tell us why this should not be the case, in your judgment, as far as the national security is concerned? Would you care to make a distinction between the foreign intelliinsurgent? Do you make a distinction in your own mind on these two?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I can tell you the position which the Government has taken and which I believe is a reasonably well done job of advocacy, and that is that given the facts, five preceding administrations have all taken the position that national security type of surveillance is permissible, that one Justice of the Supreme Court has expressed the view that the power does exist, two have expressed 66 the view that it does not exist, one has expressed the view that itdoes not exist, one has expressed the view that it is an open question, that Government is entirely justified in presenting the matter to the Court for its determination.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. DO VOU not care to offer a personal opinion on it, then?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. T think it would be inappropriate.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. All right. I do not know whether j^ou are aware or not—I suppose you are—of the ABA standards relating to electronic surveillance, in the tentative draft of June 1968, which says that they feel a distinction should be made in the President's right to tap wires when international agents are involved on the one hand and domestic insurgents are involved on the other. Do you care to commnet on that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think the Department has taken the position that this is a distinction that is virtually impossible to make. Their position is taken on the basis of operational divisions with the knowledge of which I am not familiar, but I do not think it would be appropriate for me to make a personal observation.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me broaden the question a bit to include not only bugging, which is the more traditional fourth amendment area, but also the right to privacy, which, as the Griswold v. Connecticut case held, is the product of several sources, the fourth, the first, the fifth, and ninth, and maybe the 14th amendments. Let me here again go to some of your testimony before the subcommittee of this committee where you said, in response to a question by Senator Ervin at the hearing on the investigative authority of the executive, that you saw no constitutional problem in Government surveillance of persons exercising their first amendment rights to assemble peacefully to petition the Government for redress of a grievance. Is this an accurate statement of your views?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. With the qualification that the surveillance ought to be in the interest of either apprehending criminals or preventing the commission of crime, and with the additional qualification that the surveillance talked about there is not wiretapping and it is not forcibly extracting information. It is simply the viewing in a public place.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Taking pictures and compiling dossiers and this type of thing, you feel is warranted?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I feel is—what?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. IS warranted.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My statement was, I believe, that I did not feel it was a violation of the first amendment. The question of whether it is warranted or not is a good deal different one it seems to me. The question of proper use of executive manpower, you know, with the idea of compiling dossiers on political figures, such as was being done by the Army at one time, strikes me as nonsense.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. But you do not feel that is a violation of anybody's constitutional rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I expressed that view at the time of the hearing before the Ervin committee. I was speaking for the Department, and I will stand by that statement.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Can you just tell me one more time why you feel that this kind of thing which you disagree with and you feel is 67 improper, some of the ridiculous examples we had of a peace march in Colorado where I think there were about 119 people and about half of them were agents, and the fact that a church's young adults class had been infiltrated by Army agents in Colorado Springs, this type of thing which would seem to me to have no useful purpose, why would that not be unconstitutional? Why is that not abrogation to the right of privacy of the individuals involved?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I do not disagree with you at all, but it would seem to have no meaningful purpose to me. Even in my examination of the cases as a Justice Department lawyer, I was unwilling, and I did not feel that the precedents suggested that everything that was undesirable or meaningless was unconstitutional.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, how do we protect these rights if they are not unconstitutional? Let me ask you this
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Can I answer that? I mean, Congress has it within its power any time it chooses to regulate the use of investigatory personnel on the part of the executive branch. It has the power as it did in the Omnibus Crime Act of 1968 of saying that Federal personnelsh all wiretap only under certain rather strictly defined standards. That is certainly one very available way of protecting.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU are right, but when you testified before our subcommittee, again you suggested that the Justice Department, and I quote, "vigorously opposed is any legislation that would open the door to unnecessary and unmanageable judicial separation of the executive branch for information-gathering activities." Now, 1 do not think wo ought to impose unmanageable or unreasonable criteria. But we have got the very strong feeling that the measure that a couple of us introduced, which appeared reasonable to us, was going to be opposed by the Justice Department. What criteria would you oppose or permit to be interposed that would not be unreasonable, unnecessary, or unmanageable?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Speaking as a Justice Department advocate, as I was at the time, I think that a couple of earlier sentences immediately preceding the one you read, Senator, summarized the view that legislation tailored to meet specific evils would not receive the categorical opposition of the Department. I think, from the law enforcement point of view, we were skeptical of the notion that some sort of judicial hearing should be required before an investigation be even undertaken which, I think, would have the most deleterious effect on effective law enforcement, in effect, preventing the commencement of an investigation which might ultimately end up in a showing of probable cause before the investigation could even start.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Have you, or has the Justice Department suggested any possible alternative to the measures that have been introduced by the Members of Congress to deal with this problem?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think the LEAA bill sent up, in response to Senator Mathias' amendment to the LEAA Act of 1970, presents what struck me at the time I had a chance to look at it as a reasonable accommodation of the interests. S
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. In what way?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. In that it prevents the wholesale dissemination of criminal history information; it prevents almost completely the 68 dissemination of criminal investigative information. It confers, in some cases, a right of private action for someone who is wronged by that. I do not pretend to carry in my mind even all of the significant provisions of the act, but it seems to me those were some of them.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. In commenting on this before Senator Ervin's hearing, you seemed to stress, as I recall—and this is, 1 suppose, an even broader question—that the only real way, or the best way, to deal with this would be self-discipline, self-discipline on the part of the executive branch. Self-discipline, on the part of the executive branch, will provide an answer to virtually all of the legitimate complaints against excess information gathering. Do you really believe that is sufficient?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think it can go a long way, yes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me read one paragraph of a memo prepared by a very distinguished member of my staff back on March 17, right after you made that statement, and I would like to have you comment on the thoughts here which I must say are my own. Fundamentally, and of interest both philosophically and politically, the history of civilization and freedom suggests that no societjr which depends simply on the self-discipline of its government can expect to withstand the pressure and temptation to weaken and destroy individual freedom. This is, of course, a tremendously conservative thesis. The need is to protect the individual from big government. If we should rely on self-discipline we would not need the Bill of Rights, the First Amendment protection, of free religion, free speech, free press; the Fourth Amendment protections of security against searches and seizures: the Second Amendment protection against the double jeopardy and violation of due process; the Sixth Amendment requirements of speedy trial, right to confrontation, and defense; the Seventh Amendment right to jury trial; the Eighth Amendment right to fail' bail and restrictions against cruel and unusual punishment. All of these guarantees are express constitutional limitations on the power of government when enacted, because we were not prepared to trust our future to the selfdiscipline of those who happen to be in power.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I agree with that statement. My remarks before Senator Ervin's committee were in a context of the existence of the Bill of Rights, the existence of the statutory restrictions such as were contained in the 1968 act. And the question, as I understand it, was what additional statutory prescriptions should be placed on investigative processes.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU have expressed the opinion that judicial hearings would be deleterious. I can see how sensitive matters would cause this to be the case. But is there no limit beyond which this spying can go, this eavesdropping can go? Why do we not just have a simple recognition of the fact that if we seek the advice and counsel, seek the permission of the unbiased member of the Federal judiciary, that we have provided the buffer we need between big government on one hand that might want to spy and pry and listen and the individual citizen who has the right to privacy? How would that be deleterious? In other words, let us get a court warrant. You would not have to have a hearing. Why could that not work?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, you are talking about a court warrant before you commence an investigation?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Yes; before you tap a telephone.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, you are required to get one now. 69
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. NO; not if it is in national security. At least you suggest it is arguable as to whether it is a domestic or international security problem, and there is a very nebulous area there, as I am sure you1 agree. But why not let a Federal judge say "Yes," that there is probable cause there and go ahead and do it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, as to whether Congress ought to enact legislation like this, I would not express any opinion. Our position in the brief in the Supreme Court has been that with the existing provisions in the act of 1968, the Constitution does not require that it be done.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. What would be wrong with you, as a judge requiring that it be done? Is not this something that a member of the judiciary can take into consideration, whether there has been adequate selfrestraint on the part of the executive?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU mean what would be wrong with passing such a statute?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. NO; a judicial interpretation without a statute in the area where I say it is now nebulous, where the administration feels they have the right, and some of us in Congress feel they do not. Is this a matter that is subject to consideration by the judiciary?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I honestly do not understand your question, Senator.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. IS adequate self-restraint a subject which can be considered in judicial interpretations as to whether fourth amendment rights have been violated or the right to privacy has been violated?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I still do not understand.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, then, we are equal. You see, what concerns me is that we have had, in the past decade, a commingling of executive authority and political activity. In the last 10 years we have had Attorneys General, charged with the dispensation of law, maintenance of order, provision of justice, who have also been the campaign managers of the President they serve. They have run the political operation, and it just seems to me that we would be in a lot better position, before we started taking pictures, before we started listening in on peaceful demonstrations, before we started tapping telephones, if we required that a court order be given. And I will not proceed further on that. Will you give us your thoughts in another area, the civil rights area? Let me just ask you, if I may, to explore the text of the two letters you wrote to the Arizona Republican in the transcript of your testimony concerning the Phoenix Public Accommodations Act enacted in 1964, your statement opposing the public accommodations ordinances, which suggested that it was "impossible to justify the sacrifice of even a portion of our historic individual freedom for such an end." There you were referring to the freedom of businessmen to select their customer for the purpose of giving to the public access to facilities that were offered for public use. That was your opinion before you served in the Justice Department. Is that still an accurate reflection of your opinion now?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think probably not. ; 7 0
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. HOW would you look to that differently now? Would you care to explain a little but in more detail for us, please?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes. I think the ordinance really worked very well in Phoenix. It was readily accepted, and I think I have come to realize since it, more than 1 did at the time, the strong concern that minorities have for the recognition of these rights. I would not feel the same way today about it as I did then.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Have you had the same change of feeling relative to the 1967 letter to the editor in which you quoted a statement of the Phoenix school superintendent relative to the integration of the school system?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think probably not. And if I may explain: My children here go to school out in Fairfax Count}', in schools that are integrated and attended by a minority of blacks. My son plays on a football team, on which both blacks and whites play. He plays on a basketball team on which blacks and whites play, and I feel he is better off for that experience than if he were playing on a team entirely composed of whites. This, however, is done in the context of the neighborhood school. All of these people are in the general geographical area and attend the school because of that. I would still have the same reservations I expressed in 1967 to the accomplishment of this same result by transporting people long distances, from the places where the}' live, in order to achieve this sort of racial balance, and what I would regard as rather an artificial way.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. What is your feeling about transporting people either long or short distances to maintain an all-white or an all-black school?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think that transporting long distances is undersirable for whatever purpose.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. YOU do not make a distinction between the two types of transportation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, in the context of the situation where there has not been de jure segregation, obviously we get into a situation where there are questions pending before the Court, and which it would be inappropriate for me to comment on. T do feel obligated to comment, because I did write the letter to the editor. I think you are entitled to inquire into my personal views on that particular point.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. May I ask you just to explain in a little further detail a specific quotation from a letter that might be more pertinent to the general question? The superintendent of schools apparently had said that we are and must be concerned with achieving an integrated society. And you responded and said: I think many would take issue with his statement on the merits and would feel that we are no more dedicated to an integrated society than we are to a segregated society, that we are, instead, dedicated to a free society in which each man is equal before the law, but that each man is accorded a maximum amount of freedom of choice in his individual activities. Is that still your view now?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. In the context of busing to achieve integration in a situation where it is not a dual school system; I think it is.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. All right, now, we are not talking about an isolated situation whore this is taking place. In fact, ] think this is extremely 71 important, because I think generally one would adopt that hypothesis if it were not for history, and I want to ask you: Do you believe that we can achieve the free society in which each man is equal before the law, as you suggested in your letter, if we ignore the social and economic and sociological consequences of 300 years of segregation? How can we look at this in a vacuum?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. We usually have gone through calculate*.! efforts on the part of Government to segregate. Now, you suggest that we do not have to do something to redress the balance here? It seems to me it is rather
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The courts have held where a situation has pertained in segregation we are required and obligated to redress that balance. That was not the situation to which I was addressing myself in that letter.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me ask you one other question about the civil rights area. As you know, there has been some opposition from the NAACP in your part of the country to you because of one quotation that I have here from a resolution which, if you are not familiar with it, I would be glad to show you. The southwest area conference of the NAACP says: Mr. Rehnquist does not fully accept the right of all citizens to exercise the franchise of voters' rights, and our fears are based upon his harassment and intimidation of voters in 1968 during the Presidential election in precincts heavily populated by the poor. T have here a number of newspaper clippings citing certain types of election-da}^ activities, and apparently you had some position of responsibility within the party to challenge in this type of thing. Would you care to explain how the NAACP would be so concerned about the voter activities? I think Senator Hayden, on one occasion, asked the FBI to investigate.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would not undertake to explain the grounds of the NAACP opposition. I will try to give a fair answer to the specific charges so far as 1968 is concerned. My recollection is 1 had absolutely nothing to do with any sort of poll watching. That is not a completely fair answer or a completely responsive answer, because in earlier years ] did, and they may well have confused 196S with earlier years. My responsibilities, as I recall them, were never those of a challenger, but as one of a group of lawyers working for the Republican Party in Maricoba County who attempted to supply legal advice to persons who were challengers, and I was chairman of Avhat was called the Lawyers Committee in a couple of elections, biennial elections, which I believe were in the early 1960's. And we had situations where our challengers were excluded from precincts where we felt, by law, they were entitled to get into, and 1 might say that our challenging efforts were directed not to black precincts as such but to any precinct where there was a heavy preponderance of Democratic voting, just as our counterparts in the Democratic Party devoted their efforts to precincts in which there was a heavy preponderance of Republican voting. And, as matters worked out, what we finally developed was kind of a system of aibitration whereby my counterpart, who was for a couple 72 of elections chairman of the Democratic lawyers, and I, the chairman of the Republican lawyers, tried to arbitrate disputes that arose, and frequently the both of us would go together to a polling place and try to decide on the basis of a very hurried view of the facts w T ho was in the right and who was in the wrong. And I can remember an occasion in which I felt that a couple of our challengers were being vehement and overbearing in a manner that was neither pioper nor permitted by law and of telling them so. I can also remember situations in which the Democratic poll judges were refusing to allow our challengers to enter the polling place, and I can remember my counterpart insisting that they let them in. So, I do not feel I can fairly be accused in the manner that the NAACP has accused me on the basis of what those activities were.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Of course, a part of this activity was the sending out of letters to those who lived in the minority group areas and then challenging those who had letters returned to you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It was not devoted to minority group areas as such; it was devoted again to areas in which heavy Democratic pluralities were voting together, with some reason to believe that tombstones were being voted at the same time. And this was one of the principal means used to try to find letters returned with the addressee unknown and then to challenge the person on the basis of residence if he appeared to vote. I might say that the Democrats made equal use of the same device.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. AS I read these newspaper clippings, it does not mention anything about the Democrats doing that. I suppose that does not mean they did it or did not do it, but at least the newspaper reporters did not catch it. If I were a Republican, I would want to keep as many Democrats from voting as I could, I suppose, and vice versa. But this is done in some areas, and I am familiar with this, in those areas that are not just Democratic, but minority groups primarily, whether it is chicano or black or whatever it might be, where there is more movement back and forth across the street and from one part of the community to another. Can you give me any reason why the NAACP would make this assessment, or did they just have something in for you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I simply cannot speak for them. I know of my own conduct in these matters, and that the letters were mailed out on the basis of mathematical calculations of Democratic votes in precincts together with aueas in which there was some reason to believe that there actually were tombstone or absentee voting, and I know from my trips to polling places, as a member of the Lawyers Committee, that some of the precincts certainly had a number of blacks, a number of chicanos, and many of them were totally white.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Let me ask two other specific questions, Mr. Chairman, and then I feel I would like to move on and reserve whatever time I might need for further questioning and let Senator Tunney have a chance. There was a question asked by Senator Hart, in which he quoted a U.S. News & World Report article relative to your observations about the liberals on the Court. Are you familiar with the question he asked? I did not get the answer. What he said was: "Is your opinion the former or the latter?" And you said, "The latter," which really did not have meaning.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not remember the question, Senator.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. When you wrote that article
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Oh, I do, too; I remember the question.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. When you refer to the extreme solicitude for claims of a Communist or other criminal defendant, does that mean 3^011 thought the Warren court was very sensitive to the constitutional rights of all citizens, including these groups, or do you mean that the Court was more sensitive to their rights because of some ideological opinion? Now, I think you answered the latter, but then we moved on to something else, and I just wanted to redefine very quickly what you meant when you said that.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I certainly did not mean to suggest then or now that the Court at that time was sympathetic to the claims of Communists, because they, themselves, sympathized with communism. I think what I meant to suggest was that was an ideological sympathy with unpopular groups which was not developed from the Constitution itself which may have partaken of the decision.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. One last question, and that deals with disqualification. I understand the problem you have in not wanting to prejudge a case which you might have to decide, or even to determine whether you are going to remove yourself, but we have a problem, too, Mr. Rehnquist. We have a problem deciding whether your judgment is going to keep you from getting involved in a conflict of interest where you have, indeed, provided significant legal counsel to the Attorney General, and you have, on a number of instances, refused to say to what degree you have been involved in a number of cases. On one case, you suggested that j^ou had helped to prepare a brief. Now, just let me ask you again, and 1 will not repeat all of the assessment here, what Mr. Kleindienst said your job description was, and what you, yourself, said, how you described it before Senator Ervin's subcommittee, but do you not feel that if you had helped the Justice Department prepare a brief, that this ought to disqualify you from sitting on a case? Is that not a direct conflict there?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think my answer to that would be "Yes."
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Well, I may be wrong, but I thought that in the answer to the wiretap question that was raised, you came very close to saying that; but you said, well, you did not want to make a final judgment on that.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. And in a sense I probably should not have answered the last question "Yes," because I think one has got to reserve his complete independence of decision if he is confirmed. I think you are entitled to know my present impressions, and my present impressions are that the memo submitted to Byron White is a good summary of disqualification law, and that it requires disqualification where there has been personal participation, even in an advisory capacity on the preparation of a brief, and that I have participated in the wiretapping brief in an advisory capacity.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I might suggest that we have a precedent that is even a bit stronger than the distinguished Justice that you referred to. Now, 28 U.S.C. 455 says that if you have previously been a counsel, that you should disqualify yourself, and it seems to me if you have helped prepare a brief, you have been as close as you can be, in Government service, of counsel.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 would not want to venture an interpretation of the term of counsel, except to suggest I think it could fairly be said to mean "of counsel," as the term is traditionally used in the legal profession, representing a part in court.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. It is not possible to be of counsel and represent one part of the question and participate in one part of a case, if you happen to be in the Government's employ?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would want to examine
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Who do you have representing the Government on a case?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let him answer. Air.
William H. Rehnquist
Nominee
(R)
REHNQUIST. Would you repeat the question?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I did not mean to interrupt. I just wanted to rephrase the question. Who represents the Government in a court case, who prepares the case, if it was not someone of counsel? Air.
William H. Rehnquist
Nominee
(R)
REHNQUIST. Well, I think the legal definition of someone of counsel is someone whose name is signed to the brief or whose name appears with a specific designation of counsel on the brief. Now, whether that provision should be construed that narrowly or not is something I would not want to prejudge.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. May I quote from the White memorandum? From the foregoing, it seems clear that a Government attorney if of counsel within the meaning of 28 U.S.C. 455 with respect to any case in which he signed a pleading or a brief, even if it is merely a formal act, and probably should be regarded as of counsel if he actively participated in any case, even though he did not sign any pleading or brief. Do you concur in that general assessment? Air.
William H. Rehnquist
Nominee
(R)
REHNQUIST. Well, I concur in that general evaluation.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Are }r ou familiar with the new canons of judicial ethics of the American Bar Association, the ones in the process of being prepared now?
William H. Rehnquist
Nominee
(R)
REHNQUIST. NO.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I might point out that in canon 2, under "Disqualification," the following is cited—and then I will ask your opinion—a judge has to disqualify himself "in any proceeding in which his partiality might reasonably be questioned, including, but not limited to instances where (1) lie has a fixed belief concerning the merits of the matter before him or personal knowledge of evidentiary fact» concerning it; (2) he has previously served as a lawyer in the matter in controversy or has been a material witness concerning it." May I ask you whether you think generally those views are consistent with your view of disqualification? Air.
William H. Rehnquist
Nominee
(R)
REHNQUIST. I have never had an opportunity to review those canons alongside of 28 U.S.C. 455.1 would presume that in any decision I made on disqualification, should I be confirmed, I would then have an opportunity to do that and would do it.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Air. Chairman, I yield and would like to reserve the opportunitj7 to ask further questions if it seems important afterwards. You have been very patient, Air. Rehnquist, and I appreciate it.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Air. Tunney. i O
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNBY. Thank yon, Mr. Chairman. Mr. Rehnquist, }r ou and I are relatively young men, and, as such, I feel a very important responsibility in pas&ing judgment on your qualifications, because it is entirely possible that in the year 2000 you will still be sitting on the Supreme Court if }T ou are confirmed. Between now and then there is going to be a profound political, social, and economic change taking place in this country. You are going to be required to pass judgment on the constitutionality of many of these changes as they relate to maintaining an equilibrium between freedom and order, equality and efficiency, justice and security. I look at 3r our professional qualifications, and I have studied them, your competence, your judicial temperament, your integrity, and I see a highly qualified man for the Supreme Court. I believe, however, as I read your writings, that you share my viewpoint that a nominee's philosophy is a legitimate area for senatorial confirmation inquiry. In other words, it is my view that where the President deems it appropriate to change entirely the character of the Supreme Court, changing it to his own image, the Senate has the right to reject the nominee on the grounds that his views on the large issues of the day will make it harmful to the country were he to sit and vote on the Court. Now, I want to be frank with 3r ou and state that in reading what you have written and reports of what \o\\ have said in speeches, there are aspects of your philosophy of government and the right of the individual which I consider to be very disturbing, just as. I am sure you would consider my views to be very disturbing if our positions were reversed. 1 would like to quote from a few of your letters, articles, and speeches, and ask you to sa}" precisely what you meant in those statements, and the context in which the statements were made. I note that in an article that you wrote for the Harvard Law Record, you express very clearly the fact that you feel that philosophy is a legitimate area for senatorial inquiry and you state: Specifically, until the Senate restores the practice of thoroughly examining inside of the judicial philosophy of the Supreme Court nominee before voting to confirm him, it will have a hard time convincing doubters thai it could make effective use of any additional part in the selection process. A- of this writing, the most recent Supreme Couit Justice to be confirmed was Senator Charles Evans Whittaker. Examination of the Congressional Record for debate relating to his confirmation would reveal a startling dearth of inquiry or even concern over the views of the new Justice on constitutional interpretation. Now, one of the things that I would like to saj" prefatory to my specific questions is that the onry way that we can get an idea of jT our philosophy is if you answer questions. If it is impossible to probe your thinking because you feel that somehow the issue might come before the Supreme Court at some time, there is no way that we can go after the process of thinking that you engage in and which you, in this early article, felt was very important as a part of the senatorial inquiry. Therefore, I am going to try to avoid asking you specific fact situations which will come before the Supreme Court, but it would certainly help me if you could in general explore your thinking, both at time you made the statement and your thinking on the statement now. I will try to make this inquiry brief, because 1 recognize that there are 69-267—71- 76 Republican members of this committee who have a very keen desire to be heard before the day is over. Last year, you wrote a letter to the editor of the Washington Post in which you defended the civil rights record of Judge Harrold Carswell. In that letter you made the assertion that any seeming anti-civil-rights bias on his part was, in fact, not that at all but rather simply a reflection of constitutional conservatism—using your words. The letter stated specifically, and I quote: Thus, the extent to which his judicial decisions in the civil rights cases fails to measure up to the standards of the Post is traceable to an overall constitutional conservatism rather than to any animus directed at civil rights cases or civil rights litigants. If that is true and if we are to believe that you are a constitutional conservative, and, using the President's term, a strict constructionist, what can we expect from you in the area of civil rights in the future?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, just as I understand your problem, you understand mine, Senator. I believe I have tried to give to Senator Kennedy some basic outlines, and however much it may displease you I do not feel I can do more. As I said, a decision that was handed down unanimously and has been unanimously reconsidered by a succeeding group of judges, of which Brown v. Board of Education would be an example, is to my mind the established constitutional law of the land. To the extent that one takes other decisions which were by a closely divided Court more recently, I would regard these precedents as not being as strong, though nonetheless entitled to weight. So far as the power of the Congress to enact civil rights legislation, such as the Public Accommodations Act of 1964, under the commerce clause, on matters like that, I think they have been sufficiently set at rest by a constitutional decision that one need not hesitate to say that that is so.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. And so what I take from your remarks when you testified in 1964 before the Arizona State Legislature against the civil rights bill that was pending before that legislature, you were expressing your viewpoint as a private citizen and that you may or may not hold the same views today?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is correct, Senator. If you were present when I answered Senator Bayh, I would answer you much the same way, and I
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. On a different question, I believe he asked you about the ordinance, the Phoenix City Council ordinance.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, that was the only one. I never testified against any State legislation.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. That was the only one?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Right.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. There was no State legislation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Right.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. I am sorry. I was misinformed about that. When the ordinance passed by unanimous vote in Arizona, you wrote a letter to the editor of the Arizona Republican in which you stated, and I quote: Unable to correct the source of the indignity to the Negro, it redresses the situation and places a separate indignity on the proprietor. It is as barren of 77 accomplishment in what it gives to the Negro as from what it takes from the proprietor, the unwanted customer and the disliked proprietor are left glaring at one another across the lunch counter. Now, I understand your testimony to say that you have a different view of that today, but I am more concerned now about another issue, and that is the relative rank that you give to individual freedoms as opposed to personal property rights. I would assume from reading and interpreting fairly that quotation that at that point you felt that personal property rights w T ere more important than individual freedoms, the individual freedom of the black to go up to a lunch counter?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. In that context, I think that is a fair interpretation.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. DO you still ascribe a greater degree of value to individual property rights in a civil rights area than to freedoms of individuals, individual freedoms?
William H. Rehnquist
Nominee
(R)
REHNQUIST. 1 have indicated that I am no longer of the same opinion on the public accommodations point.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Yes; but I am trying to get at philosophy now.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. OK. If we broaden it out, I certainly am not prepared to say, as a matter of personal philosophy, that property rights are necessarily at the bottom of the scale. Justice Jackson, for whom I worked, commented shortly before his death that the framers had chosen to join together life, liberty, and property, and he did not feel they should be separated. I think property rights are actually a very important form of individual rights. On the other hand, I am by no means prepared to say that a property right must not on some occasion—and 1 am again speaking personally and not in any sense of the Constitution or statutory construction—but certainly when a legislative decision is made that a property right must give way to what may be called a human right or an individual right, that may frequently be the correct choice.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. HOW about if it is not a question of the interpretation of a statute? What happens if the case comes to you on a constitutional question and there is no precedent?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I feel that it is improper for me to answer in that context, Senator.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Was Justice Jackson on the Supreme Court when he made his evaluation of the relative values of life, libertjf, and property?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes. I am not.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. That is what I was tning to find out about. I mean, I do not think that there is anj^one on this committee that would not want to support your candidacy based on }r our professional qualifications. You are an outstanding candidate as far as your competence. We have seen an indication of your judicial temperament and I think it is excellent. But I, like you back in 1958, when you were writing about the subject, am worried about the philosophy, the personal philosophy, of the candidate for the Supreme Court, and I would like to think that individual freedom is more important to you than personal property rights when you have a direct conflict between the two.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, my fundamental commitment, if I am confirmed, will be to the greatest extent possible to totally disregard my own personal belief as to whether property is invariably sub- 78 ordinate to individual freedom or whether they must be balanced in some way. I realize that you certainly are not required to take at face value my statement to this effect and that anyone is perfectly free to attach such significance as they will to Senator Ervin's very perceptive comments that what 1 am today is part of what 1 was yesterday, and yet, framed in the constitutional context in which you fran1 it, I think it is improper for me to answer it.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. In a speech to the Arizona Judicial Coiifs rence, you were reported as saying: First, however, I should point out that the principle of a person is not fin absolutely unchanging light. Constitutional language is sufficiently broad to permit a latitude of judicial interpretations to meet the circumstances of needs of our society at any given time. Were you speaking there as an attorney for the Justice Department or were you speaking there from your personal philosophy?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 was speaking, I think, as a spokesman for the Department in the area of the pretrial detention bill. And T think that the contest of my remarks was that based on a historical unah sis of the cases that personal freedom can be limited by arrest, by detention of a subject, following- a trial, or even to a momentary search under the doctrine of Terry v. Ohio, that these are decisions that have been made by the Supreme Court, and are parameters under which the Justice Department and the Government now operate.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNXEY. YOU were not expressing a personal viewpoint on the constitutionality of preventive detention?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I was giving my best lawyer's view, I would say. as the Assistant Attorney General, of the constitutionality.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Would you feel, if you were on the Court that TOU would have to necessarily apply the same standards
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. AS a justice which you applied as a member of the Department of Justice?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I woidd not.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. In a speech to the Newark Kiwanis Club in 1969, your prepared statement says this, and T quote: We are thus brought to the question of what obligation is o^ed (o the minority to obey a duly-enacted law which it has opposed. From the point of view of the majority, if it functions as a whole, the answer is a simple one. The minority, no matter how disaffected, or disenchanted owes an unqualified obligation to obey a duty-enacted law. How do those principles apply to a black person in the South who was at a segregated lunch counter?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think it is clear from my speech up there that I would not apply that principle to the situation where a person seeks to test the constitutionality of the law. He runs the risk of it being held constitutional, and then he must pay the price exacted by the law. But if the law is held unconstitutional, obviously he is vindicated.
Senator John V. Tunney (CA)
Senator
(D)
Senator TUNNEY. Mr. Chairman, I would like to reserve the rest of my questions.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH (presiding). The Senator from Nebraska.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Thank you, Mr. Chairman. Mr. Rehnquist, I want to congratulate you on the events which, happily, have made it possible to have your presence here in the committee room today under these circumstances. The confidence and the judgment of the President when he transmitted to the Senate your nomination for the position of Associate Justice of the Supreme Court confirms my own favorable estimate which has been built up over the course of the last two and a half years. During that time it has been my privilege to have worked with you quite closely on a number of matters of mutual concern, and to have observed you in your role as an advocate for the administration before various committees of the Congress. I have observed you also as a counselor, as a consultant with reference to matters of policy, and as an adviser on legal problems in the field of jurisprudence. My conviction and my estimates have been reinforced since your nomination by a reading of some of the material that you have written and some of your public statements, which had not come to my attention sooner. I was most favorably impressed with these documents. So, I say again, I congratulate you for the preferment that has come your way. Mr. Chairman, I should like to defer now to my colleague, the Senator from South Carolina, who states that he has a few brief questions to pose, and then I should like to resume my statement and ask a few questions.
Senator Strom Thurmond (SC)
Senator
(R)
Senator THURMOND. Mr. Chairman, T wish to thank the distinguished, able Senator from Nebraska for his courtesy. Mr. Rebnquist, I wish to take this opportunity to congratulate you and the President upon your appointment. In looking over the record of the Standing Committee on the Federal Judiciaiy of the American Bar Association, I was interested in reading its content and was impressed with the findings of this committee. The last page of the report reads as follows: The committee is unanimous in its view that he is qualified for appointment to the Supreme Court. A majority of nine is of the opinion that he is one of the best qualified available, and thus meets high standards of professional competence, judicial temperament, and integrity. The minority," which would be three, there are 12 on the committee, would not oppose the nomination. I feel that with your impeccable character, Mr. Rehnquist, your superior legal mind, and your quick intellect, that you are uniquely qualified for the Supreme Court, which Mr. Nixon has termed the fastest track in the Nation. Your experience as a law clerk to Justice Jackson, your experience in the Justice Department, and your experience as a practicing attorney are very valuable to you in this work. 1 am very much interested in seeing lawyers appointed to the Court who believe in the Constitution of the United States, and ^ho will uphold that document and will not attempt to rewrite it. Senator Ervin and Senator McClellan have already brought out some points I intended to bring out, so I shall not duplicate. I think if 1 were commissioning a lawyer to go to the Supreme Court today, [ would give him two books, and tell him to put one in each hand, the Bible in one hand, and the Constitution in the other, and I think he would have good guidance. And, therefore, because of your unquestioned integrity, your very excellent ability, your successful experience in the practice of law, your service to our country, and by that elusive quality known as 80 judicial temperament, which few of us can define but which all of us can recognize when we see it it will be a pleasure for me to support your nomination. Thank you, Mr. Chairman. That is all.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRTISKA. Mr. Rehnquist, your nomination by the President renews a problem that always comes to people who move from one capacity to another, whether it is in public life or in private life. You have led a varied life with many facets, first of all as a clerk to one of the Justices of the Supreme Court. Then as an advocate for your clients, when you were in private practice, and now you are occupying an office in the Department of Justice where you have served as advisor, advocate, and spokesman for the Attorney General. You are about to change your advocacy now. In fact, it will be a termination of advocacy. But, it: will be necessary for you to transfer your loyalties, and the application of your resources, and 3T our talents to another role, that of a judge You will no longer be an advocate; you will be looking at two or more advocates before you in the presentation of one cause or another before the Supreme Court and making a determination between them. My question is this: Do you know of any reason why you could not be successful in shedding and thrusting to one side any loyalties that you may have had in the past, in the interest of extending to the advocates before you, as a member of the Supreme Court, that fairness of decision, and that consideration of the facts and the law which will enable 3^011 to make a fair decision, regardless of the color of the skin, regardless of the economic position, regardless of any other attribute which may be involved? Will you be able to make a fair decision, based upon the facts and law, and the Constitution, regardless of any official position or personal feeling that you have taken in the past?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I will bend every effort to do so, Senator, and I would regard myself as a failure as a Justice if I were unable to do so.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. TO my leftwing friends, when they conclude, we II g-o over to 10:30 in the morning with Mr. Rehnquist. [Laughter.] (The Republican members of the committee were seated to the chairman's left.)
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. The chairman will allow the leftwing friends to continue tonight?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Yes, sir.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. Thank you, sir.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Some interrogation today has been directed toward you, which has canvassed some of the past statements you have made, some of the positions that you have taken, and some of the briefs that you have filed, and speeches made. I ask these questions for the purpose of ascertaining in my mind that you are willing to undertake the very difficult task of discontinuing your interest in past actions and positions when you assume your new position. Your responses have indicated the answer to be affirmative. Now, with reference to positions on various current national issues held by persons in public life, whether they are officials or not, they are sometimes said to be in step with the needs of the time or "out of step with the needs of the time." 81 Now, with regard to the interpretation of principles of the Constitution, what are your ideas as to the part to be pla}r ed by the desire or the necessity to be "in step with the needs of the times"?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think the framers drafted a document, Senator Hruska, which was capable of forming a framework of government, not just in 1789, but in our own day. And there is no question in my mind that the principles they laid down then, as subsequently interpreted, must be applied to very changed conditions which occur now rather than then. But, I think even now it is to the Constitution and to its authentic interpretation that we must turn in solving constitutional problems, rather than to simply an outside desire to be "in step with the times."
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Weil, there is a philosophy held by many people that when one seeks to be in step with the times it is necessary to determine what is the public wave of approval or disapproval of something, at a given time, and then there should follow the interpretation of the Constitution or an application of its principles which will conform to the popular whim or fancy of the day. Do you subscribe to that sort of inperpretation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO, I do not; and I think specifically the Bill of Rights was designed to prevent exactly that soit of thing, to prevent a majority, perhaps an ephemeral majorit}', from restricting or unduly impinging on the rights of unpopular minorities.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. One of the enduring values of the Constitution is its protection of the rights of minorities, is it not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Earlier there was discussion during this hearing about some recent Supreme Court decisions that may have handcuffed the police, and I believe you answered in that connection that the Bill of Rights protects the rights of individuals against oppression by government. As a matter of fact, that is the reason for the existence of the Bill of Rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; it is.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. But, in addition to persons accused of crime who need certain protections, theie are others who possess rights granted by the Constitution. These persons also deserve certain protections. I am speaking of many people who are not accused of crime, who are law-abiding citizens, the great bulk of society, whose rights are encroached upon when protections given individuals go beyond reasonable bounds. In other words, all people are protected by the Constitution. We have on one side the protection of individuals by the Bill of Rights and we have safeguards and goals for the vast proportion of the population which are set forth in among other places the Preamble of the Constitution: We, the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Now, then, if in the process of trying to afford individuals the rights granted by the Bill of Rights there comes about a situation where there is an impairment of the rights of the general public, then there arises a situation which the Supreme Court finds difficult to resolve. 82 Judge Lumbard in 1963 put it this way: In the past forty years there have been two distinct trends in the administration of criminal justice. The first has been to strengthen the rights of the individual; and the second, which is perhaps a corollary of the first; is to limit the powers of law enforcement agencies. Most of us would agree that the development of individual rights were long overdue; most of us would agree that there should be further clarification of individual rights, particularly to indigent defendants. At the same time we must face the facts about indifferent and faltering law enforcement in this country. We must adopt measures which will give enforcement agencies proper means of doing their jobs. In my opinion, these two efforts must go forward simultaneously. Now, there are many of us who feel that for a long time there has been an undue emphasis, and to some extent almost exclusive emphasis, upon individuals rights to the detriment of the rights of society as a whole. We believe with Judge Lumbard that this imbalance should be replaced with simultaneous attention to both aspects. Do your agree?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would certainly not want to comment on any particular matter that would come before the Supreme Court were 1 confirmed in that context. Taking Judge Lumbard's statement as a desirable philosophical approach to the problem of law enforcement, the concomitant development of the rights of individuals, and the efficacy of law enforcement, I certainly have no quarrel with it at all. Ultimately, of course, any such philosophical judgment or legislative judgment is subject to the requirements of the Constitution, and were I confirmed as a Justice of the Supreme Court, it would be the commands of the Constitution, as I understand them, that I would employ in passing judgment on any such measures.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. If in the process of implementing the Bill of Rights there is an impairment, or an erosion, or a potential destruction of the rights of society, then we have a real problem, do we not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, if in fact the Bill of Rights does produce such an imbalance, we have a problem. But, it is obviously not one that the Justices of the Supreme Court should solve by rewriting the Bill of Rights so that it permits more balance on the side of law enforcement. It seems to me that the type of situation which you are referring to, and perhaps I am poorly paraphrasing your language, is that the preamble and other sections of the Constitution contemplate that the legislative process, shall ultimately govern, subject to the provisions of the Constitution. And that where the Constitution itself, were it to be distorted in meaning, so as to unreasonably restrict what was the intent of the Framers as to the extent of the legislative power, then it would be something that ought to be corrected.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. It was not my thought that to reconcile these two positions, that the Supreme Court should step in and legislate.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO, I was sure it was not.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Or to construe the Constitution differently from the intent of the framers. Now, honestly, and with due regard for precedent, and due regard for the principles that are supposed to be more or less stationary and stable, mj thought was, however, that exclusive attention should not be paid to one part of the Constitution at the expense of another.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly all sections of the Constitution that have any applicability to a case should be considered. 83
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. It seems to me that Senator McClellan spoke wisely and truly when he referred to the three tests that we should apply to any nominee for the Supreme Court which we have come before us. The idea of personal integrity, professional competency, and, or course, finally, fidelity to the Constitution, because it is tho»e nine men on that court to whom we must look for that latter quality. 1 believe you meet these three tests to a high degree. I thank you for your answers and for your appearance, and I defer now to my colleague, the Senator from Pennsylvania.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. Thank you.
Senator Roman Hruska (NE)
Senator
(R)
Senator HRUSKA. Reserving additional time at a later time if an occasion should arise.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. Thank you, Senator Hruska. Mr. Rehnquist, I have the greatest s}rmpathy for the fact that you have been here a long time, and I will bo very, very brief. Initiation into the Supreme Court is one of the roughest of American tribal rites, and 3^011 have my sympathy for it. You will hear a lot from the Members, and a considerable amount that might otherwise be designated as opinions from some of us, but we are all engaged in the search for the same thing, the qualifications of the candidate. A major breakthrough in the fight for equality in employment opportunity occurred on the 27th of June 1969, when the Department of Labor announced the Philadelphia plan. You played a part in that. What is the plan, and what was your part leading to its enactment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The Philadelphia plan, Senator, was a proposal implemented under the leadership of the Department of Labor to require in the construction trades in Philadelphia, and in other localities where the situation was similar to that which had prevailed in Philadelphia, where in effect statistics and history indicated that minority members were simply not getting into unions, and the construction contractors were depending on union hiring halls to furnish their employees, to require, as a condition of receiving a Government contract, a commitment to achieve, if possible, certain goals of minority hiring. My role was that almost immediately after the plan was announced by the then Labor Secretary Shultz, the Comptroller General of the United States rendered an opinion that in his view the plan was unconstitutional and unauthorized by law. This obviously put the Secretary of Labor in a serious bind and he consulted the Attorney General and requested an Attorney General's opinion on the legality of the plan. With the help of the Solicitor's Office in the Labor Department, and our own Civil Rights Division in the Justice Department, we prepared a draft opinion, which was ultimately signed by the Attorney General, upholding the legality and constitutionality of that plan.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. And you played a considerable part in that, in that you prepared the memorandum for the Attorney General? Air.
William H. Rehnquist
Nominee
(R)
REHNQUIST. Yes; I would say it. was carried out under my supervision, and I personally, as I do on all draft Attorney General's opinions that have been prepared since I have been there, devoted a substantial amount of effort to it. Senator SCOTT. Where did the opposition to the plan come from?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not know that I know that much about it.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. I do not mean by name, but generally who was opposing the plan and criticizing it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My recollection is that it was the construction trade unions and some of the contractors.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. I will not go into further detail on that since the plan, itself, is pretty well known.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST, on the 22d of May 1962, during the administration of the late President Kennedy, the distinguished Attorney General, Robert F. Kennedy, appeared before this committee in open hearings, and I was in attendance at the time, and he made a statement which was followed by a considerable amount of questioning, and other witnesses later appeared, all of which is available if anyone wishes to note the extent of the Attorney General's opinion and the reactions of the committee, but I think it is interesting to read and ask you if you will find any reason to differ from a part of this statement. I would like, Mr. Chairman, to reserve the right to put the statement in the record tomorrow after I have made some further study of it. The Attorney General made the point that it is necessary, and he offered H.R. 10185, in such a bill to provide adequate authority of law enforcement officers to enable them effectively to detect and prosecute certain major crimes; prohibit all wiretapping by private persons and all unauthorized wiretapping by law enforcement officers; provide procedural safeguards against abuse of the limited wiretapping which it would authorize; establish uniform standards for the Federal Government and the States. He makes the point that: Wiretapping is an important tool in protecting the national security. In 1940 President Roosevelt authorized Attorney General Jackson to approve wiretapping in national security cases. Attorney General Clark, with President Truman's concurrence, extended this authorization to kidnapping cases. Now, the questioning of you today, some of it has turned on the issue of whether or not in matters involving national security the President, or the Attorney General acting for him, has under the Constitution certain powers in addition to the powers subsequently granted to him under the Omnibus Crime Act. Here is a part of Attorney General Kennedy's statement, on page 7, in which he seeks the alternative methods contemplated in addition to the bill: In cases involving national security, we have provided alternative procedures. Application may be made to a court under the procedures outlined above, but in addition the bill provides that the Attorney General, in person, may authorize interception of wire communications if he finds that the commission of the offense is a serious threat to the security of the United States and that the use of the court order procedure would be prejudicial to the national interest. In a narrowly limited class of cases, both because of the sensitivity of the information involved and in the interest of speed, the Attorney General needs this executive authority to permit wiretapping. National security requires that certain investigations be conducted under the strictest security safeguards. All Attorney Generals since 1940 have been authorized by the President to approve wiretapping in national security cases. Attorney General Clark, with President Truman's concurrence, extended this operation to kidnapping cases. 85 He goes on to say: This legislation would authorize the Attorney General to order wiretapping after the determination that there was a reasonable ground for belief that the national security was being threatened. In order to proceed, the Attorney General would have to rind and certify that the offense under investigation presented a serious threat to the security of the United States; that facts concerning that offense may be obtained through wiretapping; that obtaining a court order would be prejudicial to the national interest and that no other means are readily available for obtaining such information. And the concluding part of this section of his statement reads: Thus, the bill would limit the authority now held by the Attorney General to authorize wiretapping but it would permit evidence obtained thereby to be presented in court. I believe these are most important points. Would you be in a position to comment on that, outside of the same work of your own brief to the Court, Supreme Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, naturally it would be improper for me to comment in any sense in a situation like that that might come before the Court for review, whether or not I might feel bound to disqualify myself. But certainly it sounds as if Attorney General Kennedy's testimony was very similar to the practice presently followed by the Department of Justice in which it is substantially defended in the brief just filed by the Government in the Supreme Court of the United States, the limitation to national security cases, and the importance of the same to the protection of the Government, itself, that is.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. And you noted in the quotation that the Attorney General makes the point that this power has existed in the President, acting through their Attorneys General, since 1940, which is now 31 years?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, and we now have 9 additional years of precedent which we have cited in the Department's brief, since Attorney General Kennedy spoke in 1962.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. Well, I thank you very much, Mr. Rehnquist, I reserve the right to continue in case there is a second round of questioning. I would also like, Mr. Chairman, to reserve the right, as I noted, to offer this brief with some additional documentation in the hearing tomorrow. Thank you, sir.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH (presiding). The chairman will welcome all material the gentleman from Pennsylvania wants to put in the record. Senator Cook.
Senator Marlow Cook (KY)
Senator
(R)
Senator COOK. Mr. Chairman, I would like to reserve the right until tomorrow. I think Senator Mathias and I have agreed. There is, however, one thing that I want to say for the benefit of the few press that are left. In the letter from the American Bar Association that was distributed this morning, I would like to read the second to the last paragraph on page 2 which says: While the committee is unanimous in the view that Mr. Rehnquist is qualified for the appointment, three members of the committee believe that his qualifications do not establish his eligibility for the committee's highest rating and would, therefore, express their conclusion as not opposed to his confirmation. I wish to say to the few spectators that are left that this may be why people can no longer believe what they read in the newspaper, because the night final of the Evening Star says: Court Choices Given ABA Okay. Panel Supports Rehnquist 9-3, Powell Fully. 86 Now, that is completely inaccurate and everybody can see it in print.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Mr. Chairman
Senator Birch Bayh (IN)
Senator
(D)
Senators' BAYH. May I just ask the Senator from Kentucky if he believes anyone who disagrees with him on an issue is on the wrongside?
Senator Marlow Cook (KY)
Senator
(R)
Senator COOK. NO, sir; I do not, and I think the acting chairman knows different than that, and the acting chairman and I have been at this for quite some time. But, one of these days I may be fortunate enough to get enough seniority on here that I will be able to ask some of those question before they all get asked.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Mr. Chairman?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. I would suggest that you will have to have a little patience, and we have all had a little today.
Senator Hugh Scott (PA)
Senator
(R)
Senator SCOTT. If 3*011 would yield, I would like to comment that if this committee would some day revise its procedures in line with those of most other committees, and alternate right to left, maybe some of us would get an opportunity to be heard before the noon and the evening deadlines have passed, and all of those AVIIO have made the deadlines have happily gone hence.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Mr. Chairman, following up
Senator Marlow Cook (KY)
Senator
(R)
Senator COOK. I apologize that the able acting chairman is the one that got caught in that.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Mr. Chairman, the Senator from Kentucky and I made sort of a nonjudicial interpretation that this is getting close to the eighth amendment prohibition against cruel and unusual punishment to prolong this very much longer. Mr. Chairman, can we have an understanding that we begin tomorrow with the Senator from Kentucky, and proceed with the normal rotation of questions?
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. With the understanding from the Senator from Indiana that our chairman decides for us and we come in at 10:30 tomorrow morning. I certainly feel we should resume
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. With the Senator from Kentucky.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH (continuing). Where we had terminated.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Right. Thank .you, Mr. Chairman.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Could I address one last question which I thought had been laid to rest, and I feel somewhat with deference to the witness and nominee, I just wondered, you have just been given a copy of the transcript that I thought answered the question obviously, but let me have just one more question: When we were talking about various clients and I asked questions relative to Transamerica Title Insurance Corp., or Phoenix Title & Trust Co., now, did you negotiate—you talk about escrow and this type of thing, and I think you laid this to rest, but I want to ask one specific question, and I think it is important to you that it be in—did you negotiate or carry out a verj~ large transfer of land in 1964, involving land in Arizona exchanged for land in Point Reyes National Park, Calif.?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Point Reyes Park in California? No.
Senator Birch Bayh (IN)
Senator
(D)
Senator BAYH. Thank you. (Thereupon, at 6:20 p.m. the hearing was recessed to reconvene tomorrow, Thursday, November 4, 1971, at 10:30 a.m.)
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let us have order. I will state to the committee that Senator Byrd and Senator Spong desire to go to Senator Willis Robertson's funeral. Therefore, they are going to present the nominee, Mr. Powell, and then we will go back to Mr. Rehnquist. Senator Byrd.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Thank you, Mr. Chairman. Gentlemen of the committee, I shall be very brief. I know that the committee wants to proceed expeditiously on these two nominations since the Court is short handed. Now, Mr. Chairman, first I would like to invite to the attention of the committee
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Wait just a minute. Is Congressman Satterfield present?
Rep. David Satterfield (VA)
Mr. Satterfield.
(D)
Mr. SATTERFIELD. Yes, sir.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Would you come up, sir?
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Mr. Chairman, I want to invite to the attention of the committee that the entire Virginia congressional delegation is present this morning, four Democrats and six Republicans, in support of the nomination of Lewis F. Powell to the Supreme Court of the United States. Also present is the attorney general of Virginia, Mr. Andrew Miller, who strongl\T supports the nomination of Mr. Powell, and the committee has, in its hands, a letter from Governor Holton who likewise strongly supports the nomination of Mr. Powell -87 Mr. Chairman, gentlemen of the committee, I have known Lewis Powell for 25 years. He is an outstanding lawyer. He is recognized not only in Virginia but throughout the Nation as one of those who stand at the very top of the legal profession. He has in my judgment a fine judicial temperament. He is a man of great ability and of the highest integrity. I feel confident that he will add luster to the highest court of our land. The people of Virginia are strongly behind Lewis Powell. Although he has dedicated his life to the law, he has served his community, the city of Richmond, and his State, the State of Virginia, in may positions of responsibility of an appointive nature. Through the years he has taken a keen interest in education, having served on the school board of his native city and subsequently on the State Board of Education for the Commonwealth of Virginia. Mr. Chairman, and gentlemen of the committee, I strongly endorse President Nixon's nomination of Lewis F. Powell to the Supreme Court of the United States, and I am convinced that if he is approved by this committee, and confirmed by the Senate, that he will make an outstanding jurist and he will add distinction to the most distinguished court in our land. I thank the chairman and the members of the committee for this opportunity.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Any questions? Senator Spong.
Senator William B. Spong Jr. (VA)
Senator
(D)
Senator SPONG. Mr. Chairman, I am pleased to be here with Senator Byrd this morning and with Congressman Satterfield and all the other members of the Virginia congressional delegation and the attorney general of Virginia to present to the Judiciary Committee Lewis F. Powell, Jr., who has been nominated for the Supreme Court. Mr. Powell has engaged in the private practice of law since 1932 in Richmond. His career has included positions of highest honor and greatest responsibility in the legal profession. He was president of the American Bar Association in 1964-65, president of the American College of Trial Lawyers in 1969-70, and president of the American Bar Foundation in 1969-71. In 1970 he was elected an Honorary Venturer of Lincoln's Inn—one of only three Americans, the others being the late Dean Acheson and Whitney North Seymour, to have been so honored. Lewis Powell has served with distinction as a citizen of his Nation, of his State, and of his community. At the national level, Mr. Powell was a member of the National Commission on Law Enforcement and Administration of Justice, appointed by President Johnson in 1965. He was a member of the Blue Ribbon Defense Panel, appointed by President Nixon in 1969 to study the Department of Defense. Of special interest to the members of this committee, he was a member of the National Advisory Committee on Legal Services to the Poor, established pursuant to the Economic Opportunity Act of 89 1964. For his work in helping to develop the concept of legal aid within the professional legal system Mr. Powell received the first annual Office of Economic Opportunity Award in 1968. Not least of all, his service for his country has included 33 months in the European and North African Theaters during World War II as a combat and staff intelligence officer with the U.S. Army Air Corps. He served in the ranks of first lieutenant through colonel, and was awarded the Legion of Merit, the Bronze Star, and the French Croix de Guerre with Palm. These are impressive credential which would commend this man to you for confirmation. As a fellow lawyer, and one who has worked with Lewis Powell in Bar Association matters, 1 could dwell at length on his accomplishments in his chosen profession. But I want briefly to talk with you this morning about his record as a citizen of Virginia and its capital city of Richmond during the difficult times following the Supreme Court decision in Brown v. Board of Education. During these years I was chairman of a commission to study and make recommendations to improve public education in Virginia. I had an opportunity to observe Mr. Powell in action and to understand the full scope of his influence and sense of fair play. Mr. Powell conferred with me with respect to the commission's work, testified before the commission and strongly supported the recommendations this commission made to improve public education throughout Virginia. In his position as chairman of the Richmond Public School Board from 1952 to 1961 and then subsequently as a member of the State Board of Education, Mr. Powell was in a position of complex responsibility during some very turbulent and confused times. His primary concern was to keep the schools of Virginia open and to preserve the public education system for all pupils. You can recall with me, I am sure, some of the problems that followed the integration orders in other States of the South. That a similar fate did not befall Richmond was in large measure due to the calm leadership, the perceptive judgment and the open minded and fair attitude which exemplified Mr. Powell's schools board incumbency. His forceful and moderating voice stood out to many Richmonders as the best hope to avoid serious disruption of their city's public school education system. In the persepective of history, men of reason and good will can suggest actions which Mr. Powell might have taken to speed up or slow down the process of desegration. But the point of my telling you all this, Senator Eastland and members of this committee, is to demonstrate as forcefully as I can that you have before you today a man of courage, independent judgment and intellectual honesty. These are the qualities I would hope to find in any nominee to fill a vacancy on the Supreme Court. I believe you will find them, as I have, in Lewis Powell. Mr. Chairman, I have here the resolutions of the Virginia Bar Association, the Virginia State Bar, the Virginia Trial Lawyers Association, and of the Bar Association of the City of Richmond and I would ask that they be received in the record.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. They will be admitted. (The resolutions referred to follow.)
Senator William B. Spong Jr. (VA)

()
Senator SPONG. Lastly, I should like to thank you for your courtesy in allowing Senator Ityrd and me to appear early this morning; in order that we may attend the funeral of Senator Robertson. Thank you.
Senator Robert Carlyle Byrd (WV)

(D)
Senator BYRD. Mr. Chairman, may I say I have some inserts for the record, too.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. They will be received
Rep. David Satterfield (VA)
Mr. Satterfield.
(D)
Mr. SATTERFIELD. Mr. Chairman, I appreciate this opportunity also to appear here this morning. I realize the press of time on this committee and I shall not impose upon it. It is not only an honor and a privilege to appear in behalf of Lewis Powell, but I also have the privilege to act as spokesman for the entire Virginia delegation who endorse his nomination. I think it is a measure of the depth of that support, the fact that all of them are here this morning in person to convey their feelings and to express their endorsement of his nomination to this committee. I cannot let the moment pass without making one brief observation. I have known Lewis Powell all of my life and I have known him somewhat intimately the last 25 }^ears through the practice of law and I would like to tell you that I know that he is a man of impeccable integrity. I know him to possess a tremendous intellectual capacity, a keen analytical mind which is remarkable in its inquisitive and perceptive capacity. He has an eminent record for distinguished public and professional service which has demonstrated time and again an objective, orderly, and judicious approach to problems. 110 Because of that record and his personal character, he is held in high esteem by the members of his profession and all who know him and have observed his service to his State and Nation. He is eminently qualified to serve as a Justice on the Supreme Court of the United States and I have no doubt he will discharge his duties in that high position with distinction. I respectfully recommend his nomination to you without a,nj qualifications whatsoever. Thank you.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Thank you, sir.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Mr. Chairman, is it appropriate to inquire for the benefit of the committee members what the schedule is going to be? I was left with the gavel last evening and I advised our colleagues that some of our brethren on the Republican side would have an opportunity to address themselves to the previous witness.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. YOU were not present when we began. The two Virginia Senators want to go to Senator Willis Robertson's funeral and they are presenting the nominee at this time. We will go back to Mr. Rehnquist as soon as
Senator Birch Bayh (IN)

(D)
Senator BAYH. That is perfectly fine with me, Mr. Chairman. I just wanted to know what we could expect for the rest of the day.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Thank you, gentlemen.
Senator Robert Carlyle Byrd (WV)

(D)
Senator BYRD. Thank you.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Burdick is recognized.
Senator Quentin Burdick (ND)

(D)
Senator BURDICK. Mr. Chairman, I would like to congratulate the nominee selected by the President. Much of this ground has been gone over already. I would like to ask one question. Would you like to elaborate on j'our concept of stare decisis? 138
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not know that it would be elaboration. Senator, but I will certainly do my best to give you my ideas on the subject from, as you might imagine, a very general point of view which I feel is all that I could say at this time. I think that in interpreting the Constitution, one goes first to the document itself, to the historical materials that may be available, casting light on what its framers may have intended, and to the decisions made by the Supreme Court construing it, and I think that precedent is very important in the case of all branches of the law. I think it is important in constitutional law although I think traditionally it is regarded as less binding in the area of constitutional law than it is, for example, in the area of statutory construction. I think it is nonetheless important and an important factor to be considered because basically it represents the judgment of what nine other Justices who took the oath of office to faithfully administer the Constitution thought it meant on the facts before them then. And I think any decision rendered in that matter is entitled to great weight by a subsequent Court in considering the same question.
Senator Quentin Burdick (ND)

(D)
Senator BURDICK. I believe you said yesterday that a unanimous decision would have greater weight than a 5-to-4 decision?
William H. Rehnquist
Nominee
(R)
Mr. REHNQuifoT. Yes; I did.
Senator Quentin Burdick (ND)

(D)
Senator BURDICK. But you also attributed weight to the 5-to-4 decision?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; I would.
Senator Quentin Burdick (ND)

(D)
Senator BURDICK. What did you mean in saying that you thought that precedents had a greater weight in statutory construction than in constitutional construction?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would hark back, and it seems to me it was Justice Brandeis in the Ashwander case, although I may be mistaken both as to the Justice and as to the case, where the observation was made that in the case of statutory construction, stare decisis should be given virtually controlling weight because it is always within the power of Congress to change a decision should it feel that the Court has misinterpreted congressional intent, whereas in the area of constitutional law, with the great difficulty of constitutional amendment as opposed to mere revision or amendment of the law by Congress, there is a tendency to be more willing to review a prior piecedent on its merits.
Senator Quentin Burdick (ND)

(D)
Senator BURDICK. Thank you. That is all I have.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Where were you, Birch, on the Republican side?
Senator Birch Bayh (IN)

(D)
Senator BAYH. When we recessed yesterday, I think Senator Cook or Senator Mathias—why don't we let them decide, Mr. Chairman. Senator Fong was not here.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. I understood you granted the right to be recognized to two Senators.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I think we ought to let the minority decide that amongst themselves, Mr. Chairman, if I might respectfully suggest.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. GO ahead, Senator.
Senator Hiram Fong (HI)

()
Senator FONG. Mr. Rehnquist, I want to join my colleagues in congratulating you on your nomination. You had a visit with me in my office and we discussed a few things. Primarily we talked about the wiretapping law. You have a great responsibility when you assume the position of a Justice of the Supreme Court. This is a grand nation because it has a great Constitution and very strong Bill of Rights and a Supreme Court which dispenses equal justice under law. The Supreme Court, as you know, is the last bulwark of freedom and justice for our citizens. Other countries have constitutions like ours. They have copied provisions of our Constitution, our Bill of Rights, but in the execution of these provisions sometimes they forget some of their citizens and render many of them verj-, very disadvantaged. I refer to cases, where the Supreme Court of the United States has not only safeguarded the rights of citizens, but aliens too are given the equal protection of our laws. In some other countries, aliens cannot even inherit w T hat their fathers and mothers have left to them; they must sell their businesses within 6 months. I know of countries w T here aliens cannot pursue innumerable different types of business callings. Even being butchers or barbers is barred to them because the Constitution does not give them that right. I know of countries where people who are born there do not acquire citizenship. One of the latest cases I have read about is that of two journalists who were born in the Philippines. They were allegedly espousing, I believe, some communist doctrine in a newspaper in Manila and were picked up by the Philippine Government. Even though they were born in the Philippines and had never been in Taiwan, they were put on an airplane and sent to Taiwan to be tried by the Government of Taiwan for communist activities. This despite the fact that they had been born in the Philippines and their activities had taken place in the Philippines. Yes, there are many countries which have a great constitution— on paper, and yet the citizens are not protected. They do not have the same kind of rights as the people have in these United States. Here you have a nation with a great Constitution and a glorious history and a fine Supreme Court which has not yielded to pressure from either the executive or the legislative in rendering its decisions. You have been given a fine recommendation by the American Bar Association. All of the members of the standing committee on Federal Judiciary have felt you are competent; that you are a man of integrity; that you are very capable and you have judicial temperament; but some do not agree with your personal philosophical views. As you know from our discussion in my office, I was one of four Senators who voted against the omnibus crime bill, I did so because I thought that title III, of that bill went far beyond what should be enacted into our laws. I refer to the wiretapping and the surveillance provisions of that bill. Am I right in saying, Mr. Rehnquist, that you support the Justice Department's position that the President has an inherent right to use wiretap against those the Department deems to be domestic radicals, whatever that term may include, as well as support no-knock entry by the police and preventive detention?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, I have made public statements as Assistant Attorney General in support of the constitutionality of pretrial detention and in support of the Department's position with respect to wiretapping in national security cases. 69-267—71 10 140
Senator Hiram Fong (HI)

()
Senator FONG. Yes; you support the Justice Department position in that respect, is that correct?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have done that, yes.
Senator Hiram Fong (HI)

()
Senator FONG. In fact, certain papers and columnists have averred that 3r ou were instrumental in developing the theory that there is an inherent right in the Executive to such use of wiretap or surveillance, even without prior court order. Is that correct?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would say "No, Senator, I think that five administrations have taken that position from the time of Franklin Roosevelt until the time of President Nixon. We worked in an advisory capacity in our office on the Government's brief to be presented to the U.S. Supreme Court in defense of that authority. We worked with the Internal Security- Division people. But we were dealing with materials that had been evolved previously.
Senator Hiram Fong (HI)

()
Senator FONG. In other words, you are saying }~ou followed the thinking that was evolved by other administrations, that such power was inherent in the Executive?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That certainly was our reading of the exchanges of correspondence between the Attor:ie}*s General and the Presidents.
Senator Hiram Fong (HI)

()
Senator FONG. When you addressed the week-long symposium on law and individual rights held last December at the University of Hawaii, you were quoted in the Honolulu Advertiser as stating in an interview on Hawaiian Educational TV: I'm not sent out to be objective. I simply do what the Attorney General tells me to do. That was your feeling at that time when you were a member—as you now are a member of the Justice Department. You did these things and made these speeches acrording to the wishes of the Justice Department, is that right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is correct, with this qualification, Senator: had I felt the positions I was taking or the doctrines I was espousing were utterty obnoxious to me personally, I simply would not have continued in that position, but I did regard myself as an advocate.
Senator Hiram Fong (HI)

()
Senator FONG. YOU concurred with the Justice Department position?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I spoke for it as an advocate.
Senator Hiram Fong (HI)

()
Senator FONG. Yes. As I said, you are aware that I was one of four Senators who voted against the final passage of the omnibus crime bill because of its farreaching wire-tap provisions. I was joined only by three of my colleagues in this opposition to the Omnibus Crime Act. My three colleagues were Senator Hart, Senator Cooper, and Senator Metcalf. As early as May 1968 when the omnibus crime bill w T as under consideration, I voiced my strongly held opinion that wiretapping and electronic surveillance were enormously dangerous practices presenting an extraordinary threat to our individual liberties. I pointed out that: "In a democratic society, privacy of communication is absolutely essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas." I then pointed out that: "When we open this door of privacy to the Government—when the door is widely agape, * * * it is only a very short step to allowing the Government to rifle our mails and search 141 our homes. A nation which countenances these practices," I said, "soon ceases to be free." As early as May 1968, I pointed out that I was fearful that if wiretapping and eavesdropping practices were allowed on a widespread scale, we will soon become a nation in fear—a police state. At the hearings this year before the Constitutional Eights Subcommittee it was clearly indicated, whether based upon fact or fancy, we are coming very close to being a nation in fear. All the way from Congressmen, to mayors, to soldiers, to students voiced their fear.-, that they were under surveillance. I am therefore particularly interested in hearing from you directly as to your personal position in regard to wiretapping and electronic surveillance in general as it relates to the fourth amendment, and your philosophical and legal reasons for such position.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, I was asked the same question yesterday by another Senator and I told him that 1 felt having been an advocate for the Department in the matter and being presently in the position of a nominee, it would be inappropriate for me to answer that question. If 1 might add this observation, having headed for a while last year the Justice Department's program of campus visitations and on one of which I had the pleasure of going to the University of Hawaii, 1 could not help but realize from talking to some of the student audiences that there was a very real fear in this area. You made the comment, ''whether based on fact or fancy." My impression from what 1 know about the facts and figures of the Federal Government's wiretapping activities is that it is not based on fact, but as you point out, whether it is based on fact or fancy, it can nevertheless have a chilling effect on one's feeling of freedom to communicate through the telephone and other such means. And my own hope would be that by a campaign of bringing the facts to the attention of the citizenry, of the actually extraordinarily limited use of these mechanisms by the Government, that some of the fear based not on what is actually done but on third and fourth hand accounts of what is done could be put to rest. I regret that I feel it inappropriate to answer your primary question.
Senator Hiram Fong (HI)

()
Senator FONG. DO you feel that the crime bill which we passed has really gone far beyond what you feel we should do in pursuing criminals; that we have really allowed almost an indiscriminate use of wiretapping and surveillance, especially when we go to felonies which do not deal with organized crime or national security?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, that very issue has been decided in two separate district courts and 1 woidd assume is probably on its way through the courts of appeal and ultimately to the Supreme Court. I just do not think it would be appropriate for me to answer.
Senator Hiram Fong (HI)

()
Senator FONG. I see. Now, do you feel that being such a strong advocate of statutes authorizing the use of wiretapping and surveillance you could sit as a Supreme Court Justice to decide on these cases should these cases come before the Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS I suggested 3'esterday in response to a question, having personally participated in an advisory capacity in the preparation of the Government's brief in the national security wiretapping case, and applying the standards laid down in the memorandum prepared for Mr. Justice White when he went on the Court, I would think 142 without obviously positively committing myself that I would probably be required to disqualify myself in that case. Insofar as simply having generally advocated before students, student audiences, or otherwise defended the Government's use of the authority given it by Congress, I believe that I could divorce mj- role as an advocate from what it would be as a Justice of the Supreme Court should I be confirmed.
Senator Hiram Fong (HI)

()
Senator FONG. NOW, I would like to read you amendment IV to the Constitution of the United States: ' 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported hj oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." When it comes to searches and seizures, we have one search and one seizure of particular tangible evidence at one particular time and place and it is over. But when it comes to electronic surveillance or where wiretapping is concerned, it is almost unlimited and it is unlimitable because if you have a wiretap on my telephone or you keep me under surveillance, you are also keeping other people who associate with me or call me under surveillance too and wiretap their conversations as well. Do you see that there is a big difference here?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. There certainly is a difference between a search warrant for particular tangible evidence thought to be located in a particular physical location and a court order for a wiretap, albeit limited in time, for the reasons that you state, Senator.
Senator Hiram Fong (HI)

()
Senator FONG. DO you regard wiretapping and surveillance as very dangerous practices?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think it would be inappropriate for me to answer that question, Senator, in view of my role as advocate. I can certainly say that promiscuous wiretapping I would regard as a very dangerous practice.
Senator Hiram Fong (HI)

()
Senator FONG. Yesterday, I think, a question was presented to you by either Senator Hart or Senator Kennedy to which you replied that the only—I believe you called it "the only proper role" for secret surveillance was in pursuing criminals. I should like to explore with you, what you deem to be such "pursuit" of criminals. One of my objections to the surveillance provisions of the omnibus crime bill was that it permitted the continued surveillance of a person even after indictment, right up to the time of trial. Again, I quote my statement of May 23 as it appeared in the Congressional Record, page 6196, with the paragraphs rearranged to give continuity of thought here. I then said. The purpose of electronic surveillance is to collect evidence in order to obtain indictment. But under the initial bill (and it was so enacted), we would continue to hound the accused—nailing down the case and copper-riveting it by continuous surveillance—even after the indictment is secured. The bill would allow tapping and bugging even after the date of the indictment, right up to the time of trial. . . . to so hound a defendant until the day of trial, after he has been indicted, is abhorrent to our enlightened system of jurisprudence. These are surely police state tactics. 143 I am fearful that if these wiretapping and eavesdropping practices are allowed to continue on a widespread scale, we will soon become a nation in fear—a police state. This is contrary to our Anglo-Saxon traditions of fair play and justice. This is contrary to our most deeply cherished liberty—the right of privacy. Where does your philosophical approach to this pursuit of criminals end so as not to invade a person's right of privacy under the fourth amendment? Would you say that after indictment we still have a right to pursue a person, to eavesdrop on him, to keep him under surveillance right up to the time of trial?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. With the reservations I previously stated, Senator, and with my lack of familiarity with the detailed provisions of the bill which you are describing, I think I must keep my answer general. Certainly any sort of electronic surveillance that would interfere with the lawyer-client relationship of a defendant after he has been charged would be very disturbing.
Senator Hiram Fong (HI)

()
Senator FONG. I am glad to hear that view. At the present time, Mr. Rehnquist, I am studying several reforms of our system of Federal grand jury proceedings so as to assure greater legal protection to persons subpenaed to testify as, and I quote, witnesses on behalf of the Government, with a view to introducing such legislation. Without considering any specific legislative proposal, would you care to express your views on the practice of subpenaing a witness to testify before a grand jury on behalf of the Government when the Government has already produced evidence to that grand jury upon which an indictment is sought against this so-called witness on behalf of the Government? Is not the Government really asking a person to testify against himself in violation of the fifth amendment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, I have had, I think, one grand jury in my life and I am not intimately familiar with the practices or procedures governing grand juries. I would be hesitant to express a view simply from lack of knowledge on that point. My impression from the situation which you describe is that at least in some cases the witness would be adequately protected by the invocation of the fifth amendment. However, I can imagine it being used in a harassing manner also.
Senator Hiram Fong (HI)

()
Senator FONG. But in cases where the witness does not know the nature of the hearing, where he is brought in cold and he is asked questions, when they already have evidence to indict him and they are going to indict him and yet they call him as a witness "for the Government," do you think it is proper for them to subpena him as a witness for the Government and try to get him to testify against himself?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Oh, I certainly do not think any witness should be tricked by the Government. If your question goes further than that, I would have to almost say I would want to see the particular facts.
Senator Hiram Fong (HI)

()
Senator FONG. Then, you would say that if what I have described was the procedure of the Government, it would be trickery on the part of the Government. 144
William H. Rehnquist
Nominee
(R)
Mr. REHNQTJIST. Well, I would want to know a more detailed set of facts, Senator, to say in a particular case trickery was engaged in by the Government. I certainly don't think it should be and certainly the type of situation which you describe could in some circumstances amount to that.
Senator Hiram Fong (HI)

()
Senator FONG. Thank, you, Mr. Rehnquist. The Washington Post on November 3 quotes a Phoenix Democrat as stating that "in terms of legal ability," you are "simply top-notch," that j^our character is "absoluteh" unimpeachable," and that he has no serious doubts that you should be confirmed, but then he is quoted as continuing, and I quote him again: Bill has been an intellectual force for reaction. I do not believe he will put the manacles back on the slaves but I am sure from his point of view it will be more than a pause. There will be a backward movement. In terms of race relations I would expect him to be retrograde. He honestly does not believe in civil rights and will oppose them. On criminal matters he will be a supporter of police methods in the extreme. On free speech Bill will be restrictive. On loyalty programs, McCarthyism, he will be one hundred percent in favor. This type of comment typifies some of the letters that I have been receiving in my office. In fairness to you, Mr. Rehnquist, would you care to comment on this type of statement?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My first comment would be I can defend rrryself from my enemies but save me from my friends. [Laughter.] I think that that is not a fair characterization even of vaj philosophical views. M}^ hope would be if I were confirmed to divorce as much as possible whatever my own preferences, perhaps, as a legislator or as a private citizen would be as to how a particular question should be resolved and address myself simply to what I understand the Constitution and the laws enacted b}T Congress to require.
Senator Hiram Fong (HI)

()
Senator FONG. I believe I am satisfied. Mr. Rehnquist, that you will do just that. Thank you very much.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Cook?
Senator Marlow Cook (KY)

(R)
Senator COOK. Mr. Chairman, ma}' I defer to Senator Scott?
Senator Hugh Scott (PA)

(R)
Senator SCOTT. Mr. Chairman, yesterday 1 reserved the right to offer certain information into the record. I read from it in part yesterday. It was a statement of Attorney General Robert F. Kennedy on the 22d of May 1962, in support of H.R. 10185 which he had caused to be introduced and on which bill he was testifying in favor before this committee. There were a number of other witnesses and fairly length}^ hearings and I will not again revert to the material except the paragraph which has been mentioned by the witness here, that "All Attorneys General since 1940 have been authorized by the President to approve wiretapping in national security cases. Attorney General Claik, with President Truman's concurrence, extended this authorization to kidnapping cases," and that "National security requires that certain investigations be conducted under the strictest security safeguards." I would like to offer that into the record
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN It is admitted. (The material referred to follows.)
Senator Hugh Scott (PA)

(R)
Senator SCOTT. I offer it together with a statement by the former Attorney General Kennedy appearing in an article called "Attorney General's Opinion on Wiretaps." He believes they can and should be regulated with due regard for both law enforcement and the right of privacy. (The material referred to follows:)
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Cook.
Senator Marlow Cook (KY)

(R)
Senator COOK. Mr. Rehnquist, for the benefit of the record I would like to give to the reporter at a later date the remarks that were made by you at a panel discussion on "Privacy and the Law in the 1970's," at the American Bar Association meeting in London. Contrary to some of the remarks that were made yesterday, I do not see here where you become a great advocate for wiretapping other than in the strictest sense under the statute which was passed by the Congress of the United States and which the Justice Department is empowered to enforce. If I may, I would like to read into the record what I think sums up your opinion. Whatever may be the ultimate decision by our highest court on the merits of the question, I believe that a refusal of the Justice Department in its role as advocate before the courts or the executive branch of the Government to vigorously argue in favor of its legality would be a wholly unwarranted abdication of the Department's responsibility. You then go into a discussion of surveillance, not only from the standpoint of wiretapping but also from the standpoint of visual surveillance. In regard to the discussion yesterday relative to probable cause, it is very interesting, I think almost essential, and I think most lawyers in this room would concur, "probable cause for an arrest or specific search is hopefully to be found at the conclusion of an investigation and ought not to be required as a justification for its commencement.'' You said those words then. Do you agree with them now?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, I do.
Senator Marlow Cook (KY)

(R)
Senator COOK. I certainly agree with them also. Getting back to another discussion of yesterday, I feel that great emphasis was made of how you completely and absolutely condoned, and were enthusiastic about, or words to that effect, the Government 154 action in the May Day affair in Washington. Again, Mr. Chairman, I would like to put into the record the speech that Mr. Rehnquist made at Appalachian State University, I might say out of a speech of some 24 pages, the first five and a half pages dealt with a very general discussion of the ability of police departments to function, the ability to formulate a policy in its broadest sense under certain conditions. I find nowhere in here any endorsement of the actions of, or any mention of the police officials in the city of Washington other than the fact that you made reference to the fact that there was a metropolitan police force of approximately 5,000 men and that within the first few hours they had to make no less than 7,000 arrests. Then you allude to what is referred to as qualified martial law. I might suggest I hope you and I both agree that this qualification is nothing new in the law. I have before me a book entitled A "Practical Manual of Martial Law" that was written in 1940 by Frederick B. Wiener, Special Assistant to the Attorney General of the United States. It has quite a dissertation in the field of qualified martial law. Would you tell me what you feel would be a definition of qualified martial law?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Recalling as best I can from Mr. Wiener's book, which I believe is the source of my knowledge on the subject, it is the situation where the force brought to bear against the law enforcement forces is such that the normal procedure of individual arrest and booking and admission to bail and appearance before a community magistrate simply cannot be carried out and in this situation it is my understanding that the courts, including the Supreme Court of the United States in the case of Moyer v. Peabody, have said it was lawful for the Government in that situation to resort to a situation of arrest not on the basis of criminal charge of individual wrongdoing but on a very temporary basis of simply restoring order, and that the process was not arrest in the normal sense and that release was required in a very short order as soon as the serious emergency had passed. That is a short summary of my understanding of it, Senator.
Senator Marlow Cook (KY)

(R)
Senator COOK. And, as a matter of fact, rather than be of the opinion as we discussed yesterday that there may have been either martial law or qualified martial law on that occasion, in your speech in North Carolina you took the position that there had been neither. I quote from page 4, "Indeed if one takes a more extreme situation than that which prevailed in-Washington during the past couple of days," and then you went into a dissertation on qualified martial law. Is that not correct?
William H. Rehnquist
Nominee
(R)
Mr. REHNCUIST. It is correct, Senator.
Senator Marlow Cook (KY)

(R)
Senator COOK. Thank you, Mr. Rehnquist. Thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Mathias.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Thank you, Mr. Chairman. I would like to complete the congratulations to Mr. Rehnquist, and add to my congratulations some acknowledgement of his fortitude and strength. Yesterday as we were adjourning I said I thought the hearing approached a violation of the eighth amendment after he had been on the stand since 10:30 in the morning. 155 But in a sense, Mr. Rehnquist, you brought it on yourself. One of the old political saws of this country, attributed to Calvin Coolidge and to various other politicians, is that what a man does not say can never hurt him. Some years ago you wrote an article in the Harvard Law Record, published in 1959, in which you said: Specifically until the Senate restores its practice of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee, before voting to confirm him, it will have a hard time convincing doubters that it could make effective use of any additional part in the selection process. I think we are perhaps learning from your 1959 admonition. Your history will not be the same as that of Justice Whittaker that you were recounting in which you said, and I further quote: If any interest in the views of Mi'. Justice Whittaker on these cases were manifested by the Members of the Senate, it was done either in the cloakroom or meeting of the Judiciary Committee. Discussion of the new Justice on the Floor of the Senate succeeded in adducing only the following facts, (a) proceeds from skink trapping in rural Kanasa assisted him in obtaining his early education; (b) he was both fair and able in his decisions as a judge of the lower federal court, (c) he was the first Missourian ever appointed to the Supreme Court, and (d) since he had been born in Kansas but now resided in Missouri, his nomination honored two States. I think we can assure you that your case will be distinguished from that of Mr. Justice Whittaker's. NOWT , it seems to me if w T e deal with the appointments to the Supreme Court as one of the highest responsibilities of the Senate, every Member of the Senate must have some concept in his own mind as to what qualifies a nominee for the Court. Certainly basic qualifications are integrity and competency. In these areas I think everything that has been said here in the past day and a half indicates that there is no question as to your integrity and competence. Certainly fidelity to the Constitution, which was mentioned very eloquently by the Senator from North Carolina, Senator Ervin, is another basic qualification. And here again, I think there is no problem as far as you are concerned. In addition, I think every nominee must be in a position to reinforce public confidence in the Court, and certainly in the years immediately ahead the Court is going to be called upon to answer very profound and pervasive social questions. So it must have the respect of citizens in order that their decisions compel public compliance and acceptance. And it is in the area of the decisions of the court in interpreting the unwritten but compelling parts of the Constitution that I think we have to concern ourselves. I would like to address some questions to you on the philosophy with which you will approach the issues—the kinds of issues that may come before the Court. You do not have to answer the questions with any such particularity that you will feel obliged to disqualify yourself either here or there, but answer them only in a general manner. Before you came to the Justice Department, you had in an active civic life expressed your position on a very wide range of issues, especially in 1964 and 1967 on the subject of civil rights. Although we have covered some of this ground, I would like to ask you again whether your views as a private citizen are any different today than they were then. 69-267—71 11 156
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS I said yesterday in response to another question, Senator Mathias, with respect to the public accommodations ordinance, I think my views have changed. With respect to the 1967 letter which I wrote in the context of the Phoenix school system as it then existed, I think I still am of the view that busing or transportation over long distances of students for the purpose of achieving a racial balance where you do not have a dual school system is not desirable.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. It has been said here and elsewhere that your political views tend to be conservative. What effect, assuming this is the case, will this have on you as a judge and, consequently, as a man who should be able to decide cases impartially?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would hope none. I realize that that is the same question I would Avant to be asking a nominee if I were a member of the Senate Judiciary Committee, and I cast about for some way of perhaps giving some objective evidence of the fact, rather than simply asking }T ou to rely on my assurance. I was on several occasions in Phoenix chosen to be an arbitrator between lawyers who found themselves in dispute with respect to particular claims, and I think the reason I was chosen was because there was a feeling that I would be fair, that whatever I might feel about personalities involved or about personal doctrine, I would try to apply whatever law there was to the facts and reach a fair conclusion. I have ahvays felt that, as I think Justice Frankfurter said, you inevitably take yourself and your background with you to the Court. There is no way you can avoid it, but J think it Avas Frankfurter who also said, if putting on the robe does not change a man, there is something AATong AAT ith the man. I subscribe unresenr edly to that philosophy, that Avhen you put on the robe, 3-011 are not there to enforce your oAvn notions as to AAr hat is desirable public policy. You are there to construe as objectively as 3r ou possibhj can the Constitution of the United States, the statutes of Congress, and AA^hatever relevant legal materials there may be in the case before you.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. In the same Harvard Law Record article you quoted, I thought AA^ith some approAT al but I may have read that into it, an editorial from the NeAv York World Avhich opposed Judge Parker's confirmation as Justice of the Supreme Court in 1930. The NeAv York World said editorially: The Senate has every right if it so chooses to ask the President to maintain on the Supreme Court bench a balance between liberal and conservative opinion of the Court as a whole. From what you have just said, I Avould assume that this would make less difference to you today than Avhen you Avrote that article and quoted from the editorial.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is so difficult to pin down the terms "liberal" and "conser\-ative," and I suspect they may mean something different Avhen one is talking about a political alinement as opposed to a judicial philosophy on the Supreme Court. I think it would be presumptuous of me to suggest to the Senators on this committee, or to the Senate as a Avhole, AA'hat standards they ought to look for, but I cannot think of a better one than fidelity to the Constitution and let the chips fall Avhere they may, so to speak, whether the particular decision pleases one group or pleases another. 157 I think to an extent in discussion about the Court there has been a tendency to equate conservatism of judicial philosophy not with a conservative political bias, but with a tendency to want to assure one's self that the Constitution does indeed require a particular result before saying so, and to equate liberalism with a feeling that at least on the part of the person making the observation that the person tends to read his own views into the Constitution. I think the difference is well illustrated by Justice Frankfurter's career, who came on the Court at a time when I think it was clear to most observers that the old Court of the nine old men of the twenties and thirties was indeed, on any objective analysis, reading its own views into the Constitution, and Justice Frankfurter, of course, prior to his ascent to the bench, had been critical of this, and as a Justice he helped demolish the notion that there was some sort of freedom of contract written into the Constitution which protected businessmen from economic regulation. And yet, when other doctrines were tested later in the Court, it proved that he was not simply an exponent of the current politically liberal ideology and reading that into the Constitution. He was careful to try to read neither the doctrine of the preceding Court nor perhaps his own personal views at a later time to the Constitution, but to simply read it as he saw it.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. In an effort to get at this question of judicial philosophy, maybe we ought to look at some specific areas of the Constitution which would necessarily, I think, be embraced in a judicial philosophy, but which due to their very nature are not susceptible of strict construction: Words such as "unreasonable" in the fourth amendment, "excessive" in the eighth, "due process" in the fifth and fourteenth amendments. I think these are areas which refer to rights which are not clear and absolute so that they have to be qualified and interpreted in protecting the freedoms and privileges, assessing the liabilities that the Constitution addresses itself to. What would you consider, for example, to be reasonable searches and seizures as contemplated by the fourth amendment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, I honestly think that is too specific a question for me to answer. I know there are several cases pending up there now and I would anticipate that there would be a number in the future.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Would you feel that you could give the committee your ideas on what you think excessive bail would be? Some broad definition which you could apply the word "excessive" to.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I do not believe I ought to, Senator.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Well, I am not trying to put you in a position where you would prejudice your usefulness to your colleagues in the future, but I think this question may be important in the future as to which defendants or classes of defendants would be suited for bail. This is an area which would be of concern to the Senate, to the courts, and to the country. What about due process?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I just think it would be inappropriate for me to try to now advance some sort of definition of a term which may well, if I were confirmed, come before me and on which I would hear argument and read briefs and have the benefit of discussion in the conference room. 158
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. In August you were in Alabama, and you said then, and I am now quoting from your speech: The purpose of the guarantee of freedom of expression in our Constitution is not to assure everyone the same opportunity to influence public opinion, but to assure that any conceivable view on a subject may be advocated by someone. I must confess that particular expression of philosophy gives me some concern for one practical consideration. I am wondering who would appoint who to express a particular viewpoint. Mr. KEHNQUIST. I think what was meant, Senator, was Senator MATHIAS. This may, in taking it out of context, distort it, but
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO. I do not think it really does distort it. I think what was meant was that the guarantees of the first amendment do not mean that everybody is going to be provided with a printing press in order that they can have their own newspapers, but instead that anyone who has a newspaper is going to be permitted to say whatever he thinks.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Well, I agree with you; however, I had not read that from that quotation. I think we want to do the best job we can in eliciting for the other Members of the Senate, who are not members of this committee, and the public, a profile of your judicial philosophy. You yourself suggested it is our duty. I may want to come back to some of these questions, but for the moment, Mr. Chairman, reserving the right to further questions, I will pass.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Gurney?
Senator Edward Gurney (FL)

(R)
Senator GURNEY. Thank you, Mr. Chairman. I want to echo my colleagues in congratulations to you, Mr. Rehnquist, on this great honor, your nomination to the Supreme Court. I do not think, Mr. Chairman, that I could add anything by way of questioning of the witness. I think his judicial philosophy has been thoroughly explored. I think President Nixon is to be highly commended and congratulated for having sent the name of Mr. Rehnquist here for confirmation. I think his qualifications speak for him in a very clear and resounding tone. He is exceptionally well-qualified for appointment to the, High Court, and I think he will add luster to his proper role, that is, an administration being one of law and not of men. In my view, the time is long overdue for the Supreme Court to exit from the role of lawmaking and return to its proper role of law-interpreting. Thomas Jefferson, perhaps the greatest of the Founding Fathers, certainly had as much to do with the shaping of our Republic as any one man. He had great reservations about the judicial branch of Government. Here are some of the things he said about it. One quote: The Constitution is a mere thing of wax in the hands of the judiciary. Another quote: A great object of my fear is the Federal judiciary. Another one: It has been long my opinion and I have never shrunk from its expression that the germ of dissolution of our Federal Government is in the Constitution of the Federal judiciary. 159 I think if Jefferson were a member of the Committee on the Judiciary today, and had listened to the answers of Mr. Rehnquist concerning his understanding of the proper role of the Supreme Court, I think that Mr. Jefferson would be reassured and I firmly believe that a majority of the Nation's people also share that feeling. I think Mr. Rehnquist's appointment will help restore confidence to the people in the Court, a state of mind that is badly needed and long overdue. I have no questions.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Kennedy?
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Mr. Rehnquist, I also share this feeling, which I think you have become very much aware of during the last day, about the difficulty of trying to get some better kind of handle on your personal philosophy and concerns and commitments. Senator Hart pointed out yesterday that the Constitution of the United States as it was written and drafted never anticipated many of the challenges which are presented to our society. I think you have gathered from the questioning that for us, attempting at least to resolve in our own minds how you approach these problems, not how you are going to decide them but how you are going to approach these problems, is terribly important for preserving the institution of the Court. My colleagues and I have asked you many questions in the areas of separation of powers, due process, equal protection, free speech, and so forth. As you pointed out so well in your article in the Harvard Law Record these are legitimate areas of inqury for us. I think you have been extremely cautious and guarded in your responses in these areas for those who are interested in how you are going to approach these questions. You have indicated that you are going to attempt to put your political philosophy behind you and that you are going to assume a new kind of a responsibility when you take on the robe. I think what I am interested in is, what are the various kinds of factors in your own philosophy that are going to help you make objective decisions? Of course, as was brought out yesterday by Senator Ervin and others, you are part of all that you have met, and this has been something which I know has troubled me in trying to bring out a greater degree of responsivemess from you. You mentioned the role that Justice Frankfurter played in going on the Court with those remaining from the "nine old men" and the fact that he was perhaps a judicial conservative and that maybe the "nine old men" had been superimposing their own political philosophy on the Constitution. Well, you know, what were those factors which so distressed you in the exercising of their political philosophy? How do you distinguish between Frankfurter's temperament as compared to those who had been making the decisions at that time?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would say that the series of freedom of contract cases, Lochner v. New York, Adkins v. Children's Hospital, by the objective judgment of historians, represented an intrusion of personal political philosophy into constitutional doctrine which the framers had never intended, and that Frankfurter had criticized that from the outside of the Court. It was not entirely clear until he had 160 been on the Bench whether the basis for his criticism was that he did not want laws like that held unconstitutional or whether it was that he felt there w T as no constitutional warrant for invalidating them, and I suppose you never know about an advocate until he does get on the Bench because it is only then that he is put to the test. But the test came for him, I suspect, not so much in those cases but in other cases which later came before the Court, where he had great personal reservations, I suspect, about what was being done but, nevertheless, felt that the Constitution did not prevent it.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, as you believe that imposing personal views was the problem when Justice Frankfurter came to the Court, and as historians have made the same judgment, would you make the same criticism of the Warren court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Could you spell out the question a little more?
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. The "Warren court," as a phrase, is generally associated with protection of liberties and rights and, as you are prepared to comment on your interpretation and other historians' interpretation of the Court which Frankfurter found as superimposing its views, would you be as quick to feel that the Warren court was following the Constitution or interpreting or were its Justices superimposing their views?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, trying to keep it in the terms of historical analysis rather than my own estimate of how I would decide something, I think Justice Frankfurter's behavior while he was a member of the Warren court is some indication at least of his agreement with them in some areas and disagreement in others. He joined the unanimous decision in the school desegregation cases. He dissented from some of the cases involving the rights of criminal defendants.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, of course, that was not my question. You felt and you have stated here and you have referred to legal historians feeling that the Court in the 1930's was superimposing the Justice's personal philosophies rather than objectively applying the Constitution—you made that judgment or recognized the legitimacy of that judgment—I am wondering whether you would make that same judgment about the Warren Court.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, it is much easier to make a historical judgment with at least a degree of confidence about decisions that were handed down over a period of years from 1905 to 1935 than it is with respect to a Court whose decisions are handed down from a period of 1953 until 2 years ago, if that is what you mean by the Warren Court, and therefore I think there is a great deal of difference in the confidence with which one can say history, in the sense of legal historians objectively evaluating it, has said that the so-called nine old men were wrong, at least a majority of them were wrong, in reading in freedom of contract. I do not claim to be a keen student of legal historians analyzing the Warren Court. I would think that in the area of the Warren Court's criminal law decisions there probably is not the same consensus as to legal historians at the present time.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, maybe it is more difficult to make a judgment now than looking back over the earlier part of the century. But that is what I am asking of you as a student, not with reference to any 161 specific kind of case evaluation, but since you are prepared to make of the nine old men the judgment that they were superimposing personal judgments rather than following the strict letter of the law, I am interested in your judgment whether you would feel that the Warren Court had done the same.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, w T hat I am giving you is my understanding of a historical consensus, and
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Would you agree with that historical consensus?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, on the freedom of contract doctrine I think I would agree. I think the historical consensus, because of the recency of the Warren Court's decision, is less firm, partly for that reason. I think there is substantial historical consensus in accord with the Brown versus Board of Education decision. I think that in the criminal law area, it is my understanding that there simply is not that sort of consensus. Whether it is from lack of time to develop or from disagreement
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. I am not asking you to tell me what the historians are going to say. I am interested in what your feeling is. I am not saying can you predict what historians are going to say about this period or what others are going to say about it. I was interested in how you regard it.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I certainly would not set myself up to make some sort of sweeping generalization about the Warren Court which sat from 1953 to 1969.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, you were prepared to do it about the nine old men.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I was prepared to do it in the sense of a very specific doctrine that was enunciated over a period of years from about 1905 to 1935.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. There would be those who would say that the Warren Court is also recognized for particular doctrines in terms of individual rights and liberties as well. Would you not agree with me on that, that there are some very relevant cases, lines of cases, flow of logic, flow of decisions as well on very particular areas, especially the rights of the accused and civil rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly the Warren Court was known for those types of cases; yes.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Could you give me your evaluation in those areas? You are prepared to do it in other
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have given you my evaluation in terms of my understanding of a historical consensus. I wrote publicly on two cases decided by the Warren Court in 1957 or 1958. That was on the basis of making a reasonably careful study of the cases and the precedents and coming to a conclusion. I certainly would not attempt to categorize all streams of cases without having had some opportunity to research the precedents, even from a historical point of view.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. And you are not prepared to say that the Warren Court was making decisions based upon personal philosophy rather than the Constitution?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO. I am not prepared to say that. 162
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Again in terms of the responses in the areas that we have covered, albeit briefly, will respect to wiretapping, the May Day demonstrations, preventive detention, the investigation of dissidents, you have indicated time and again when asked questions in these areas that you were—and correct me if I misstate your view on this—that you were presenting a view as an advocate and therefore, were presenting the view of the Department, but if you found any of these views to be personally obnoxious, you would not have stated them or would not have testified on those or made those comments, speeches. Is that
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is substantially correct, yes.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. YOU see, I think we then have to take those statements or comments pretty much as the basis for your views, since I think you have been generally reluctant to develop them to a great extent in the course of this hearing. And we have to place that against the background of the experience, for example, that there were a number of men during the course of this administration—Leon Panetta, Secretary Hickel, Terry Lenzner, perhaps even Cliff Alexander, a number of others within the administration, who for one reason or another separated themselves from the administration on the basis of strongly held views covering a wide variety of different issues. But you never felt constrained to do so, I would gather, at least on the basis of what you have commented on here so far.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO I am still here.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. And to that extent, 1 guess, we have to value the representations that you have made in these areas in the past really to be your views.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 do not think that is an entirely fair statement.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, could you give us some idea which statements represent your views and which don't? That is all we are asking, Mr. Rehnquist, if we can. We have all of us been fencing around on this. I know we would be interested in what help you can give us.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I know we have. I think it would be inappropriate in an area where I have acted as an advocate to express a personal view. I realize that leaves you in an unsatisfied position, but I do not feel I can do otherwise.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, then, help us—what kind of questions do you think we ought to be asking you to fulfill our duty according to your Harvard article, if we are to perform our roles as you think we should, and we are running up against this kind of situation? You help me.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am simply not able to.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Birch?
Senator Birch Bayh (IN)

(D)
Senator BAYH. I think I expressed yesterday similar frustration, realizing that the responsibility that you must meet as a prospective nominee, as a part of this administration, as an adviser of the Attorney General, as a participant in many ways, an advocate, comes head-on with the responsibilities we have and it is not an easy problem to resolve. I tried your patience for well over an hour yesterday and will not do so today. 163 Let me just touch on two or three areas, two or three points that might clarify a bit the questions asked yesterday. 1 notice in looking at the various rights that were discussed yesterday, and 1 have not had a chance to look at all the transcript, but a summary of them, one area of rights that is very much in discussion today that was not touched upon yesterday is the rights of women citizens in this country. You have been asked to testify and have testified relative to EEOC cease and desist orders and this type of thing, so I will not ask your opinion on that. The administration, so far as I know, has not taken a position, despite my efforts as chairman of the Constitutional Amendments Subcommittee, has not taken a position before the subcommittee relative to the importance of the equal rights for women amendment. But my staff tells me you have testified in favor of it. Is that right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I testified before the House Judiciary Committee.
Senator Birch Bayh (IN)

(D)
Senator BAYH. In favor of the amendment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I have been unable to get •
Senator Marlow Cook (KY)

(R)
Senator COOK. Senator, we now have another man on our side, another advocate.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I am almost afraid to ask him whether this is the administration's view or his personal view. Is that a fair question that I dare?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think I must refrain from answering.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let me phrase the question a little differently. Senator Cook and I have been trying to help, to lead the charge in this area, so we perhaps do not come as totally unbiased Members of this body. To date the Court has not yet looked upon women as full citizens under the 14th amendment. Would you care to offer a personal opinion about how women should be treated under the 14th amendment?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think that, if I may speak with extreme generality as I feel is required, that
Senator Birch Bayh (IN)

(D)
Senator BAYH. May I interrupt just enough to say you know there are now two specific cases before the Supreme Court, and I will not ask you at all to deal with either one of those. So perhaps I should wave that red flag.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly the equal protection of the laws clause in the 14th amendment protexts women just as it protects other discrete minorities, if one could call women a minority.
Senator Birch Bayh (IN)

(D)
Senator BAYH. One should not.
Senator Marlow Cook (KY)

(R)
Senator COOK. Not even discreetly.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Can you cite us a case, Mr. Rehnquist, where the Court has ruled that discrimination against women is a violation of the constitutional rights?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO. I think the Court has been quite unwilling—in tliat Michigan bartender case decided about 1940 or 1949, they held that a limitation on a right of women to tend bar, as I recall, which was a fairly stringent limitation, nonetheless was not a violation of the equal protection clause, and it seems to me that there is one other case which I do not recall in which they also held something claimed to be a violation of equal protection clause was not one. 164
Senator Birch Bayh (IN)

(D)
Senator BAYH. I do not know of a case where women have been described as persons under the 14th amendment. Does it strike you as rather inequitable to say that it is constitutional to prohibit women from serving liquor behind the bar, but all right to have them serving it in front of the bar to patrons?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that is one of the issues in one of the cases that is up there now.
Senator Birch Bayh (IN)

(D)
Senator BAYH. All right. I do not think it is, but that is neither here nor there. I can see why you might not want to answer that. Let me just try once again to be a bit more definitive, or get you to be a bit more definitive, in a couple of the areas we discussed yesterday because I think this is critical to us in trying to determine in our own minds whether you meet the test that you indeed set for yourself. Do you believe this is a constitutional right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU stated that yesterday. Do you concur in the general concept related in Oriswold v. Connecticut back in 1965 as the way they describe this right, the broad basis of it?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think it is not appropriate for me to get any more specific. To say whether I agree with the doctrine of a particular case or not I think would be entirely inappropriate for a nominee.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, if I read specific passages or sentences without relating them to a case, could I then ask if you concur in that general philosophy or
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU mean as a matter—do I think it philosophically sound in accordance with my own personal notions?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I will certainly try to answer that, with the understanding that this is not the same thing as saying that the Constitution so provides.
Senator Birch Bayh (IN)

(D)
Senator BAYH. We have had a great deal of discussion here both from you and from some of us relative to where the Constitution enters and where one's personal views enter. It seems to me that it is impossible for any human being not to let his personal views interfere or intervene in some way as he brings the Constitution into focus on a given problem. You think personally, do you, that the right to privacy is important?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes.
Senator Birch Bayh (IN)

(D)
Senator BAYH. It is an important right? You see, where I have concern is that the way I understand what you said yesterday, and let me just try to paraphrase it and you tell me whether I am right or wrong, that you feel personally that there are a number of instances in which—many of them discussed yesterday—bad government policy involving an invasion of individual right to privacy is nevertheless not in violation of an individual's constitutional rights. Is that an accurate paraphrasing of your feeling?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That was the view I took in the testimony I presented to Senator Ervin's committee on behalf of the Justice Department.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, but is that your personal view? You as an individual? 165
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My personal view as to whether something that may be bad government policy is nonetheless not unconstitutional?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, let me use specific questions, either identical to or similar to ones I thought we dealt with yesterday. For example, let's take a peace rally on the War Memorial steps in Indianapolis, Ind., totally peaceful. A speech is being given, a speech is being read. Policemen are taking pictures of everyone there. There are no threats or signs of violence at all. Now, do you believe that that is a violation of the constitutional rights of those present to have this type of thing continuing to happen?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that calls for a judgment on the very specific factual situation.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, do I need to be more specific than the specifics I just related—totally peaceful, no threat of violence, no unruly mob, and yet the crowd was adequately dispersed by law enforcementofficials taking pictures with the supposition that dossiers are being compiled on those there, or that the material gathered, pictures gathered, were being put into dossiers already compiled?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that calls for a constitutional judgment on the very specific sets of facts and I do not think I ought to give it.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. We will recess now until 2 o'clock. (Whereupon, at 12:25 p.m., the committee recessed, to reconvene at 2 p.m., the same day.) AFTERNOON SESSION The CHAIRMAN. Let us have order. TESTIMONY OF WILLIAM H. REHNQUIST—Resumed
Senator Birch Bayh (IN)

(D)
Senator BAYH. Mr. Chairman, inasmuch as Senator Hart is senior to me, and he has some conflicting hearings involving a problem in his own local community today, his State, which makes it impossible for him to be here right now, ma}T I have permission to read three questions for Mr. Rehnquist and ask him to respond to these as if they were asked by Senator Hart?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Of course.
Senator Birch Bayh (IN)

(D)
Senator BAYH. IS there any objection to that, Mr. Rehnquist?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. None at all, Senator Bayh.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I don't know that I can read these as concisely as Senator Hart: Mr. Rehnquist, yesterday you testified at great length, with great patience, on a variety of matters. I do have a few questions I would like to ask, not to belabor any of the discussions yesterday, but to try to refocus a bit on some of the fundamental concerns I have. Senator Bayh and Senator Tunney have already asked about your opposition to the Phoenix civil rights order of 1964 and I appreciate you indicated your views on the merits and on that one you had changed. Here is still what is on my mind: Yesterday when we talked about the role of a Justice in co/istitutioi al litigation, I think you agreed with me that those clauses promising due process and equal protection of the law in Learned Hand's phrase of "majestic generalities" which require interpretation with the aid of history and 166 precedents. President Nixon has recognized the importance of judicial interpretation ii. the field of civil rights. When he accepted his party's nomination in Miami in 1968 he said, "Let those who have the responsibility for enforcing our laws and our judges who have the responsibility to interpret them be dedicated to the great principles of civil rights." I agree. The President's promise is particularly critical in the case of our highest tribunal. One thing that has troubled me is whether your record can fairly be said to reflect the dedication "to the great principle of civil rights" of which President Nixon spoke. What have you ever done or said that could help me on that concern? That is the first question. I will repeat the question: What have you ever done or said that could help me on that concern?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that there are some paragraphs in my Houston law day speech which recognize the great importance of recognition of minority rights, that the progress is not as fast as we would like and that more remains to be done. I am trying to think of some other public statement that may contain similar—well, you know, I am just going back through isolated passages in public statements.
Senator Birch Bayh (IN)

(D)
Senator BAYH. If I might just interpolate a bit, and perhaps this is an interpolation that Senator Hart wouldn't want me to make, but have there been things that you have done—it doesn't necessarily mean }'ou have to have said them—relevant to the committee inquiry? You mentioned one in response to the question I asked yesterday relative to your change in opposition to the equal accommodation ordinance. I think Senator Hart's question could reasonably be interpreted as an expansive question, not limited to particular things you may have said in speeches.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I am trying to think through, perhaps going backward from the public remarks I have made in the Justice Department. I think in my so-called New Barbarians speech I made the statement that the people who lie on railroad tracks to prevent the carrying out of the laws stand on exactly the same footing as a Southern Governor who stands in the schoolhouse door. Now, this may not indicate anything more than a statement on my part but it certainly indicated that I have, long before my nomination to the Supreme Court was made, felt strongly that the law of the land should be carried out in every part of the country and that resistance to it, whether in the name of interposition or something else in the South, or whether in the name of consciencious objection somewhere else, couldn't be tolerated.
Senator Birch Bayh (IN)

(D)
Senator BAYH. May I suggest in the capacity which you hope soon to hold that it is a bit more than carrying out the law that Senator Hart asked your opinion on, but how you view the purpose of the law, the interpretation of the law in a general term, not just carrying it out. Once the Supreme Court has decided, it is one thing to say you shouldn't stand in a schoolhouse door. That is a ministerial function; but the point, it seems to me, that Senator Hart's question is directed to, is as to whether that decision should have been made in the first place because of its effect on human rights. If that is not a fair interpretation, let's just go to the question.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Justice Miller, I think, made the statement in the slaughterhouse cases that in his opinion the principal import of the post-Civil War amendments was to benefit the Negro race. 167 I have always felt that was contemporaneous construction and a sound one of those amendments.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I am willing to let that stand if you are.
William H. Rehnquist
Nominee
(R)
Mr. REHNQTJIST. I am.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The second question from Senator Hart is: Coming back one more time to your view of the Court's role, I have a further question relating to our discussion yesterday about the need for judicial interpretation. My impression is, and please correct me if I am wrong, that you responded to Senator McClellan yesterday that you agreed that the Court should not reinterpret the Constitution to bring it up to date, so to speak? I would like to explore that. I understand you support the decision in Brown versus Board of Education. By your view of the Justices' role, how would you justify the Court's departure from Plessy versus Ferguson and subsequent decisions, when they were overruled in Brown?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think I would justify it in this manner: that presumably the nine Justices sitting on the Court at the time that Brown versus Board of Education came before them canvassed, indeed they canvassed to such an extent that they set the case down for reargument on specific issues, deeply canvassed the historical intent of the 14th amendment's framers, the debates on the floors of Congress, and concluded that the Court in Plessy against Ferguson had not correctly interpreted that. Now, that seems to me a very proper role of the Court. Precedent is not sacrosanct in that sense. Due weight has to be given to the Justices of an earlier day who gave their conscientious interpretation, but if a recanvass of the historical intent of the framers indicates that that earlier Court was wrong, then the subsequent Court has no choice but to overrule the earlier decisions.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Are you aware that probably few cases in history have provoked louder cries of anguish from some members of this committee than Brown versus Board of Education and that there is probably not a better example that they would use to support the contention that you should not support "lawmaking" as a Supreme Court judge as symbolized in their minds in Brown versus Board of Education?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Of course, I do not support lawmaking as a Supreme Court judge; but as I stated yesterday, if nine Justices, presumably of the same varying temperaments that one customarily gets on the Supreme Court at the same time, all address themselves to the issue and all unanimously decide that the Constitution requires a particular result, that, to me, is very strong evidence that the Constitution does, in fact, require that result. But that is not lawmaking. It is interpretation of the Constitution just as was contemplated by John Marshall in Marbury versus Madison.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I suppose Senator Hart asked the question to ask you to examine that historically, now looking back on Brown versus Board of Education. Does an individual judge in making a determination as to whether there should be a dramatic change—is it his responsibility to count the number of votes or to determine whether that change should be made? I am sure you would say it is the latter?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Count the number of votes where? 168
Senator Birch Bayh (IN)

(D)
Senator BAYH. In other words, you suggested in response that such a dramatic change would not be just bringing the Court up to date, in spite of strong precedents, when nine judges get together and feel this way. It seems to me at the time that is not relevant. At the time they don't have that decision before them. They have to determine whether precedents before are to be sustained or whether a significant change in Court interpretation should be made. And thus 3011 have to use broader philosophical reasons, it seems to me, than the one you just gave, if I may say so.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. IS the thrust of your question the idea that I was suggesting that unless all nine of them agree, none of them should have voted to overrule Plessy versus Ferguson! m
Senator Birch Bayh (IN)

(D)
Senator BAYH. NO. I was trying to get a better idea of what situations would have to exist at the moment \^ou might be called upon to make a dramatic reversal such as Brown versus Board of Education to compel you to make that. The fact that you fall back on, the strong precedent of a nine Court decision that has been sustained over a period of years, is irrelevant at the moment that a decision must be made in the first place to chart a new course or reinterpret old law.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I don't think you would ever say that a unanimous decision of the Supreme Court is irrelevant in determining a case before }T ou as a Justice of the Supreme Court. I think one would approach a unanimous decision, particularly one that has been reexamined and reaffirmed, with the greatest deference. That doesn't say you never decide otherwise.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let me try to phrase the question again because apparently I have done it very poorly. At the time Brown versus Board of Education came before the Court, there was no nine to zero vote in support of Brown versus Board of Education. I am asking you, and I think what Senator Hart is trying to do is to ask you, to put yourself in a similar situation, not on that particular case necessarily but to discuss with us what circumstances you feel generally need to exist before 30U as a Justice would feel that you could overturn such a strong precedent as that which had existed under Plessy versus Ferguson.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, an examination into the intent of the framers of the 14th amendment. If you became convinced that the Plessy Court had not properly interpreted that intent, that it had simply adopted a view that was too narrow to be consistent with what the framers of the 14th amendment intended, then I think you would be entitled to disregard Plessy. Again, an 8-to-l decision is not one lightly to be disregarded, but nonetheless, if upon reexamination giving the weight that you ought to give to a precedent it appears wrong, then it is wrong.
Senator Birch Bayh (IN)

(D)
Senator BAYH. IS it possible that in addition to making the determination that the previous Court had been wrong, one could come to the conclusion that certain circumstances had arisen in the interim which made the previous decision unable to accomplish the purpose that the Court sought to accomplish?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I suppose one is entitled to take into account the fact that public education in 1954 is a much more significant institution in our society than it was in 1896. That is not to say that 169 that means that the framers of the 14th amendment may have meant one thing but now we change that, but just that the rather broad language they used now has a somewhat different application because of new development in our society.
Senator Birch Bayh (IN)

(D)
Senator BAYH. One of those new developments is the very thorny thicket of busing, and you have mentioned twice now that you are opposed to busing children over long distances for any purpose. "Long distances" is a significant qualifier that perhaps you could get most of us to agree with you on, but unfortunately that is not the case before us on most occasions. Let me ask you this: Do you feel that busing is a reasonable tool or a worthy tool or that it is a useful instrument in accomplishing equal educational opportunities, quality education for all citizens?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have felt obligated to respond with my personal views on busing because of the letter which I wrote and I have done so with a good deal of reluctance because of the fact that obviously busing has been and is still a question of constitutional dimension in view of some of the Supreme Court decisions, and I am loath to expand on what I have previously said. My personal opinion is that I remain of the same view as to busing over long distances. The idea of transporting people by bus in the interest of quality education is certainly something I would feel I would want to consider all the factors involved in. I think that is a legislative, or at least a local school board type of decision.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Fortunately or unfortunately, that probably will reach the highest court and that is why it is a matter of concern to you and a matter of concern to us.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, there is no doubt of that.
Senator Birch Bayh (IN)

(D)
Senator BAYH In the Phoenix educational climate that existed at the time you wrote the letter to the editor, did you have some schools that were inferior to others in the Phoenix school corporation?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am not sure that I know that much about the various schools in Phoenix at the time to answer that.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, you apparently knew enough about them to be opposed to the program that was suggested by the superintendent of schools. The reason I ask that question is that it is conceivable to me that the reason for busing was to make more equal the educational opportunities in schools that were unequal at the time.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I will stand on my earlier statement that the busing over long distances to achieve racial balance which many might think also contributed to quality education was a burden that the schools in Phoenix as they existed at that time should not have to bear.
Senator Birch Bayh (IN)

(D)
Senator BAYH. DO you feel a school board has the responsibility to provide equal quality education in all segments of the community? Is that a reasonable goal?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Oh, certainly.
Senator Birch Bayh (IN)

(D)
Senator BAYH. What docs a school board do about the inconsistencies that exist in many of our communities, some of which I represent, in which there is strong opposition to busing, and yet equal opposition to a tax plan or a financial plan which would upgrade inferior schools that exist within the school corporation? 170
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, I think that goes beyond the bounds of simply my present view as to the comments I made in 1957 and since it is so obviously something that could come before the Supreme Court, I don't think I ought to answer it.
Senator Birch Bayh (IN)

(D)
Senator BAYH. It seems to me that would be the purpose of the whole program espoused in Phoenix at the time, not just to say that you had x percentage of Chicanos and Blacks sitting in your classroom, to provide quality education. That is Avhy I think the question is meaningful in terms of your original opposition. It is too easy simply to oppose busing over long distances, which is a very inefficient way to provide educational opportunities. I would concur with that. But to suggest that that is the only reason for busing, the only way it can be utilized, I think is not consistent with the facts.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think I will stand on my earlier statement.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The third question from Senator Hart: Returning to the May Day demonstrations, Senator Hart wants to follow up on one point Senator Kennedy raised yesterday, leaving aside the question of whether sweeping arrests were made without probable cause, the second point is that because a decision had been made to dispense with even the field arrest procedures, it soon became clear to most observers that the overwhelming bulk of the arrestees couldn't possibly be prosecuted. There was no proper means of indicating who had arrested them or for what offense or in what location. In fact, random assignment of officers as the arresting or complaining policemen was made at the District of Columbia stadium for a number of the arrestees. Didn't it concern you sufficiently to speak up about it and even after it had become clear they couldn't be lawfully prosecuted, many youngsters were still detained in deplorable conditions and after release their cases were not dropped until the prosecution was in effect kicked out of court by the U.S. court? Didn't that bother you at all?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I have to assume it is a hypothetical question, although some elements have certainly been demonstrated to the satisfaction of the local courts here. I think some of them are assumptions. But speaking to it as a combined factual and nypothetical question, I did not make any effort to intervene in the matter after the turmoil for two reasons, I suspect: One is that the Office of Legal Counsel is basically an advisory branch of the Justice Department. The operational divisions—the criminal division, civil rights division, internal security division—are the people who handle things in the courts and in this case, as a matter of fact, I think it was the District of Columbia Corporation Counsel and the U.S. attorneys who were handling it. The second thing is that, as I recall, my last day in the office before I was down with this back trouble was sometime around May 8 or 9, and I was simply incapacitated from that time until early June.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Senator Hart wanted me to make one final comment for him in which he apologizes to you, Mr. Rehnquist, and to the committee, for not being able to be here personally this afternoon to hear the answers to these questions. He said: I thought they were important and I will study the record for the replies. Now, let me, if I may, go back to where we were before we all had a much needed break for lunch. 171 It has been my opinion, and I am sure that I am not alone, that you have done a very honest and articulate job of fielding the questions that have been posed. I have felt that you have handled them sincerely and I hope that you feel that we have asked them with equal sincerity. It seems to me we are on the horns of a real dilemma, one that I am sure you recognize. You in your writings in the Harvard Law Record suggested that you felt that the nominee's philosophy is ground that should be considered, a subject that thsould be considered bj the Senate, on a Supreme Court nominee. The President, as few presidents have done before, stressed stronghT at the time your name as submitted publicly that it was because of your philosophy and the philosophy of Mr. Powell that you were chosen. That was a compelling reason, that you are a judicial conservative. Before we were told the goal was for a strict constructionist. It has been difficult and perhaps meaningless to try to find any definition of those terms, but what the man himself believes. Because of the responsibility you have had, and it has been a significant one, at Justice Department, you felt compelled not to answer questions covering your own personal views on issues, respecting judicial philosophy, for several different reasons. I would like to try to define these reasons to see if perhaps there isn't a way that we can deal with the responsibility I feel you have and I sense that you feel that you have, and the committee has, to try to explore in more detail what you really feel about some of these important fundamental issues. You indicated that j^ou felt it improper to give us your personal views with regard to certain matters where you have been involved in the Justice Department's activities, including in a number of cases refusing to answer questions on the grounds that you have been the Justice Department's official spokesman regarding these subjects either before congressional committees or in making public speeches at universities and other forums. Could you tell us once again why do you feel, now that you are a Supreme Court nominee, hopefully soon to leave the executive branch, you still feel it is improper to give us your personal views, your personal views on these matters of concern?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think that it is a generally applicable principle in the lawyer-client relationship that the lawyer does not express his personal view as to the merits of the client's case. I think that that has added applicability here because the effect, assuming that there were some areas in which I disagreed with the position I have publicly taken for my clients would be disadvantageous to them. For that reason I certainly don't feel I can simply answer in areas where I may be in agreement and say "No comment" where I am in disagreement, since the obvious implication would be that where I say "No comment" I am in disagreement; and I think this is less than fateful advocacy on the part of a lawyer toward his client. Now, I realize that this puts the committee in something of a dilemma. I don't know that it is much different than that posed by the position of other nominees who have come here, but at any rate I am simply unwilling now, even though I may be a Supreme Court nominee, to foresake what I conceive to be my obligation to my clients. 69-267—71 12 172
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU see, I appreciate and respect that. I was asked by some of the members of the press if I felt that anyone who espoused radical views that you have articulated should be kept off the Supreme Court and I said that frankly I didn't know whether you held radical views. I felt that radicals, left and right, would not benefit the Court, and I thought some of the views that you had espoused could be interpreted by me as radical but that 3*ou are interpreting them as part of the Justice Department philosophy. This depending on the Government's selfrestraint, this whole business, I feel is very bad. And thus—let me see if there isn't a way to break this log jam. You feel ve ^ strongly about the attorney-client relationship, not only that this would be adverse to the client if you took a contrary position to your client's, but I suppose more basically the common law tradition of not disclosing matters of privilege that are shared by 3*011 and j^our client. Is that accurate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Both are certainly involved in many of the cases.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, who is your client?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. My clients are the Attorney General and the President.
Senator Birch Bayh (IN)

(D)
Senator BAYH. AS agent for the entire United States, I suppose, right?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well
Senator Birch Bayh (IN)

(D)
Senator BAYH. In essence your client is the United States and
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO. That, Senator, I regard as a great oversimplification. Certainly as to the President, if one conceives him to be a client and have a law3T er which I don't think is the happiest expression of that relationship, he is, for all practical purposes, a popularly elected executive who is responsible to the Nation as a whole every 4 3T ears for an electoral mandate. The Attorney General is the President's appointee. He is responsible to the President. I am the President's appointee to a position where I am responsible both to the Attorney General and to the President.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. I think if you took the position that the whole American people were 3^our clients that 3"ou would be fired and you should be fired.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I would just as soon not comment on that profound statement.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Would the Senator allow a comment from the Senator from Nebraska?
Senator Birch Bayh (IN)

(D)
Senator BAYH. I will be happ3~ to.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Thank you. Perhaps there isn't such a thing as anyone who represents all the people in America, either as a client or as a public official or in any other wajT ; but isn't it true, Mr. Rehnquist, that anyone who represents the President as counsel is representing the man chosen to represent all of the people? As such it is important that he receive the best and most complete legal advice possible. And of necessity much of it must be confidential and bound by the attorney-client privilege.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly the President is the closest thing in a Republican form of government that may be typified as representing the people.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, let me leave the question, then, that _you really have as your clients the entire United States, but confine it to 173 your having as your client the Attorney General and, one step removed the President. Am I wrong in suggesting that both at common law and statutorily, from the canon of ethics' standpoint, that the lawyer-client privilege is designed to help the client and not the lawyer? Is that privilege not one to the client and not from the client to the lawyer?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly, the client is entitled to waive the privilege. The lawyer is not.
Senator Birch Bayh (IN)

(D)
Senator BAYH. All right. Then we have two types of concern. One, your advocacy in those areas where you now might sa\7 that your personal opinion is different from the administration's and you don't want to disclose that because you might undercut your own client. The second deals with revealing lawyer-client secrets. What relevance does that type of obligation have when the position of the client is already known publicly? In other words, if the administration and the Attorney General have said what they feel about certain elements of the basic tenets of the Bill of Rights, then why do you as a lawyer have anv right to protect them from your involvement in that? *
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think to the extent that the Department, the administration, takes a public position, 1 feel free to discuss and have discussed my own personal contribution to that position—the New York Times case being an example; the preparation of the national security wiretapping brief being another example. But insofar as I may have been asked for advice in the process of making administration policy decisions upon which the administration has not taken a public position, there, I think, the lawyer-client privilege very definitely obtains. Where the administration has taken a public position and the lawyer is asked not what advice did you give in connection with that position but basically do you personally agree with the position or not, there, 1 tlrink, it is inappropriate to answer even though a public position has been taken.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU see, what concerns me is that not only in testimony before subcommittees of this committee, but also on several college campuses, you have made statements, and when some of us have tried to ask you about the statements you made specifically, each time you said you were speaking as a Justice Department spokesman—also that the audience expected a hard liner, I think, was another response you made to one of our colleagues. In these areas, we haven't been able to get Bill Rehnquist's philosophy for our consideration, and it is those areas that concern me. You feel those are still protected by the attorney-client relationship?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes; I do.
Senator Birch Bayh (IN)

(D)
Senator BAYH. That is the type of relationship that I suppose could be waived by the client, could it not?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. 1 would think that it could be; yes.
Senator Birch Bayh (IN)

(D)
Senator BAYH. And if some members of this <. ommittee would send to the Attorney General a letter asking him to let you have the opportunity* to freely express your own personal philosophy, and we got his assent to that, or he gave his assent to you, then you would be free to give us the answers to some of the questions which heretofore you have not answered because of the lawyer-client relationship? 174
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I would certainly think the privilege could be waived by the clients. Now, just who the client is, whether it is the President or the Attorney General, is something that would depend on the particular circumstances.
Senator Birch Bayh (IN)

(D)
Senator BAYH. But at least it is not all the people of the United States? We have agreed on that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I agree on that.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, would you have an}" strong objections if I were to send such a letter to both the Attorney General and the President? Is there anyone else who should be asked to participate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Without suggesting at all my own impressions as to what a response would be, I would certainly have no objection to your sending
Senator Birch Bayh (IN)

(D)
Senator BAYH. I am not making this suggestion lightly. I think you are absolutely sincere and feel you have a responsibility to adhere to the lawyer relationship, but I must say I feel I have an equal responsibility to find a way to penetrate it. You have admitted that by your own writings. The President has admitted it, and yet because of the nuances of the law}T er-client relationship, we aren't really able to get what you feel. Since you have no feeling that this would embarrass you, I will send such a letter to the President and to the Attorney General and await their reply. And I appreciate your patience in going through all of this with me. Mr. Chairman, I will send this letter today before the sun goes down, because I don't want this to be "drug" out. I would like for it to be consummated quickly.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Don't worry; it is not going to be "drug" out. [Laughter.] About this business, I think that is something this committee ought to pass on.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Pardon me?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. I think that is something this committee ought to pass on. I am opposed to it.
Senator Birch Bayh (IN)

(D)
Senator BAYH. DO you feel that as one Senator, one member of the committee, I don't have a right as an individual, Mr. Chairman?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. GO ahead.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Will the Senator yield?
Senator Birch Bayh (IN)

(D)
Senator BAYH. I will be glad to discuss this with any of you here, either privately or publicly. It seems to me this gives us an opportunity to let this gentleman express his own opinion.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. This gentleman has been on the witness stand for the last 2 days and has acquitted himself very, very well.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I agree. I have said that to the press. I will continue to say it, but one of the problems he has been faced with, Mr. Chairman
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. I am ready to vote.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Pardon me?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. And I am ready to vote.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Would the Senator yield?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes; I will be glad to get the thoughts of the Senator from Nebraska. 175
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Mr. Rehnquist, the President in his comments on your nomination designated you, I believe, as a judicial conservative. Is my recollection correct?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe it is, Senator.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Have you ever discussed with the President personally whether you are a judicial conservative or not, in the context of the nomination for the Supreme Court?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. It is not that I have any hesitancy in answering the question, except as to the propriety of repeating any discussion with the President. Since there was none here, I suppose I need have no hesitancy; no, he did not.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Then, obviously the President, in referring to you and describing you as a judicial conservative, resorted to the same type of information that is presently available to the committee, to wit: Your testimony before committees, your statements, your articles, opinions that you have written, and the observations and the contacts and recommendations of different people who know you. Wouldn't that follow?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly those sources were available to him.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Yes. Presumably he did consult all or some of these sources. We know, at least as much as he knew when he determined your philosophy. I submit we can do the same. Now, as to the interest, the very intense interest, of some members of this committee in some expression from you as to your personal philosophy, I would venture the suggestion that this is a rather newfound interest. I recall very well in the committee room when another nominee for the Supreme Court was occupying the nominee's chair which you now occupy. I think for the better part of 2 days the Senator from North Carolina repeated question after question almost without limit, requesting insight into his personal philosophy on various subjects. The answer was always the same. And at one juncture, the nominee said: Mr. Senator, I have talked to no one, no place, no how at no time about anything since I received this nomination. Now, that was Thurgood Marshall. I heard no expression of interest on the part of some other members of this committee in following up that line of questions with that nominee. Always before when a nominee has declined to answer a question when, in his own mind, for whatever reason, it has appeared inappropriate, this committee has honored that decision. This nominee should be treated no differently. To require answers, aside from the attorney-client privilege, would not be fair to his future colleagues on the Court, assuming confirmation; it would not be fair to the litigants in the Court or to their respective counsel. And so even if we have a letter here from all of the people of the United States saying it is all right for you to talk, Mr. Rehnquist, those considerations would not be solved, would they?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I don't believe they would.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. And that has been my experience, reaching back to the time of Justice Brennan's confirmation. That has been the standard answer, and it has been accepted by this committee. I do 176 not believe that there is much hope of getting away from the immutable fact that there is a limit beyond which no nominee can in good conscience go in expressing opinions either personal or legal in character at this particular juncture. As to the waiver, I don't see how you can get a waiver. There is no particular way it can be received nor issued.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Certainly past nominations have generally taken that position, and I think their refusals to answer that sort of question were probably justified.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. They certainly have, and I think upon the reading of any of the prior hearings, that same decision, that same answer, will be found. It has always been accepted by the committee and also by the Senate. I think you have been more liberal than some of the nominees before us in the extent that you have answered many questions. I would have asserted the answer, the historical answer, much sooner than you have done. Thank you, Senator Bayh, for yielding to me.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, I appreciate getting the comments of my colleague from Nebraska. I am sure he is aware as a distinguished attorney that there is ample precedent. One has to look no farther than the American Bar Association Code of Professional Responsibilities, Code of Ethics, under canon 4, to find that the lawyer-client relationship can be waived by the client. Now, perhaps the client in this circumstance would have no reason to waive it. I feel that this nominee has been struggling as we have been struggling to reconcile the differences which exist in our responsibility. They are not the same and I don't suggest that they are. I sat way down there when we had that particular nominee here and I think the Senator from Nebraska is absolutely right; that is exactly what happened. And I think all of us have to recognize that many times it all depends on whose ox is getting gored and we don't always face each problem with consistency as much as we would like to; we are bound up in our own ideas. But I do not recall in nry public life—that has not been nearly as long as my distinguished friend from Nebraska's—a President of the United States who has ever come on television and has made as the second prerequisite for his nominee, the second consideration, his judicial philosophy, and then to be confronted with that same nominee, a very distinguished legal scholar, who says himself: Specifically, until the Senate restores its practice of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him, it will have a hard time convincing doubters that it could make effective use of any additional part in the selection process. Now, there are the horns of the dilemma on which we are impaled.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. If the Senator will yield for comment on that point, I don't think there are any horns at all nor any dilemma.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. And no one's ox is being gored.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. The fact is, and the Senator has as good a knowledge of that history as I, that Franklin Delano Roosevelt after he failed legislatively to pack the Court, turned to a deliberate course of appointing liberal judges and he chose them for that and he called them that. Let's not kid ourselves; that is why they were chosen. 177 And I sat here since 1954, sometimes in semiagon}', sometimes in frustration, also sometimes in despair, wondering when that line of judges of liberal philosophy would ever run out and we would come to another kind of philosophy which would lend balance to the utterances and the statements of the Court. And I believe it is about time now that this committee and the Senate and the country take advantage of the happy circumstance that another type of nominee with another philosophy is being considered. It is not true that it is for the first time that that second consideration is being asserted for the appointment of members of the Supreme Court. That is not so. History disproves it; and it is a little late to try to rewrite that history.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Well, let's proceed.
Senator Birch Bayh (IN)

(D)
Senator BAYH. If I might just make one other observation, Mr. Chairman, I think that there probably are some distinguished judges on that Court that have been appointed in the interim described by the Senator from Nebraska who would shudder a bit to be described as part of the liberal bent. I will not name them but I think the record will show who they are. I want to make clear the distinction between what I am concerned about and what—maybe there isn't a distinction, but it seems to me there is one—a prospective nominee should refuse, has, and undoubtedly will refuse to comment on certain areas because this might abridge his sitting as a judge in cases that come before him. This is one area. Together we can go through the transcript and enumerate those areas that have confronted Mr. Rehnquist with a problem. I am not at all concerned about those but we can also go through that transcript and we can find a number of areas, a number of questions which I will not repeat at this time, where that was not the basis, where I had the feeling that here was a man who was willing and wanted to give us his thoughts, but he could not do so because he felt he was violating the trust he had with the Attorney General or speaking as a Justice Department spokesman. I see no reason why that should not be lifted. I don't see how it is going to hurt the President or the Attorney General and it is surely going to help the Senate in its consideration. I am not going to hold my breath until we get that waiver.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Or until it is asked, either.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Oh, perhaps I should hold it until it is asked. But that will be probably an easier time frame than receiving a reply.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. The Senator does not recall a time when any nominee has been before this committee or any of its predecessor committees and when the nominee said "I feel it is improper; it is an improper question which is directed to me and therefore I respectfully regret that I cannot answer it," that that assertion on his part has not been respected by the committee? The validity of that statement is open for examination of previous transcripts by any of the members of this committee or anyone else. The refusal is for the nominee to assert and when it has been asserted, whoever the nominee has been, it has always been respectfully abided by.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Then msij I ask my colleague from Nebraska if he would help resolve the problem in my mind where the nominee is on record as having said, in support of the administration, speaking 178 as a Justice Department spokesman, that he favors certain positions that I feel are not in the best interests of the country? Now, I am unable to separate the nominee from the philosophy that he espoused wearing that hat. Am I obligated then to vote against him?
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Well, in the first place, we have always recognized that a man's status changes when he becomes a nominee. Prior writings will speak for themselves but if he speaks on that same subject in terms of either expressing an opinion on a legal or constitutional proposition, or his present convictions on a proposition of that kind, then he runs into trouble and possible unfairness to his future colleagues if he would have to withdraw from a case. You cannot separate that. We have always had that and we can examine the writings. We have Mr. Rehnquist's prior record and we will have the opinions of witnesses that will come here; they will give us many interpretations of his philosophy. I can hardly wait until next Tuesday when those explanations start. A witness has a right to be wrong, too. And so the position that a man assumes when he becomes a nominee is different; it immediately changes and it should be governed by the new circumstances.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, I want to compliment the nominee again as I have in the past. You say he has a right to be wrong.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Any witness has a right to be wrong; any witness.
Senator Birch Bayh (IN)

(D)
Senator BAYH. On occasion even a U.S. Senator might be.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. I have known of some times when that has happened also. [Laughter.]
Senator Birch Bayh (IN)

(D)
Senator BAYH. The admission has been less frequent, but I think the fact that the nominee has said in the area of equal accommodations that he felt now in retrospect that he would not have that same position, I salute him for that. I just might
Senator Roman Hruska (NE)

(R)
Senator MATHIAS. Would the Senator yield just for one brief observation?
Senator Birch Bayh (IN)

(D)
Senator BAYH. If you will let me just read one paragraph from the Congressional Recoid, I will yield and not force further patience on my colleague or the witness who has been very patient. I just want to remind my friend from Nebraska that there are some rather distinguished authorities for the line of questioning we were following here which go as follows: When we are passing on a judge, we not only ought to know whether he is a good lawyer, not only whether he is honest, and I admit that this nominee possesses both of these qualifications—as I do about our present nominee—-"but we ought to know how he approaches the great questions of human liberty." A gentleman by the name of George Norris, distinguished Senator from Nebraska, made that observation in a similar situation.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. It is still true; still true.
Senator Birch Bayh (IN)

(D)
Senator BAYH. All right. I yield.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Just a very brief observation: I join with my colleague from Nebraska, the Senator from Nebraska, in his feeling. I think that Mr. Rehnquist deserves a considerable degree of understanding and admiration because he has observed the important rules which govern the profession of law. 179 Perhaps what the Senator from Indiana seeks to do and which I seek to do and other membeis of the committee think can be done, is limited by our ingenuity and not by the subject matter. We can get at what we need to get at without applying to the President for any waiver. I agree with the Senator from Nebraska.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Senator, could I get up and walk around the table once?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I will join hands and walk with you.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I can't help but observe that the nominee has just exercised or followed the prescription of Dr. Paul Dudley White Avho I saw urging that everybody who has been sitting for a long period of time to get up and at least jog in place. It is very good for the mind as well as for the heart. Maybe everyone in the room might want to do that.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Let us proceed.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Thank 3^0 u very much, Mr. Chairman. As I indicated yesterday, and as we have heard so much today from other Senators, I feel very definitely that philosophy is a factor that should be considered. You have indicated in some of your earlier writings that you feel the same way, and I understand the reasons that you have felt that you could not get into this subject of philosophy, perhaps, as much as you would have desired. You have indicated that you have an attorney-client relationship and you have indicated you are a nominee to the Supreme Court and you do not want to circumscribe your activitj' on the Court, judgment values on the Court. You have also indicated that as a member of the administration, you have a certain privilege as a member of the administration not to divulge those communications that you had with administration personnel in such a way which could harm or violate the responsibilities that you have in relationship to the President. Now, I understand all of those three areas of privilege, and I think you are entitled to the three areas of privilege. On the other hand, I agree with other Senators, I think, that we are entitled to have some better idea of your attitude about fundamental liberties in our Constitution. I would like to read some quotations or statements you have made and get an expression of opinion from you as to whether you still subscribe to the point of view or not. With regard to privacy and surveillance, you made a speech on March 19, 1971, "Privacy, Surveillance and the Law," in which you said: I do not believe, therefore, that there should be any judicial enforcement limitation on the gathering on this type of public information by the Executive Branch of Government. Must we then leave the Government to police itself? My answer would be that first such a result is not as bad as it may sound, and, secondly, that matters of oversight other than those afforded by judicial supervision are available. I have previously stated my belief that the first amendment does not prohibit even foolish or unauthorized information gathering by the Government. It is, of course, possible to extrapolate from the decided Supreme Court cases and conclude that the Court would further broaden the interpretation of the first amendment to include a prohibition for cirumscription of this type of activity. My own opinion is that such an expansion of existing doctrine is unlikely. Do you still subscribe to that viewpoint, that you do not believe that there are any judicially enforceable limitations on the evidence gathered by the Government, that the Government can surve\' a person on its own initiative?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Put in context, Senator, I do. The last sentence that you quoted was, as I am sure is apparent to you, a prediction on my part of what I thought the Court would do. That does not represent my own personal opinion. But put in the context of surveillance, not in the sense of wiretapping or invasion of premises or in terms of trying to use Government sanctions to extract information from people, but simply the observation of someone in a public place and qualified by the possibility that the result would be different where actual harrassment were shown, as I commented yesterday, my answer to your question is yes.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. When you testified before Senator Ervin's committee earlier this year, I happened to be present at the time you testified, and Senator Ervin asked you a question: "Do you feel there are any serious constitutional problems with respect to collecting data or keeping it under surveillance for persons who are merely exercising their right of peaceful assembly or petition to redress a grievance," and you answered, "I do not believe that it raises a constitutional question."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That was my testimony at that time. I think that I am entitled to have borne in mind the fact that I was then a Justice Department spokesman, and that the Justice Department as a possible litigant in such action, is certainly required to take a reasonable position, but it is not required to take the one which would be most restrictive on its activities.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. YOU also testified that if you didn't believe in what you said, you probably wouldn't be in the position that you are in now. 186
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I didn't mean to say precisely that, Senator. I said that if I felt what I was saying was reprehensible or obnoxious to me, I would not be in the position I am in now. I would take that to leave open disagreements within what I consider to be reasonable bounds.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Senator Ervin then went on to question you, 'Don't you agree with me any surveillance which would have the effect of stifling such activities, namely, the first amendment, those activities which are privileged under the first amendment, would violate those constitutional rights?" Your answer was, "No, I do not." I assume that the answer——•
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Would you read that back again?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Yes. Senator Ervin's question: Don't you agree with me that any surveillance which would have the effect of stifling such activities would violate those constitutional rights? And your answer: No, I do not.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I am not sure I do agree with that now. I am inclined to think that it is a fact question and I was perhaps resolving the fact question in my own mind on the basis of the line of inquiry that Senator Hart made yesterday, where thousands of people came, knowing there was going to be such surveillance, on the basis of Judge Austin's decision in Chicago, where he found as a fact that there was no stifling effect. I do not think I would want to categorically say that such surveillance could not have a stifling effect. I think I would treat it as a question of fact.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I appreciate your answer. Senator Ervin then went on to say, Question: Don't you think a serious constitutional question arises where any government agency undertakes to place people under surveillance for exercising their first amendment rights? Your answer: "When you go further and say, 'Isn't a serious constitutional question involved,' I am inclined to think not, as I said last week."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The question being whether surveillance
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Surveillance, yes. Don't you think a serious constitutional question arises where any government agency undertakes to place people under surveillance for exercising their first amendment rights? and your answer was, "when you go further and say, 'Isn't a serious constitutional question involved,' I am inclined to think now, as I said last week."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Again, assuming that in fact the surveillance efforts have no chilling effect, I would stand by that answer, I think, again as a spokesman for the Department.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. YOU don't think a serious constitutional question would arise putting people under surveillance for exercising their constitutional right of free speech?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. In the absence of a causative connection between some sort of chilling effect and the surveillance itself, that was the position I took for the Department, and I believe it would be a reasonable one.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. When you say in the absence of a chilling effect, I think you have eliminated the problem. 187 The question is wouldn't the surveillance have a chilling effect, and wouldn't that in effect raise the constitutional problems, and your answer was "I believe I am inclined to think not."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I don't think the question was phrased that way.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. V/ell
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Given the factual assumption of a chilling effect, then I would want to reserve judgment.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. In other words, you think there could be a chilling effect?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, sir; as in a Chicago type of case, I do.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Would the Senator yield?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Yes.
Senator Roman Hruska (NE)

(R)
Senator HRUSKA. Yesterday you told us about a judge who thought that the force following those who were being under surveillance would have presumably a chilling effect if they were immediately behind those that were subject to the surveillance, but if there was an intervening force, that no longer would be true. Would that be a more specific fact upon which you could predicate your answer?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. That is the type of fact situation I would want to know before attempting to answer yes or no on the existence of a chilling effect.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Senator Ervin went on to question you and said, Is it your position the Government could take somebody and put somebody—I believe it is called a tail on me—-and this man could walk uround and follow me everywhere I went, and because he didn't compel me to go to those places and just observe me, that I would have no legal remedy? And your answer, "As I have said yes before, I think it is a waste of the taxpayers' money, it is an inappropriate function of.the executive branch, I don't think it raises a first amendment violation."
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Subject to the qualification I gave to my previous answer to your question, I would stand by that statement.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. YOU gave a speech, and I quote from it, of May 1, 1969, to the Newark Kiwanis Club, you stated, and I quote: "The deliberate lawbreaker does not fully atone for his disobedience when he serves his sentence for he has, by example, undermined respect for the legal system itself." The flavor of that is that in your mind that there can be no redemption ever for a lawbreaker? ,
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO ; I am not talking about the sense of redemption of the individual lawbreaker, although certainly I realize the word atonement can be used in that sense. I am thinking more of the idea which I also expressed in the same speech, that he who strikes at a law, strikes at the law, and that every time a law is violated there is a risk of a snowballing effect. Thus, individual sentences under the law, while all that are appropriate for the individual violator, may not be able to redress the necessary respect for law on the part of society as a whole.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. SO, in other words, as I understand your explanation, you didn't really mean that a deliberate lawbreaker cannot fully atone for his disobedience when he serves his sentence?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; not in the sense that he shouldn't be restored .to whatever civil rights and freedom the law authorizes in that situa69-267—71 13 tion. All I meant was that a deliberate lawbreaker strikes a blow at the system, as well as committing a personal violation of the law.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. And you go on to say in the same speech, "I do offer the suggestion in the area of public law that disobedience cannot be tolerated, whether it be violent or nonviolent disobedience." What did you mean by that, cannot be tolerated? Do we have to march them out into the ocean and drown them?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. What I meant w T as that what has been occasionally characterized as nonviolent disobedience, lying down on railroad tacks in front of troop trains, and that sort of thing, to prevent the ordinary functions of government to be carried out, simply because it is not itself violent, is not therefore justifiable.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Then, to quote an article you wrote in the Civil Service Journal of January 1, 1971, "If Justice Holmes mistakenly failed to recognize that dismissal of a Government employee, because a public statement was a form of restraint on his free speech, it is equally a mistake to fail to recognize that potential dismissal from Government employment is by no means a complete negation of one's free speech." Would you care to elaborate on what you meant by Justice Holmes' mistaken beliefs regarding dismissal of employees?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Justice Holmes made the remark in a case he decided when he was a judge of the supreme judicial court of Massachusetts, that a man may have a right to free speech, but he has no right to be a policeman. He in effect held that whatever locality it was in Massachusetts had a perfect right to dismiss a policeman for exercising free speech because it wasn't violating the freedom of speech provisions. I think the courts have since taken a broader view of the free speech provision and felt, quite properly, that the sanction of dismissal was itself an infringement on free speech, could be tolerated in some situations and not others, and I think the great view of history today is that Justice Holmes was mistaken in making that assertion.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. And you feel that he was mistaken?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, sir; I do.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Then a speech you made to the Air War College at Maxwell Field, Ala., on August 23, 1971. You said, and I quote, The purpose of the guaranty of freedom of expression in our Constitution is not to assure everyone the same opportunity to influence public opinion. This would require not merely a prohibition of government interference with freedom of expression, but complete redistribution of wealth and of the means of communication but to assure that an}^ conceivable view was advocated by someone. I must say that statement concerns me because I don't see how }TOU can say that giving freedom of speech to all would require a complete redistribution of wealth and of the means of communication. Could you explain what you meant by that?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, sir, Senator. Senator Mathias asked me a somewhat similar question this morning, and I think I said in reply to him that the first amendment did not require that the Government equip everybody with a printing press or give them each a television station. It meant simply that those who had printing presses and those who had television stations should be able to say whatever thev wanted to. 189
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. In other words, you weren't suggesting that the freedom of speech for some ought to be curtailed in society as opposed to the freedom of speech of others, that all have an equal right to express their viewpoint, some may enjoy different modes of communication, and as a result of having a television program available to them, communicate their ideas to more people, but you weren't suggesting,, were you, that you would curtail the right of any one individual in society to express his opinion?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Not at all, and your statement is perhaps a better statement than I made on what the fact is, that the man with the television station has a better chance to express his views than the man who doesn't have it, but each has free speech within his own compass.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Would you care to express yourself on 3'our attitude toward free legal services for the poor, as an example, giving the poor an opportunit}7 to utilize the court system which in the past has been limited to the wealthy and the semi weal thy, middle class in society.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, putting aside any conceivable constitutional implications or statutory interpretations, I think it is a highly desirable result. I was on the Board of Maricopa County Legal Aid Society at a time when funds were difficult to come by, and the services provided to the poor simply weren't adequate because of lack of funding. I think that the increased funding is now making legal services available to the poor as well as to the rich, and I heartily favor that.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I am very happy to hear you say that. In answer to Senator Mathias' question regarding due process, which you discussed in general terms, you said it woidd be inappropriate to advance a definition of clue process at this particular time, and j7 et in your Harvard Law Record article, that famous article that you wrote—it has become famous—you stated, "Given the state of things in March 1957, what could have been more important to the Senate than Mr. Justice Whittaker's views on equal protection and due process?" Have you changed your mind that the Senate ought to be interested in a nominee's attitude toward due process?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I haven't changed my mind that the Senate ought to be interested in a nominee's views. I have come to have an increasing sympathy for the problem of the nominee to respond to very legitimate questions from the Senators without in some way giving the appearance of prejudging issues that might come before him. Certainly in the sense of formulating a definition of due process, when one thinks of all of the cases that have been decided under that clause, it strikes me as virtually impossible. One can advert to settled doctrines of due process, that a confession obtained by coercion is a violation of the due process of law. That doctrine strikes me as being so well settled a nominee need have no reservation about saying that that is a classical example of it. The idea that a man is entitled to a hearing before he is deprived of substantial rights is another doctrine that strikes me as so w T ell settled one need have no hesitancy in saying that. 190 There are much closer questions of due process, I am sure, pending now in the courts that I ought not to express a view on.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I agree with you on that. I frankly think that it would be wrong for you to express a view on a case that is before the court now which, if affirmed, would require a circumscription of your future judgment. I would be the last person who would want to see that happen. However, let me ask another question in this area. We can all think of examples in which the Supreme Court is required to pass judgment in situations which are entirely unprecedented and which were clearly never envisioned by the framers of the Constitution. One of the examples I am thinking of is the Billie Sol Estes case in which the question was whether or not television would be allowed in the courtroom, and there was a due process issue before the Supreme Court, Now, how would you apply due process standards in a case like that? What would be relevant to you besides judicial precedent, if there is any judicial precedent? Would you go back to your reading of history; would you rely on your personal philosophy; how would you decide such a totally unprecedented case—what standard would you utilize in deciding a totally unprecedented due process case?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I would first, as is obvious, read the amendment, and you suggest that there are no precedents, yet certainly there would be cases that would be not too far off and I would be inclined to go back to the debates, the Bingham explanation of what he meant by the 14th amendment, other explanations on the floor, and I am sure you would come up with something that obviously would not have included a particular discussion of whether a trial could be televised or not. All I can think of doing is by the very best and most faithful type of analysis to see if this sort of thing was within the broad prescription that the framers and ratifiors of that amendment had in mind.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. And also wouldn't you apply a standard of what you think is fair under the existing circumstances?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; I don't believe I would unless I found that to be one of the components of the due process clause. I don't think it would be right for me to simply say, this doesn't seem fair to me, therefore, I am going to find it is a violation of due process.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I am talking about an unprecedented case, like the Billie Sol Estes case. I am not talking about a case in which there would be a question of stare decisis, because I think the Billie Sol Estes case was the first case in which the Supreme Court had to make a determination of the rights of the media to have television in a courtroom, and the right of the accused to keep television out of the courtroom.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. TO the extent that fairness is a component of due process, as a part of the debates and intent of the framers, certainly that would be taken into consideration. I think it would be wrong for me to simply read in my own subjective notions of fairness.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. The fairness standard that you would apply would be one, I would assume, based on some of your other statements, 191 a standard derived in context with what is going on in the modern world, and not necessarily what went on in 1789?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO; certainly the fact that the framers of the due process clause did not contemplate specifically that trials might be televised does not foreclose the issue under the due process clauses.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. And so the fairness standard would be a standard applicable to the contents what is going on today rather than 1789?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Fairness in the context of the due process clause.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. One last series of questions, which shouldn't take longer than 4 or 5 minutes, Mr. Chairman. I realize I have gone over my time. Thank you. I didn't anticipate Mr. Rehnquist's walk around the table. [Laughter.] Mr. Rehnquist, in a speech last May dealing with criminal procedure, you are quoted as having made a distinction between what you termed a "technical violation of the law" and a violation which was "not only illegal but also brutal or offensive." Your statement is reported in this way, and I am quoting: If someone engaged in espionage against the United States, for the benefit of a foreign government, were to go free because of a technical violation of the law relating to unreasonable search and seizures, many would feel that the balance has swung too far in favor of the criminal defendant. If, on the other hand, evidence is not only illegal, brutally, offensively concealed from the defendant for the purpose of prosecuting the defendant for a minor offense, an individual indication of the violation of the constitutional right may serve society better than the conviction of the defendant, if that choice must be made. How do you go about deciding whether a violation of a constitutional right is brutal or offensive?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I can tell you the general thought that was in my mind at that time, Senator. I am relying on recollection, and my recollection may be incorrect, as to cases or situations, but I think perhaps the thought will come across. As I recall, in the case of Mapp v. Ohio, there was a breaking1 into a house under the most objectionable sort of circumstances, without any warrant, and a simple ransacking search of the whole place. That would strike me as the kind of violation I was referring to in the second context. The technical violation I would put in terms of this case from Wyoming that came up to the Supreme Court last spring, where the sheriff in one of the Wyoming counties, on a tip from an informer, went before a magistrate to get a search warrant, rather than an arrest warrant, for two robbery defendants who were later apprehended in another part of Wyoming as a result of a statewide radio broadcast, and after the Supreme Court of Wyoming had ruled against the claim, and the district court in Wyoming and in the tenth circuit ruled against the habeas corpus eliam, the Supreme Court of the United States ultimately held that the search warrant was improperly issued because the information presented to the magistrate didn't meet the tests that it ought to meet for a search warrant. I think that was the type of thing that I had in mind when I said a technical violation.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Discussing the civil disobedience, you said: "In the area of public law disobedience cannot be tolerated." Isn't there a fundamental conflict there? On the other hand, you say if the Government violates a constitutional right, we must decide whether it is 192 merely a technical violation, whereas in the case of an individual, it is the absolute test.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS far as the action of the Government agent is concerned, it is the absolute test there too. What I was referring to was not that the Government agents who may have committed a violation of law, however technical, be treated differently than some private citizen, but whether it was desirable, as a matter of policy, to apply the exclusionary rule which in effect excludes the evidence not as against the technical violator of the law, but against the person who was concededly guilty other than for the absence of the evidence to be excluded.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Finally, Mr. Rehnquist, if you care to answer it, which Supreme Court Justice in history do you admire the most?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I think John Marshall.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. DO you care to elaborate?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. He made the Supreme Court what it is today more than any other person. I think it was Senator Fong who was commenting this morning that there are lots of countries with constitutions that have very fine charters of individual liberties and restraints on Government power, but somehow people get arrested all the time, and things just don't work out the way the constitution said they would. I think it is largely the responsibility of John Marshall and his establishment of the doctrine of judicial review which has made our Constitution a living document.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I want to thank you very much, Mr. Rehnquist, for being to my mind more forthcoming today in answering the questions that I had for you. I think that yesterday, for what reason I don't know, you felt inhibited in answering the questions that I personally put to you, and I think that today you have been very forthcoming in answering the questions that 1 personally put to you, and I want to thank you for that, I would like, Mi. Chairman, to ask you if it would bo possible, maybe, after wo have a chance to re$ul the transcript of the record, to put some questions to Mr. Rehnquist in writing, if possible.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. What did you say?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I would like to, if possible, be able to put some questions to Mr. Rehnquist after reading the transcript of this hearing.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. We will decide that when we come to it. I will be fair about it.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. But I don't want to add to Mr. Rehnquist's burden or the burden of this committee.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. That is something that the committee itself will decide.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Thank you.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I would like to go back to the wiretapping question. Let me ask Mr. Rehnquist if he can tell us whether one of the arguments that was put forth in the Justice Department brief on the wiretapping question was that of inherent executive power and ask him to say whether the right to wiretap was an extension by the Justice Department of that doctrine? 193
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I believe that position was taken, Senator Mathias, in the district court. I am not sure whether it was taken in the court of appeals or not. In the brief in the Supreme Court, the Government does not take the position that there is some sort of inherent power in the Executive which makes it superior to the fourth amendment. The position the Government has taken is that the executive, like every other branch of the Government, is bound by the unreasonable search and seizure restrictions of the fourth amendment, and that the question is whether this particular overhearing was or was not an unreasonable search and seizure.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Can you describe for the committee your own personal role in the Justice Department's position?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Since I have described my participation in the brief, I feel I can say what my own contribution was and not any other opposing views. I felt it was a mistake for the Government to take the position that there was inherent power, and that the case could best be put forward both from the point of view of the Government in its more limited interests as an adversary and in the interests of the Government in the larger point of view by framing the case in terms of whether it was an unreasonable search and seizure under the fourth amendment, rather than some over-riding inherent power.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. When Senator Fong went into this area this morning, he very carefully qualified himself as being one of four Members of the Senate who had voted against the Omnibus Crime bill passed in 1967. I ought to make the same qualification, although I was not in the Senate at the time, I was a Member of the House and I too was recorded against the bill. I am concerned in this area, as Senator Fong is, and other Members of the Senate. I am wondering if you could tell us what, in your mind, you think the competing factors would be in this area of wiretapping and how persuasive }T>u would feel that this element of inherent Executive power would be in this scale of interest?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. YOU are referring now, Senator, to the national security wiretapping, or the wiretapping under the Omnibus Crime
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Under the Omnibus Crime.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Under the Omnibus Crime Act, without attempting to prejudge or express an opinion on any particular case, I would think that the competing factors to be weighed are the closeness of the analogy between the traditional warrant procedure for searching premises for tangible physical evidence and the court order authorized under the Omnibus Crime Act for intercepting a conversation for a limited period of time. And basically the competing interest between the right of the individual to privacy in his conversations, privacy in his home, as opposed to the necessity or the authority of the Government in circumscribing circumstances where prior court authorization has been obtained and reasonable cause is shown to believe that incriminating evidence will be obtained for the Government to obtain that evidence.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Would you feel substantially different about wiretapping in a national security case?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, there, of course, since the procedure is undertaken without a court authorization in advance, the question is 194 whether the exercise of the authority by the Attorney General and the President's designate offers a reasonably close approximation of the type of control that you get from presenting the matter to a neutral magistrate, or whether in view of the exigencies of that particular type of case, some lesser degree of neutral control can be accepted in the interest of preventing possible damage to the national security.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Moving on to another area, the area of speedy justice, 1 recall to you The Speedy Trial Act of 1971; the bill of which the principal sponsor is the Senator from North Carolina, Senator Ervin, and of which a number of us, including myself, are cosponsors. There are 51 cosponsors to this bill, I recall. This is a bill which, you recall, provided that if one accused of a crime is not brought to trial within a specified period of time, it would result in a technical acquittal. What was the position of the Department insofar as that legislation was concerned?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. The position that the Department ultimately took was that it would not oppose mandatory dismissals as such if the bill were coupled with some reform in the practice of Federal habeas corpus, and were also designed to allow the system to reasonably adjust to these new time limitations in order that there wouldn't be a sudden wave of dismissals because of the inability of the system to shift to the new time schedule.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. That wasn't the Department's position?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. NO, it wasn't, Senator, and since one of our leading newspapers in the Nation's Capital lias presented an account from somewhere of what happened, I feel at liberty of speaking about it without the circumspection I might otherwise feel. Several of us in the Department have been working on the program. Although I was not immediately responsible for it, I was one of those who discussed it, and I think all of us unanimously felt that the mandatory dismissals imposed on the prosecution by the bill, without any concomitant sanctions imposed on the defense, was an unfairway, so far as the prosecution was concerned, of implementing the speedy trial requirement. I had occasion to be aut on the road, so to speak, and be giving a speech down at Maxwell Field, and in the discussion there it became apparent to me that a number of people who were by no means softies, if one may use that oversimplified term in the area of law enforcement,, were nonetheless concerned about the situation, where people simply languished in jail because they were unable to raise bond and weren't brought to trial within a short period of time.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I believe a high percentage of the people who are in jails all over the country today are in that position.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. I suspect there is a good deal of truth to that. At any rate, I became convinced, after hearing this discussion, that the Department ought to shift its position and not just the criminal defendant's situation would be improved, but that the whole system of criminal justice would be improved if we somehow got a guarantee of reasonably speedy administration of criminal justice primarily at the trial level but other places elseAvhere, and that the values to be gained from such improvement clearly outweighed the probability 195 that there would be some mandatory dismissals of people who were guilty and simply weren't able to be tried in that time.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. SO it is a matter of philosophy, if we could use that term, that that approach has some personal relevance for you?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes sir.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. At the risk of repetition, going back to the questions that I asked this morning on excessive bail, reasonable search and seizure, due process, and so on, perhaps I can now rephrase those question with the hope of probing a little further your views in this area. Looking at the eighth amendment, at the question of excessive bail, without asking you to define with any kind of particularity that would either retrospectively or prospectively be embarrassing, could you tell the committee what you think are the competing interests—the various factors—that you would consider in determining in a particular case what is excessive bail within the context of the Constitution?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. If you will forgive me for being general, I will certainly try.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Maybe by being general you could still tell us what you think is the more important and the less important factors in this kind of judgment.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, certainly one factor is the strong public policy in favor of assuring the presence of a defendant at his trial. Once he has been indicted and arraigned. Congress has, in the Bail Reform Act of 1966, provided for a number of other less severe sanctions than the actual requirement of bail, but under the Constitution bail is nonetheless permissible. Whether or not it is excessive, 1 would take it, would depend on whether the amount fixed with an eye to actually assuring the defendant's presence at the trial. I would suppose that bail would quite arguably be excessive if it were fixed with an eye to simply keeping the man in jail rather than an .amount sufficient to reasonably assure his presence at the trial.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Would you mind developing a classification of categories of defendants in dealing with this?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, of course, in many States my recollection is that capital offenses simply aren't baliable, and I take it the philosophy behind that is that a man who may be convicted of a capital crime has absolvtely no incentive to show up for his trial, and that, therefore, there you do not even run the risk of any sort of bail; but I think going down the scale of graduation of offenses, certainty the lighter the offense, the smaller the bail would be, is the customary way one would balance that.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. In your colloquy with Senator Tunney, I think you covered the question of due process under the 14th amendment. Could you comment very briefly on due process under the fifth amendment? Again, in this context of competing factors.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Unless you can prod me with some statement of fact, I am not sure anything comes to mind as due process under the fifth amendment.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. The whole philosophy of the Bill of Rights, it seems to me, is to provide certain restraints on Government. I am 196 wondering how you would view the fifth amendment due process requirement as a restraint on Government? The apparent balance is the interest of the Government against the guarantees of the individual.
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Yes, no person shall be deprived of life, liberty, or property without due process of law. I suppose that means at the very least a person to be deprived of his liberty is entitled to a hearing before a fairty constituted tribunal, to be apprised of the charges against him, to have an opportunity to present witnesses on his behalf, to have an opportunity to cross-examine witnesses—again assuming this is a full-fledged criminal trial. I think if I got more particular than that I would be roaming into areas where I probably ought not to.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Once again, thinking not of a final definition but only the weighting factors, what do you think is reasonable in the area of search and seizure?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. Well, I think the Court has held that the general rule is that a search without a warrant is unreasonable and that ordinarily in order to search, there must be a warrant issued by a neutral magistrate upon a showing of probable cause. On the other hand, there are recognized exceptions to that doctrine, as the doctrine of exigent circumstances set forth in Kerr against California. I think the classic example is that of the automobile which is very likely to be moved hj the time that the police could go and apply to a magistrate for a search warrant. There I believe the courts have said that because of that necessity, a warrant is not required, and I think that is the sort of balance the courts have tried to strike; that where a warrant is obtainable, the general rule is that a warrant is required, that it is up to the Government to justify those exceptional situations in which a warrant is not required.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. And that is what you would believe?
William H. Rehnquist
Nominee
(R)
Mr. REHNQUIST. AS general propositions, I have no quarrel with those at all.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Finally, what about the power of the Government to put into abeyance due process under emergency or extraordinary circumstances?
William H. Rehnquist
Nominee
(R)
Air. REHNQUIST. Well, I commented in response to some question— I don't recall whether it was yours or whether you were present, the doctrine of qualified martial law which has been recognized in many courts, in fact by the Supreme Court of the United States, where the force mounted against the peace authorities in a particular place at a particular time is such that they simply can't cope with it in the normal process of individual arrests, bookings, and that sort of thing, and there it is my understanding that the Government has the authority, for a limited period during the duration of this type of emergency, to arrest people without the usual formalities so long as the period of arrest is kept to the very minimum time required by the emergency.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Thank you. Thank you again, Mr. Rehnquist.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. YOU are excused.
Senator Birch Bayh (IN)

(D)
Senator BAYH. May I make one observation? 197 I appreciate the fact that as I sat here the last several minutes, Mr. Rehnquist has answered in greater detail, in my judgment, some of the difficult questions that he had appeared to be more reluctant to answer earlier. I am anxious to have a chance to study them because I think most of this information is the type of information we are looking for, and I personally appreciate that.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. John Bingham Hurlbut, law professor; Martin F. Richman, former law clerk to Chief Justice Warren, former Deputy Assistant Attorney General; Howard Karman, president of the Arizona Bar Association. Will you gentlemen stand. You are here to testify in behalf of Mr. Rehnquist. We will give you the opportunity to put your statements in the record, please. (The material referred to follows:) The CHAIRMAN. We are going to recess now until 10:30 Monday morning, at which time Mr. Powell will be the witness.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Before you recess, can 1 say 30 seconds' worth?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Yes.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I welcome our colleague, Senator Tydings, back to the committee, and also a distinguished Marvlander who has deserted us and gone to Virginia, Mr. Carlisle Humelsine. I give great weight to their statements and testimony. (Whereupon at 3:20 p.m. the hearing recessed and will reconvene on Monday, November 8, at 10:30 a.m.) NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR. 26245 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The committee met, pursuant to recess, at 10:30 a.m., in the Caucus Room, Old Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, McClellan, Ervin, Hart, Kenned}", Bayh, Burdick, Tunney, Hruska, Fong, Scott, Thurmond, and Mathias. Also present: John H. Holloman, chief counsel, Francis C. Rosetiberger, Peter M. Stockett, Hite McLean, and Tom Hart.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. The committee will come to order. Now the Chair cannot tell from those who filed requests to testify whether they are for the nominee, Mr. Powell, or against him. I am placing Mr. Holloman at the end there and I want all those who want to testify against the nominee to give him their names. If they are not present we can make arrangements. Mr. Powell, I have read the FBI files on you; it was a full field investigation. I certainly think you are highly qualified and I am going to vote to confirm you. Senator Ervin?
Senator Sam Ervin (NC)

(D)
Senator ERVIN. Mr. Powell.. I have known you by reputation for a long time. I know you are reputed to be one of the very finest lawyers in America; and from everything I have heard about you I think that you will do what Chief Justice John Marshall declared in the Marbury v. Madison case is the duty of a Supreme Court Justice, and that is to accept the Constitution as the rule for the Government of our official action as a member of the Court and for that reason it will afford me pleasure to vote for you. I have no reservations.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you very much, Senator.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Bayh?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Mr. Powell, let me publicly extend my congratulations to you for the confidence that the President has placed in you. I have had a chance to work with you during your tenure as president of the bar association and 1 have certainly felt that that experience has been a fine one for me. -201 202 If I may, may I ask 3^011 just a general question to start, relative to what you feel the proper role of the Senate is in this experience that we are sharing here. Do you feel that the Senate can in good conscience, perhaps ought to in good conscience, explore not only the legal competence and the moral integrity of a prospective Justice but should also explore what the individual feels from a philosophical standpoint?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I know of no limits 011 what the Senate should explore, Senator Bayh.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I am sure you are aware of the concern that I have. I am sure as a leader of the bar of many years you probably experienced this concern before I did, as a relative neophyte lawyer, over the importance of maintaining the quality of judges, not only from the standpoint of legal competence but also from the standpoint of public acceptance. May I ask you some questions relative to your own personal financial background?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Of course.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU submitted to the chairman, as I recall, a financial statement covering yourself, your wife, and your son. You are familiar with that statement, I trust?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I am.
Senator Birch Bayh (IN)

(D)
Senator BAYH. TO the best of your knowledge, does this represent an accurate picture of your complete financial holdings?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That statement listed all of the securities which either I, my wife, or my son owned. That statement does not include certain cash which I have; it does not include life insurance; it does not include any tangible personal property and I may say for the benefit of my wife, who is in the room, she claims all of it except my guns. [Laughter.]
Senator Birch Bayh (IN)

(D)
Senator BAYH. DO you keep those locked up and away from her? [Laughter.]
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That hadn't occurred to me yet.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Knowing her and knowing you, I don't suppose that is much of a problem to either one of you. Let me explore, if I may, some of the legal problems that may be created by this. First of all, let me compliment you on the success that you have evidenced during your practice by being able to accumulate such a substantial portfolio. I think this speaks well of your business and your legal competence. It does raise, as you know, certain questions to those of us who are concerned about how a judge—I am not sure immunizes is a good word, but let me use it—immunizes himself from possible temptation. Neither you nor most judges would succumb to such temptation but from the standpoint of appearance and proprietj^, what are your thoughts as to what you can do or should do or are prepared to do relative to this significant stock portfolio so that it might not give the appearance of impropriety in certain cases that you may be called to sit upon?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator Bayh, I agree that that is a troublesome problem. In the relatively limited time available, I have tried to acquaint myself with what has been done by certain other members of the Court. Also, 1 have read the preliminary draft of the proposed 203 new canons of judicial ethics and 1 have had my partners do some research. 1 would recognize as the binding principle, to which 1 will attempt to adhere, both to the letter and the spirit, the canons of judicial ethics. I recognize they are not legally binding on the members of the judiciary but I think increasingly they will be so regarded. I am aware also of 28 U.S.C.A. 455, and obviously I would complv with that.
Senator Birch Bayh (IN)

(D)
Senator BAYH. 455, of course, uses the specific test of a "substantial interest"?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That is correct.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Would you care to give us your impression, Mr. Powell, of how you feel the canons of ethics interpret substantial interest?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. They interpret it very narrowly. The proposed new canons, I think, use the phrase "any interest."
Senator Birch Bayh (IN)

(D)
Senator BAYH. And }T ou feel this would be the personal test you would subject yourself to?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes. I would s&y this, to amplify that response, Senator Bayh: Obviously 1 have some problems. The canon, as 1 read it, imposes a duty on a judge as promptly as he reasonably can to dispose of securities which are in companies which are likely to come before the Court. Obviously, one would have to do some speculating as to the latter part of that standard. There is a further condition that his obligation is to dispose of them where he can do so without substantial loss. The principal holding which I have, and which my family also has, including not only my wife and son but my two sisters and a brother, is a holding that came to us through gifts from my father many years ago. We could not sell that holding without veiy substantial tax adjustments.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you give us the name?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is Sperrv & Hutchinson.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The S. & H.?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. The S. & H. Green Stamp Co.; that is right. My father's family furniture manufacturing company was merged into the Sperry & Hutchinson Co. a couple of j^ears ago, so that the family has substantial or comparatively large holdings in that company.
Senator Birch Bayh (IN)

(D)
Senator BAYH. HOW do you insulate those from your holdings or do A"ou feel it is necessary?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would certainhT have to disqualify myself if a case came to Court involving that company.
Senator Birch Bayh (IN)

(D)
Senator BAYH. There has been some question—I think I heard you speculate, this speculation at least has been attributed to you—• relative to a blind trust for your holdings. Would you care to share your thoughts with the committee ultimately as to how that would meet the problem that confronts you?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would be happy to do so. I was first informed this was a technique that might be helpful and that had been used by others. My investigation through lawyers in my office is not yet complete; and jT et I would say as of now I think a blind trust would probably be of little assistance. It may be a dut}T , in fact the new canons suggest there is a duty, on a judge to 69-267—71 14 204 ascertain what he does hold. If that affirmative duty exists, a blind trust would be a bit awkward.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I would suppose that a blind trust might work for some of your holdings, perhaps most of them. The one that you referred to where you would have significant tax liability just wouldn't be disposed of by a blind trust—it would be the sort of thing that would be ever present as a reminder?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. However you made it, I think, in a situation such as you have described, you would have that problem.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU feel that the canons of ethics, 28 U.S.C.A. 455, should be construed in the strictest sense as far as you are concerned?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I certainly do.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you give the committee the benefit of your thoughts relative to the emphasis that the Court as of this date has placed on avoiding the appearance of impropriety? They brought in the appearance of impropriety in the Commonwealth Coatings case as well as specific interests or specific impropriety. The Court in that 1968 case held that a judge had a responsibility to avoid the appearance of impropriety as well as impropriety. I don't ask you to deal with trying to second guess the Court, but to give us jT our opinion as to—perhaps I should put it this way: Give us 3'our opinion as to the significance that the appearance of impropriety should play as a judge interprets the substantial interest clause and the canons of ethics.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would agree that the appearance of impropriety certainly merits serious consideration. It is quite important for the public to have confidence in the members of the Court that they have no interest other than to do justice under law.
Senator Birch Bayh (IN)

(D)
Senator BAYH. There are a number of other questions
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator Bayh, I would just like to add one comment to be sure that I have answered your inquiry completely. I would endeavor promptly to limit my list of investments so as properly to comply with the letter and spirit of the canons. There are some investments I would certainly wish to retain; I mentioned one of the major ones. There are several others that are involved in corporations which I have represented over many years. If they should be involved in litigation in court—-certainly for the foreseeable future—I would not take part in it.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you broaden the previous discussion we have had in which we have dealt with ownership or interest in a party. The substantial interest test at least in Commonwealth Coatings has been interpreted to mean there must be an interest in the specific party, but the party that has been related to the party which the judge has an interest in. Could you give us your thoughts relative to how you, as a judge, feel you should look at cases that come before you in which you have served as counsel?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, most certainly I would not take any part in those cases, Senator Bayh. There are all sorts of situations that I have thought about and, of course, 3"ou have
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you give us a broader thought on this?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, how far does one go over the years with respect to old clients of one's firm? I think that raises a host of questions. As you know, having practiced law with distinction yourself, you have all 205 sorts of clients. We have had hundreds of clients; some come back year after year; others we never see again. Some are retained, most are not. So I think the specific answer would have to be made in relation to the specific factual situation. I certainly can assure you that my own effort and every inclination would be to lean over backward in this respect to avoid the appearance of impropriety; and yet, I suppose every judge has to bear in mind if he leans over backward too far when it is not really justified, he imposes additional burdens on other members of the court.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I have introduced a measure, and Senator Hollings from South Carolina has introduced a measure, which we hope this committee will be able to look upon with favor, that would deal with giving the Federal judiciary, particularly at a lower level, the opportunity to lessen this burden of the obligation to sit so that we deal with the appearance of impropriety to a greater degree than we have in the past. Mr. Chairman, L want to yield temporarily back to my senior colleagues on some questions they may have, but I would like to pursue one other question in this ethical field as long as we are there. Let me say for the record I am sure it is not necessary for you, for your information, but I don't ask these questions because I have doubt about your ability to meet them head on; I am confident from what I know of you that you would, but I just want the record to be clear and I want you to have a chance to express your feelings on them. We have dealt with the need to remove oneself, to keep oneself, because of relationship with a party, and financial, pecuniary interests, or the need to be careful, as careful as one can, with what one owns as a judge, so that he not be in a position of having to excuse himself. What obligation do you feel a judge has to meet the tests of the new canons of ethics relative to past opinions that he may have expressed? Is that as important a thing to consider, as well as interests in the party or appearance of impropriety so far as client-lawyer relationship with a prospective party is concerned?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. [ believe one of the provisions of section 2, or article 2 rather, of the proposed new canons says in substance the judge should not serve in a case with respect to which he has formed a fixed opinion or has a fixed view as to the issue involved; and I would certainly accept that as a sound rule.
Senator Birch Bayh (IN)

(D)
Senator BAYH. We had rather detailed discussion with the other nominee, Mr. Rehnquist, relative to his feelings in the whole area of the right to privacy, and the inherent right of the Federal Government to become involved in snooping and this type of thing. So that 1 might get your thoughts on where you feel this might enter, if at all as you look at some of the cases, prospective cases, could you give us your thoughts relative to what rights you feel the Federal Government has in the area of so-called fourth amendment rights, wiretapping, and surveillance or the broader rights of the right of privacy which have been protected in the rather broad ground of the first, fourth, and, perhaps, in the fifth amendment? Could you give us your thoughts in those areas?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It covers a lot of ground, doesn't it?
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU don't need to confine yourself to 25 words or less. [Laughter.] 206
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will address first of all the broader question of what you described as the right of privacy, and I may say that my views, perhaps, have changed dramatically over the past two and a half weeks. I now think the right of privacy would be a very fine thing. [Laughter.]
Senator Birch Bayh (IN)

(D)
Senator BAYH. I have shared that concern for 17 years.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I am sure you have. Seriously, I once read the Griswold case; I suppose you have reference to it?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes, sir.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have not read it recently. I remember, of course, as every law student does, there was no specific provision of the Constitution that spelled out a right of privacy; the right was inferred from a collection of other rights. I suppose the correct posture for me to take at this moment is that I would certainly view any such case with an open mind and attempt to reach a decision based on the facts and the law and the Constitution. I would say, not as a prospective judge but generally as a citizen, that I think all Americans have the right not to have their privacy unduly intruded upon; there is no question about that. Do you wish me to move on into the wiretapping area which you mentioned?
Senator Birch Bayh (IN)

(D)
Senator BAYH. If you would, please.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I wrote a letter to you, Senator Bayh, when I received a request through the Justice Department for copies of talks that I had made, and knowing of your interest in this particular area, I sent you copies of the only talks of which I have any recollection that I have made relating to electronic surveillance. I would like to say for the benefit of the committee that as a civilian lawyer without any criminal trial experience, my first interest in the criminal law arose when I was president-elect of the American Bar Association, and I was tn-ing to plan a program for my j^ear as president; and I ended up with three programs which seemed to me to be fairly significant. One was the initiation of the criminal justice project of the American Bar Association with which I am sure all members of this committee are familiar. I had to do some study in connection with that. I will pass over that project for a moment and move to the President's Crime Commission— President Johnson's Commission on Law Enforcement and the Administration of Justice. I was assigned to two subcommittees of that Commission: One was the Subcommittee on the Courts; the other was the Subcommittee on Organized Crime. That was my first, literally my first, insight and information as to what organized crime in this country really is doing to our people. It was there for the first time that I became interested with the problem of Avhether or not electronic surveillance was needed by law enforcement and whether adequate safeguards could be imposed by legislation which would protect the public against the intrusion that this form of surveillance makes possible. A majority of the President's Commission, including myself, found that the law was then in a very chaotic state. You are all familiar with it: I will not review it, but under the Olmstead case, wiretapping was not deemed to be a violation of the fourth amendment and yet under the Communications Act of 1934, the fruits of the surveillance 207 were not admissible in court. So we had the worst of all worlds, with uncontrolled wiretapping allowed but the fruits of it not being available for use even in proper criminal proceedings. So the principal thrust of the Crime Commission's report was that Federal legislation was urgently needed. It was needed, we thought, for two reasons: First, to outlaw all unauthorized wiretapping, and that was done in unequivocal language in the Omnibus Crime Act of 1968. The second principal recommendation of the Commission was that a court-controlled system of wiretapping be established by the Congress to deal with cases of major crime, directed primarily against organized crime. That recommendation may have had some influence on the Congress in the enactment of title III of the act of 1968. At that point, my interest in the subject, except from a purely academic way, ended until the ABA criminal justice project decided to put out standards in this area, standards primarily to guide the States; and so, as I am sure you know, Senator Bayh, the ABA house of delegates last February did adopt standards with respect to electronic surveillance, and I served on the ABA Criminal Justice Committee; I supported those standards. I have made, as I recall, three talks in which I mentioned this subject, and I think I sent all of those to you.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU mentioned the concern you have over organized crime. Every member of this committee shares that concern. You mentioned the effort that we made in the 1968 act in which wiretapping is permitted with certain protections, particularly the securing of a court order. You mentioned outlawing of all unauthorized taps. Could you give us your thoughts relative to whether, as you look at the need to balance the security of our society and deal with organized crime against the concern over the invasion of our individual rights, specifically now we are talking about fourth amendme.it rights, whether it would not be a fair test to subject all wiretapping, to have the one who is going to use the wiretap to get a court order?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think you are now moving, if I understand your question, into the areas of national security and domestic subversion. The ABA standards did incorporate provisions with respect to national security cases but did not require a prior court order. This involves action by a foreign powei in espionage or comparable situations. The ABA standards did not address the far more troublesome area of internal security surveillance. I have never studied that. I alluded to it in two of the talks which I sent to }T ou. I understand that at least one case is either on the docket or on its wajr to the Court, and I doubt whether I should go beyond what I have said on that topic.
Senator Birch Bayh (IN)

(D)
Senatoi BAYH. Let me just read the ABA final draft and the tentative draft and ask }^ou if you would care to comment further than you already have. The final draft dealing with this specific point says, and I am sure you are familiar with this, but just to refresh 3T our memory to have it in the record, let me read it: "The special committee rejected any reading of the fourth amendment that would invariably require compliance with a court order system before surveillance in interest in national securitj' could be termed constitutionally reasonable." 208 The tentative draft has the following language: The Committee considered and rejected language which would have recognized a comparable residuary power in the President not subject to prior judicial review to deal with purely domestic subversive groups. This is not, of course, to say that there may not be domestic threats to the national security. It is to say, however, that there is a valid distinction in how each ought to be treated insofar as these techniques are concerned. Would you care to comment further on those thoughts expressed by the ABA committee?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think they accord with my recollection, Senator Bayh, and I was on that committee.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I want to try to raise this question so we can get a little more depth into your concern over this matter of how you might respond to my concern without putting you in an untenable position relative to a case which might very well be before you. What circumstances do you feel might justify the use of electronic surveillance? Air.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWTELL. You mean beyond organized crime?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes; let's say beyond that.
Lewis F. Powell Jr.
Nominee
(R)
Mr. PCWELL. Senator, I hesitate, really, to try to get into factual situations. I realize the line, and I think I have said this, between what is a purely foreign security problem and a purely domestic security problem may be very difficult to draw in some cases. I would think in most cases it would not be difficult to draw. I think one would have to examine the facts very carefully. I think we would all feel far more optimistic about moving with confidence where you are dealing with foreign agents of a potential enemy than you would where you are dealing with Americans, particularly if all that they are doing independently of any foreign government of any kind is to express hostile opinions. I think these are the extremes, and I would rather not try to describe any factual situation. I have no idea, for example, what the actual facts are in the case before the Court. I think I read a couple of the lower court decisions once. I have not read the Sixth Circuit Court of Appeals' opinion.
Senator Birch Bayh (IN)

(D)
Senator BAYH. What is the test that you feel would be required for a tap to be placed under the 1968 act?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, the statute outlines a number of requirements that must be met. I am sure I cannot recall them all. There is the lequirement of showing probable cause, and of showing that the necessary evidence to convict the suspected criminal cannot be obtained in any other waj'. There must be a limitation on the time, which cannot exceed 30 days. If there should be a desire to extend that time, there must be a new application to the court and a fresh showing of the continued or new probable cause; and again the results of the tap have to be reported. There are some other requirements, but these are the essential ones, as I recall them.
Senator Birch Bayh (IN)

(D)
Senator BAYH. First of all, let me just say I think the Government has an obligation to protect itself from those who obviously by design have as their motive, their intention, to destroy the ability of this Government to function. I think this goes far beyond the right of selfexpression and this type of thing. I am trying to express concern and to 209 get your opinion relative to how you balance off this, on the one hand, versus the fact that it is possible to envision the chief law enforcement officials in this country—and I just take a hypothetical question—being motivated by politics so that criticism per se in essence becomes subversiveness. I think we must protect ourselves from this possibility. You mentioned probable cause. Would it be unreasonable for a judge or for a Senator to suggest that this requirement be applied to domestic subversives?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. AS I recall, some of the discussion we had on the Criminal Justice Committee tried to deal with this problem and that was considered. It was also considered whether or not perhaps other standards could not be prescribed by law. The situation is obviously different from organized crime. As 3-011 say, I don't think anybody would support uncontrolled surveillance against citizens because they criticized the Government. On the other hand, as you move closer and closer to cooperation and coordination with agents of an alien power who are trying to act in a hostile way to our Government, you can see that prescribing standards becomes extremely difficult.
Senator Birch Bayh (IN)

(D)
Senator BAYH. All right. Then 3-011 brought in a criterion there that might not exist. If I might just be specific. If you have "domestic insurgents" or subversives cooperating with a pattern with their national agents, that is one thing. I suppose it is fair to say that in your judgment that would be—would meet the criterion which would give the President the power without court sanction to go in to tap?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. In view of the possibility of this matter coming before the Court, I think I had better stand where I already stand, which is in support of the American Bar Association's standards, which I must say I think would meet the situation that you described.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let's take that in cooperation and concert with international agents. How does that differ from normal criminal activities? Why could not the protections and safeguards of the 1968 act be applied there?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, this was obviously one of the problems that caused the ABA committee to decide that it did not have enough information, really, to deal with the problem. In other words, I don't think—I speak only for myself; I have no idea what sort of information is available to the responsible people in government concerning possible acts of violence, for example, against a government building. It may be contemplated solely by Americans, not agents of a foreign power.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I would think that any attorney general or any chief law enforcement official of a community would have not only the right but the responsibility to keep the building from being blown up if he knew this were about to happen. But can you give me your thoughts relative to why this could not be done by first going to a Federal judge and going through the confidential procedure for putting a tap on under the 1968 act?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would certainly say this: If I were in the Congress of the United States I would address that problem very seriously. In other words, I would see if you could not devise standards that would be compatible both with the public interest and public protection, and with whatever necessities may exist with respect to responsible law 210 enforcement people; and I think in the talk that I made to the Richmond Bar Association I suggested, when I put this problem aside in a paragraph just in the interest of clarity, that this may be an area in which legislation is necessary.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, I concur that Congress would fulfill its responsibility if the law could be more definitive. But it has not. Congress has not followed the advice and thus we find ourselves in a position where there is no law. Thus a final determination, I suppose, is going to be made by those who sit on the high bench and this it is a very delicate thing to ask questions about; but it is an important thing for some of us to know before a man is placed on that Court. So could you give us your thoughts, which might be more generally relative to circumstances that might exist, factors in your mind which argue favorably in allowing a wiretap or against allowing a wiretap when we are talking about citizens of this country who have no close link or visible link or an}' link with foreign agents?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, I think I can say that I understand your concern and I think if I were sitting where you were I would be asking the same questions. The only hesitation I have is in resorting to speculation, and it would be speculating to a large extent because I have not studied how this problem might be dealt with. I would certainly undertake a study of it and I would think that many, if not most, of the safeguards that are in the act of 1968 could be applied. I would not wish to identify those that couldn't be—I may be getting into areas that could possibly embarrass me if I should be confirmed to the Court.
Senator Birch Bayh (IN)

(D)
Senator BAYH. AS much as I would like for you to be more definitive, I don't w T ant you to be if you are going to get across that line, and I know your sincerity and I know how your interests are. Let me pursue it from a little different angle. If you as a judge would make a determination that the information necessary to protect society, whether it is a Federal building or the President or Mr. Kissinger or whoever it might be, that steps could be taken—that the information could have been acquired by using the safeguards of the 1968 act, and yet they were not used, would you tend to believe that this was a breach of the constitutional rights of the individuals involved?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Conceivably that may be the very issue before the Court. I don't know enough about it to know. I can only say that I share, believe me, I share deeply the concerns that }TOU have expressed and that I know are in your mind, and I think ever}^ American shares deep concern at the thought of any monitoring by electronic surveillance or otherwise of what people think on political, social, or economic issues. But when you move into the area of threatening to commit a crime or conspiring to commit a crime, that seems to me to come very close to the provisions of title III.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let me try another time to be less specific. Instead of asking you about a hypothetical situation, which may be the case in the sixth circuit decision or others, do you feel that as a judge one of the factors you should consider in ruling on the constitutionality of a given act bj- a government agency or agent would be whether the same information could have been acquired by using the protection, secured by court order, to a tap rather than an Executive order to tap? Is that one factor you should consider in the deliberative process? 211
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would certainly consider all law and facts that seemed to me to be relevant.
Senator Birch Bayh (IN)

(D)
Senator BAYH. IS that relevant?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would think it would be relevant, and I would certainly consider the entire case in light of the Bill of Rights and the restrictions in the Constitution of the United States for the benefit of the people of our country.
Senator Birch Bayh (IN)

(D)
Senator BAYH. But one thing you would consider is whether the country could be secure, the community or the person involved be protected, that protection could be provided, by means other than an arbitrary Executive tap? That would be one factor you would consider in your deliberations?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would consider that and all other relevant facts and, circumstances under the law.
Senator Birch Bayh (IN)

(D)
Senator BAYH. DO you anticipate that the Court will have difficult}: in trying to distinguish between domestic insurgents or domestic agents and international agents?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, I wish you wouldn't ask me that question. I don't think I ought to speculate as to just what the Supreme Court might do, whether or not I am on it.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Would you, in your own mind, have difficulty, if you studied this for the ABA, differentiating between type of subversives?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think the record is pretty clear on that, what the ABA did.
Senator Birch Bayh (IN)

(D)
Mr. BAYH. HOW about Mr. Lewis Powell?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I was a member of the committee and voted for the action that prevailed, and I suppose that
Senator Birch Bayh (IN)

(D)
Senator BAYH. But do you feel—getting back to the initial line of questioning, which was the reason I opened this, realizing that some of my colleagues have questions in another area and I may have too if they don't ask them first—do you feel that because of the very strong position you have taken as a member of this ABA committee and because of some very strong positions you have taken in that FBI Journal article and some other statements, that you might be confronted already?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I might be what?
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU might already be confronted with the need to excuse yourself, minus these questions which you are handling very delicately and I think appropriately. But is it conceivable that you have already expressed such strong views in this area that you might be compelled to excuse yourself in a case that came before 3*011 on the subject matter?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would reserve final judgment until I were confronted with the problem, but I would say without any hesitation as I think my Richmond Bar talk demonstrated, I have no fixed view on the delicate area that you have been discussing. I do have a fixed view on the other two areas, and am on record, at least I had a fixed view when those reports were submitted. I have not studied either one in depth since then, but at that time I certainly agreed with the Crime Commission Report and the ABA position. But on the third issue, domestic subversion, I have no fixed view. I have not studied it with that care. I can see all sorts of problems that you have outlined.
Senator Birch Bayh (IN)

(D)
Senator BAYH. May I read just one quote from an article attributed to you entitled Civil Liberties Repression: Fact or Fiction? Law- 212 Abiding Citizens Have Nothing to Fear" under your byline, which appeared in the Richmond Times-Dispatch on August 1 of this year, which reads as follows: There may have been a time when a valid distinction existed between external and internal threats. But such a distinction is now largely meaningless. The radical left, strongly led and with a growing base of support, is plotting violence and revolution. Now, that may or may not be true. If they are, we have to deal with it. But first of all perhaps I should ask does the question from this article reflect your present views and aren't those views rather strong in the area? Aren't you rather specific in an area where you said you had not made up A'our mind already?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. The article was one that I wrote for the Richmond Times-Dispatch and it was picked up by the FBI Journal and more recently by the New York Times. I actually wrote the article, and I think this may be of interest in light of your line of questioning, not to address this subject specifically but to address the issue of repression; and if I may digress for a moment because this does seem to me to be important, I have four children. I have two who are in college, one in law school, a daughter at UCLA, and a son who is a sophomore at Washington and Lee. I spend a good deal of time with the A'oung and one of the things that distresses me most is the widely prevailing view among the young that America is a repressive society. Now, I can understand how a good many of them Avould have that impression and certainly acts of repression exist in this country; they have ahvays existed. And I am afraid they ahvays will; but it seems to me, though, they are episodic and not the result of any systematized point of view on the part of anybody, and on balance I have the deep conviction that America is the freest of all lands. I have a deep conviction that the Bill of Rights is reAr ered not only by the citizens but by the courts and the legislative and executive bodies of our country. As a lawyer I am satisfied that criminal justice, Avith all of its faults, and heaA^en knoAvs there are many, criminal justice nevertheless is commendable, on the Avhole, in the United States of America, and that most people, once they get to a court of record—I am not talking at the moment about problems Ave are all familiar Avith in the courts Avhere the misdemeanors are tried, but at the felony leA^el—I firml}' believe, and I cited, I believe, Judge Traynor, former chief justice of California, for the view that one is more likely to have a fair trial in the United States than in almost any other country in the Avorld, as long as the safeguards of a fair trial exist and as long as free speech and free press exist, the right to assemble exists in this country, I do not believe our society is repressiA'e. I think it is terribly unfortunate for the young of our people to think that it is. That is not to sscj that they shouldn't fight to eliminate AvhateA'er examples of repression or unfairness or injustice exist and there are plenty of them, but to turn against the structure of our Avhole free society seems to me a disaster. I Avrote the article Avith that point in mind. I Avas not Avriting a laAV revieAv article. I think the language you read—I think the language Avas accurate—Avas addressed primarily to this hazy area AA^here internal security and national security, AA^here internal dissidents are cooperating or working affirmatively AAdth, or are very sympathetic to countries, other poAvers, that may be enemies of the United States. 213 This is a verjT difficult area. Drawing that line, as I have said, is very perplexing. But to come back to your question, I do not consider it was a fixed view considering the circumstances under which it was expressed, the brevity of expression—I was not writing a law review article. And yet I would add one other point, Senator, just to be absolutely clear: If I should go on the Court, and this Sixth Circuit case comes up after I come on the Court, I will be very conscious of the fact that I have written a few things, very few, really, in this area; and it may well be that I will disqualify myself. At the moment I would rather not say positively that I will or I won't.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, I asked the question not to go to the specifics of the Tightness or wrongness of your allegations here but there are a number of people, perhaps older people, who are concerned about our being a repressive society. I don't have any youngsters in college. I have talked to a lot of good people who are, and 1 found one of the things that was impossible to do is to sterotype the so-called younger generation. Some of the loud voices don't necessarily represent the masses. You said that you would consider this. This is quite frankly a hazy area, and that is why I am asking the question. If it were written in the law, if we had cases on point, I would not be bothering with it.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I understand.
Senator Birch Bayh (IN)

(D)
Senator BAYH. This is a hazy area. Congress has not enacted and the Court has not ruled, and as one who is concerned with the propriety or impropriety or the appearance of impropriety, I think it is important that prospective nominees look hard at what they said so far as the responsibility they may have at a future date relative to a case that comes before them where what they have written and what they said prejudged the circumstances.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will not be insensitive to that, Senator Ba}7 h, I can assure you.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I will ask, Mr. Chairman, that two or three paragraphs of this quotation be put in the record because although the area is hazy and this is not a law review article, let me say that the wording is rather specific. Perhaps in fairness to you, Mr. Powell, rathei than taking two or three paragraphs, I ought to ask unanimous consent to put in the whole article.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would prefer that, Senator Bayh. (The material referred to follows:)
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let me just explore that a bit, because you talk about the concern for individual rights, free speech. Are you of the opinion that certain types of governmental activity can have a chilling effect on the exercise of these rights? In other words, would you give the committee your thoughts on this question: although we have a right to free speech, the right to exercise it, does the presence of governmental agents, the presence of people taking pictures, the presence of a tail on you, following you wherever you go, might this not inhibit one's use of these individual rights?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I can certainly say I don't want anybody tailing me, Senator Bayh. I think it is a little difficult to say, to describe the circumstances under which taking pictures would have inhibiting effect. There are a certain number of people who enjoy having their pictures taken. I would prefer not to, and it would chill me, I can tell you that.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, we are talking about a delicate balance here. You recognize that in speaking for the Justice Department, some high representatives of that branch of our Government have said that all that is necessary to protect these rights is to have self-discipline.Do you feel that self-discipline is enough to protect our right of free speech, our right to petition, and the others inculcated in the Bill of Rights and the 14th amendment?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, I certainly don't wish to comment on anything that
Senator Birch Bayh (IN)

(D)
Senator BAYH. I don't ask you to do that.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL (continuing). On what the Justice Department says. No; I would not trust any government to self-discipline, Senator Bayh. I think the purpose of the Bill of Rights was to assure there are limitations on what the Government can do.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The whole Bill of Rights was so designed, was it not? From the beginning of this Government our Founding Fathers had had rather sad experience with self-discipline and they put that Bill of Rights in there to try to provide some discipline other than self-discipline?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I come from the State that produced Mason, Jefferson, Madison. I think Mason wrote the first Declaration of Rights that went into a constitution in Virginia—well, in this country, perhaps was the model from which our Bill of Rights was drawn. 1 think it was Madison who led the fight to have the Bill of Rights incorporated into the Constitution for the reasons you have stated.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU mentioned the picture-taking incidents. If you had a peaceful assembly in a public place, and there were those present who were criticizing public officials or public policy peacefully, and agents or representatives of law enforcement agencies were present taking pictures around, you don't feel that would have a 218 chilling effect? This is not the kind that you keep for your scrapbook, you know. [Laughter.]
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is a little hard for me to answer that, Senator. I would think the facts and circumstances would have to be examined carefully. I don't know whether any law is applicable to this or not. I am sure there is no specific constitutional provision as to taking pictures, but I think one can conceive of circumstances where there are no laws and there certainly should be.
Senator Birch Bayh (IN)

(D)
Senator BAYH. If there are no laws and there is a court sitting to try to determine whether a person's individual privacy was violated, it should consider whether this was a reasonable tool to be used by the governmental agencies?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I am tempted to say yes, but the honest truth is that I have never considered this area. I have had the general feeling, and I have had one or two clients ask me about harassment by other individuals, not government, for example—telephone calls in the middle of the night, people constantly observing what someone else does. The laws in our State were woefully inadequate. I have not thought, although I must confess I have never studied it carefully, that there was any constitutional provision that would prevent a private citizen from doing this. I just have not studied this, Senator Bayh. But it is a practice that obviously is distasteful to the public, I would think, carried to the extremes that you indicated.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Let me just ask one more general question and then I want to yield back to my colleagues so they can ask some questions. Talking about the right of privacy rather than dealing with a specific factual situation, which perhaps you should not give us your opinion about—and, for the record, this is not just the present administration because this practice started earlier—talking about protecting the rights of individual citizens, we discovered, under the able leadership of our distinguished colleague from North Carolina, the chairman of the subcommittee of which I am proud to be a member, that the U.S. Army had embarked upon a massive sp}T ing effort in which some 7 million dossiers were compiled of average individual citizens, in which pictures were taken of anyone who carried a sign or made a speech protesting governmental policy; and we found Sunday school classes, young adult classes, that had been infiltrated b}T the Army; we found one peace rally in Colorado at which, I think, there were 119 people involved and about 50 of them were governmental agents—are these factors that should be taken into consideration by a judge in his deliberations to see whether a person's constitutional rights had been violated, whether that type of continuous activity was not the kind that the Supreme Court has talked about earlier when they discussed the chilling effect of the invasion of privacy?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would certainly not favor the type of activity you have described. I read about it in the press. To the extent it exists, I think it is extremely unfortunate; and if a case arose involving those facts, I would certainly think that the Court would have to consider them.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Thank you, Mr. Powell. Mr. Chairman, I will yield back.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Tunney?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Thank you very much, Mr. Chairman. 219 Mr. Powell, when President Nixon announced your nomination, he indicated that he felt that you would be a strict constructionist and a judicial conservative. What do those terms mean to you?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, the only think I have written out in preparation for this hearing is a partial answer to your question. I read in the press that this question had been asked others. I would say by way of preface that obviously I am not speaking for the President of the United States. I am trying to sort out my own views. As a lawyer, it rarely occurs to me to think, in fact, it has never occurred to me until recently to think of judicial philosophy. I do have a view as to the role of the Court and I will address that in a moment. I would think that one's philosophy, whether it be with respect to social or economic problems or political problems, whether he is conservative, liberal, or moderate, to use the current terminology, does not necessarily relate to his concept of the role of the Court as a judicial institution. So, if I may, with the permission of the chairman, I would like to read what I wrote out in very simple terms indicating my own concept of the role of the Court. My thoughts about the role of the Court, expressed as simply as I •can, may be summarized as follows: (1) I believe in the doctrine of separation of powers. The courts must ever be mindful not to encroach upon the areas of the responsibilities of the legislative and executive branches. (2) I believe in the Federal system, and that both State and Federal •courts must respect and preserve it according to the Constitution. (3) Having studied under then Professor Frankfurter, I believe in the importance of judicial restraint, especially at the Supreme Court level. This means as a general rule, but certainly not in all cases, avoiding a decision on constitutional grounds where other grounds are available. (4) As a lawyer I have a deep respect for precedent. I know the importance of continuity and reasonable predictability of the law. This is not to sajT that every decision is immutable but there is normally a strong presumption in favor of established precedent. (5) Cases should be decided on the basis of the law and facts before the Court. In deciding each case, the judge must make a conscious and determined effort to put aside his own political and economic views and his own predilections and to the extent possible to put aside whatever subtle influences may exist from his own background and experience. And, finally, although all the three branches of Government are duty bound to protect our liberties, the Court, as the final authorky, lias the greatest responsibility to uphold the rule of law and to protect and safeguard the liberties guaranteed all of our people by the Bill of Rights and the 14th amendment.
Senator John V. Tunney (CA)

(D)
Senator TUNNBY. Thank you very much, Mr. Powell, for that statement. I think that it is one which any person who studied the Constitution could basically agree with. I am curious about its application, however, to some specific areas. You talked about a strong presumption in favor of judicial precedent. On the other hand, I noted in an article or, rather an interview that you gave in Dunn's Review in September 1968, you answered a 09-267—71 IS 220 question to this effect: ""We have witnessed in recent years an unprecedented concern for the rights of accused persons. In many areas this was overdue but the net effect of court decisions over the past decade has been adverse to law enforcement."" Now, in a number of areas the decisions were made by the Supreme Court with a 5 to 4 majority. Do you feel that there is a strong presumption in favor of judicial precedent where you have a 5 to 4 majority of the Court?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I feel that that presumption exists with respect to all precedents. I think the lawyers would also add that generally the longer a case has existed, the more frequently it has been cited and relied upon, the stronger the presumption against overruling it inevitably becomes. I think, also, if a case is decided by a divided Court and is a recent decision, the presumption perhaps is less vigorous than if it had been decided earlier by a unanimous Court. Just, for example, nobody would suggest today that Brown against Board of Education, unanimously decided in 1954, is not the law of the land.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Mr. Powell, I have had an opportunity to read a number of things that you have written, and I would like to quote from some of your speeches and get your comments on what each means, because most of them were rather brief statements of principle,, and I think perhaps you could elaborate on them. You indicated again in this Dunn's Review, ""Crime in the Streets Interview,"" in 1968, and I quote: I do think the mass media have considerable responsibility for the spirit of lawlessness and violence that prevails in our country.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. DO you wish a comment on that?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. If you could, comment on that.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have not read that interview since the time I gave itr but if that is all I said, it may have been what I was thinking about was this: I have been deeply interested in education, and one of the things that has impressed itself very deeply on my consciousness in the education world is the impact of television, not only with respect to children in my home but on the basis of studies that have been made in the school systems. Television does have a profound effect on the young. With all due respect to our friends who arrange some of the television programs, there has, in my judgment, over a period of time—I think there has been improvement recently, by the way—but there has been, over a period of time, it would seem to me, far too much emphasis on violence, and violence is one of the scourges of our society; and it has concerned me deeply to see this emphasis on violence, viewed daily by millions of young children. I think that is what I had in mind.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Were you suggesting a possible censorship of mass media?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO, indeed.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. What are your views on censorship of the mass media or the press?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I believe deeply in the first amendment, and I certainly do not approve of any censorship. I don't think anything I have ever written suggested that.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Mr. Powell, I would like to ask you just a few questions with regard to civil rights. 221 Do you feel that the black man has achieved equality in our society under the law?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I do feel that legislation enacted by the Congress and for the most part by the States—and I speak of my State of Virginia, which has just adopted a new constitution; I served on the commission which wrote it—I think under the law our black citizens have achieved equality, I think, by law, perhaps, to a greater extent than in any other country with which I have familiarity. The question which remains quite clearly is whether, (1) in the implementation of the law at all levels and (2) in the hearts and minds of men, the desired equality has been attained, and I would answer, I think, both of those negatively at this point.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. When President Nixon accepted the nomination to the Presidency in Miami in 1968, he said: Let those who have the responsibility of enforcing our law and our judges who have the responsibility to interpret them be dedicated to the great principles of civil rights. I wonder if you could tell the committee in your own personal record what you have done to advance that dedication to those principles?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I had not written out anything, Senator Tunney, but I did take some notes to try to refresh my recollection. This is not a direct response as to civil rights but it may give you and other members of the committee, Mr. Chairman, some flavor of my extracurricular activities over a fairly long life. This may be an inappropriate comment, but I had a mother and father who had a deep conviction that all human beings were equal and that no one was better than anyone else; and I inherited that and have never departed from it. I have tried in addition to being active, very active practicing law and very active in the profession, to engage in outside activities which seem to me to be useful in my community and State. I was an early volunteer in legal aid work in the city of Richmond and went on the board of the Family Services Society which administered under the Community Chest most of the social work for both black and white. I became president of the Family Services Society fairly early in my career. The criminal justice project of the American Bar Association, which I mentioned earlier, was only one area in which I devoted much of my attention w T hen 1 was president of the bar association. The second area related to providing legal services to the poor and this meant primarily for the blacks, and I think some of the statements that have been filed here and to which I will not allude in any detail, document the role that I played in that critical point in our history. I have referred to the criminal justice project—there are 16 volumes of that and I think if any of you gentlemen have had an opportunity to review them you will be impressed, as T am, by the fact that they are designed to make meaningful the inscription on the front of the Supreme Court Building: ""Equal Justice Under Law."" I have spent a good deal of time in education, and soim of the statements I think were filed here have alluded to what was done and some of the things I didn't do, some of the things that, perhaps, I tried to do. I am sure that many would view in a different light 222 my service on the school board in the city of Richmond but we kept the schools open and we tried to be fair to all concerned. I have served as an officer and on the board of the American Bar foundation, and if anyone has examined a list of the studies that we have made and the publications that the American Bar Foundation has produced during my tenure over the past 2 years as president, I think he will find a fairly genuine concern for the areas about which you asked me. There are articles that I have written that may possibly be relevant in this area. I have had a special interest in the jury trial and its preservation and the avoiding of any impairment of it because it is so fundamental to our system. I did an article in the Washington and Lee Law Review on Jury Trials. I did a study, in fact took a leading role in trying to assure fair trial on the very thorny problem of fair trial—free press. Some of the gentlemen in the media are familiar with that and they didn't always agree with me, but I realize a balance had to be drawn and I think real progress has been made in that respect. I was a participant and a planner of the Conference on Legal Services that was held here in Washington jointly sponsored by the Justice Department and the OEO, at which the entire thrust of the 3-day conference was to assure more adequate legal services for the people who needed them most. For the most part they were our black brothers.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I have had the opportunity to read materials that have been made available to the committee concerning your record on civil rights, and I felt it was important that you have an opportunity to express yourself today. I think that your record has demonstrated that you are ver\r deeply concerned about giving equal opportunities to all Americans. I would like to ask just one or two more questions."
Senator Philip Hart (MI)

(D)
Senator HART. Mr. Chairman, if the Senator would permit me to ask just one question in pursuit of this
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. I jie\d.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator Hart.
Senator Philip Hart (MI)

(D)
Senator HART. Have 3^ou at any time in the last 10 years in writing or speech voiced opposition to a public accommodation law or ordinance?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Mr. Powell, do you believe that philosophy is a factor to be considered in confirmation of the Senate of a Supreme Court nominee, or do you feel that evaluation of personal philosophy by the Senate has the effect of politicizing the Court more than it should be politicized?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Has the effect of what, sir?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Politicizing the Court?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. AS I said, earlier, I would not consider any inquiry off limits. There may be some inquiries that I think would be inappropriate for me to respond to, but I certainly have no objection to any questions that you or other members of the committee may care to ask me about philosophy. I may not be able to field them very well, but I will do the best I can.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. One last question on that score: With regard to the Constitution, and it gets back to the question of strict constructionism, do you believe that the Constitution is a living document, 223 and one in which a judge is going to be called upon to make philosophic evaluations based on a 20th century context rather than an 18th century context? I am thinking particularly of the due process clause; and I am thinking specifically of one example where the Justices were called upon to make a determination of due process without any legal precedents, to my knowledge; that is, the Billy Sol Estes case, where television was allowed in the courtroom. Now, do you feel that under those circumstances that a Justice has to rely exclusively upon historical precedent, or do you feel the Justice can take a look at the world around him and apply a standard of fairness based on what he sees in the modern context?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think we would all agree that one must start from the language of the Constitution itself, endeavoring to ascertain the meaning of the language. I think we all recognize, as you imply, that certain language in the Constitution, such as the due process clause, the equal protection clause, the commerce clause, for example, in itself affords little in the way of specific guidelines merely as language. Of course, there is a vast body of history with respect to due process, sa}^, which certainly goes back to 1215, to Magna Carta, and all the English meaning that has been read into it over the years. But it seems to me that what is really important with respect to' the great freedom clauses—those you have mentioned—are the spirit and intent of the Bill of Rights, and obviously they have to be considered in the light of the case before the court.
Senator John V. Tunney (CA)

(D)
Senator TUNNEL Thank you, Mr. Chairman. I yield back. I would like to reserve time after other members of the committee have had an opportunity to question the witness.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Fong?
Senator Hiram Fong (HI)

()
Senator FONG. Thank you, Mr. Chairman. Mr. Powell, I want to join my colleagues in congratulating you on your nomination as Associate Justice of the Supreme Court. You are a man of considerable holdings, Mr. Powell. I presume sofar as holdings in real estate, you shouldn't have any trouble while acting as an Associate Justice, but you have quite a few holdings in various companies. How do you propose to handle your ownership in or stocks in these various companies?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, I think you were perhaps not in the room when Senator Bayh asked me that question. I am happy to answer it again.
Senator Hiram Fong (HI)

()
Senator FONG. I should like for you to do so.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Right. The shortest answer I can give, and I will elaborate to whatever extent you wish, is that I will endeavor to the best of my ability to comply with the canons of judicial ethics and with the relevant statute which is 28 U.S.C.A. 555. The canons, which are now undergoing revision, provide in substance on this point that a judge should dispose of securities, where he can do so without substantial loss, in companies which are likely to come before the Court. As I said to Senator Bayh in considerable detail, I have given this a good deal of consideration. He recognizes it as a real problem for me. I have read several articles that have been written on it,. 224 one by Professor Davis, a second that appeared in the Duke Law Review, "Law and Contemporary Problems." I would endeavor to try to minimize my problem by selling off securities where I can do so without the type of loss referred to in the canons.
Senator Hiram Fong (HI)

()
Senator FONG. In other words, you will reduce your holdings in these various corporations to holdings in a few companies?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That will be my objective.
Senator Hiram Fong (HI)

()
Senator FONG. Yes.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will have some problems, as I stated to Senator Bayh.
Senator Hiram Fong (HI)

()
Senator FONG. I can understand.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. There are several companies which for one reason or another I will not be able certainly in the foreseeable future to get out of.
Senator Hiram Fong (HI)

()
Senator FONG. Of course, if you have holdings in just a few companies, you could remember such holdings in these particular companies. If you have holdings in a lot of companies, there may come a time when you will forget that you have a particular holding?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That is right, and I can assure you that I will take whatever safeguards or steps may be appropriate or necessary so that I will know which companies I do have holdings in.
Senator Hiram Fong (HI)

()
Senator FONG. In other words, you will then be able to remember in which companies you have holdings. Then, if cases arise involving those companies, you will disqualify yourself, is that correct?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Hiram Fong (HI)

()
Senator FONG. I heard your remark this morning that within the last 2){ weeks, your views on the right of privacy have dramatically changed. Is that a serious statement, or was that made in jest?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. From a personal point of view, it was quite serious. I would hate to have to live in the spotlight that certainly descended on my family the night the President made this announcement. But that is not a lawyer's judgment. I think any human being would have reacted to it the same way. So, from the viewpoint of deciding legal issues, I think that was a statement made in jest.
Senator Hiram Fong (HI)

()
Senator FONG. DO you feel that your views on the right of privacy have changed because of the questioning and because of the various articles that have appeared in the paper, or because this committee has given it such a thrust
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Oh, no; I don't object at all to this committee performing its duty. I was talking about people stopping me on the street and people wanting to interview my wife and my daughter and coming into our home for conferences. We were delighted to see them all, but I had never seen quite so many before. [Laughter.]
Senator Hiram Fong (HI)

()
Senator FONG. I see. Have you changed in your thinking relative to the right of privacy within the past few weeks now that you have been nominated for the Supreme Court? It is one thing to be nominated to the Supreme Court and another to be a private lawyer.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, it certainly has changed my life and I would agree with you, my views have changed to that extent.
Senator Hiram Fong (HI)

()
Senator FONG. I see. I have not read your article in the Richmond Times-Dispatch in August, but I understand that you stated that 225 The outcry against wiretapping is a tempest in a teapot. Did you make that statement?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think I did, sir.
Senator Hiram Fong (HI)

()
Senator FONG. Could you give us the thrust of that article which appeared in the Richmond Times-Dispatch relative to wiretapping?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes, Senator Fong. And, again, as I previously said to Senator Bayh, this was written for the newspaper, directed primarily to the issue whether or not America has a repressive society, and my view was that the number of wiretaps as reported to the officer who administers the court system for the U.S. courts, and I have seen those reports each year, suggests that a relatively limited use has been made of the act of 1968?
Senator Hiram Fong (HI)

()
Senator FONG. I believe in that Times-Dispatch article you did state that there were only 309 wiretaps from 1969 to 1970; is that correct?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That is what I said, and I think that refers to the Federal cases.
Senator Hiram Fong (HI)

()
Senator FONG. Yes, Federal wiretaps.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Right. And I believe, Senator, that I have since seen a report that indicated that for last year there were 597, both State and Federal.
Senator Hiram Fong (HI)

()
Senator FONG. NOW, isn't it a fact as stated by Attorney General Mitchell that each wiretap averaged 1,498 intercepts, or separate telephone conversations? If that is true, then actually there were 462,882 seperate telephone conversations in the 309 cases?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have not seen those figures but I am sure you have it correct, if they are available.
Senator Hiram Fong (HI)

()
Senator FONG. AS I pointed out when Mr. Rehnquist was before this committee last week, I was one of four Senators who voted against final passage of the omnibus crime bill primarily because I thought that the wiretap provisions went too far. As early as May 1968, when the omnibus crime bill was under consideration, I voiced my strongly held opinion that wiretapping and electronic surveillance were enormously dangerous practices presenting an extraordinary threat to our individual liberties. Wiretapping not only picks up the conversation of the person whose telephone is tapped but also all the innocent people who happen to call or be called on that telephone or whose name is mentioned on that telephone. An unending and unknown force is put into effect when a telephone is tapped. This is true even of court-authorized wiretaps. Even more dangerous, I believe, are taps and bugging and surveillance without court order. In 1968, I stated that: In a democratic society privacy of communication is absolutely essential if citizens are to think and act creatively and constructively. Fear or suspicion that one's speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice -critical and constructive ideas. I pointed out that— When we open this door of privacy to the government . . . when the door is widely agape .. . it is only a short step to allowing the government to rifle our mails and search our homes. A nation which countenances these practices," I said, "soon ceases to be free." 226 As early as May 1968, I pointed out that I was fearful that if wiretapping and eavesdropping practices were allowed on a widespread scale, we would soon become a nation in fear—a police state. As the hearings this year before the Constitutional Rights Subcommittee clearly indicated, whether based upon fact or fancy, we are coming very close to beirg a nation in fear, all the way from Congressmen, to mayors, to soldiers, to students voicing their fears that they were under surveillance. I am, therefore, particularly interested in hearing from you directly as to your position in regard to wiretapping and electronic surveillance, in general as it relates to the fourth amendment, if you have any philosophical and legal reasons for such position.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have previously stated, Senator Fong, that my first opportunity to study this subject came when I was a member of the President's Crime Commission. I was appointed to the Subcommittee on Organized Crime, and it became fairly obvious to us, certainty to me, that unless the Government had the authority ta wiretap subject to court order in a strictly controlled system, that there would be little hope, if any, of ever coming to grips with organized crime in this country.
Senator Hiram Fong (HI)

()
Senator PONG. I agree with you we should have court authorized wiretapping on organized crime and in crimes dealing with the national security, but when we go further than that, I think we are really stepping onto very, very dangerous ground. For example, we allow wiretapping in anything that amounts to a felony. As long as it isnot a misdemeanor, the prosecutor can go in and ask for authorization to wiretap. How do you feel about that?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think the category that certainly the Crime Commission was concerned with was primarily organized crime, but it is a little difficult just to say organized crime and nothing else. Organized crime itself engages in criminal activity that covers a fairly broad spectrum of crimes running from murder to extortion, to arson, to kidnaping, and the like. So that I suppose that when the bill was drafted—I had nothing whatever to do with that—that it was deemed necessary to include a spectrum of the major felonies, and the American Bar Association Committee felt the same way when it recommended standards for State legislatures.
Senator Hiram Fong (HI)

()
Senator FONG. In some States, gambling is more than a misdemeanor.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, perhaps the term "gambling" needs to be defined. I am not—I don't know the answer to that. But our study of organized crime, to my surprise, indicated that gambling is the principal activity of organized crime in the final anslysis, and that of the profits that range fantastically from $5, $6, possibly $7 billion a year, from illegal and illicit activity, profits that come primarily from the poor and uneducated people of our country, most of those profits come from gambling. I see the problem that worries you but the other side of that problem is also very worrisome if we are ever going to bring organized crime within the law. This is what prompted us in the deliberations of the Crime Commission. As I said, I started out without having any preconceived notions whatever.
Senator Hiram Fong (HI)

()
Senator FONG. DO you feel that there should be wiretapping such as we have at the present time, when we find some of our people are 227 In constant fear, that their phones have been tapped. That fear is present whether it is well-founded or not. Is it good for such fear to be so widespread? People fear they have been tapped, followed, and bugged. Do you think this is good for the country?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I believe that the Congress was wise in putting, as I recall, a 7-year time limitation on title III; and I believe, Senator McGlellan has either introduced a resolution or requested that a study be made before the 7 years expire, addressed primarily to the concerns that you have mentioned, Senator, and I agree that these concerns do exist, and I think the Congress should watch this situation with the diligence which apparently you are.
Senator Hiram Fong (HI)

()
Senator FONG. I thank you for that answer, Mr. Powell. Mr. Powell, the fifth amendment reads in pertinent part that: No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. * * * Despite this I understand that in your dissent to President Johnson's National Crime Commission report, you not only opposed the Miranda decision of 1966 but you also opposed several Supreme Court decisions protecting the constitutional right against self-in crimination. It is my understanding that you suggested a constitutional amendment to overcome a 1965 ruling that a prosecutor may not comment on the refusal of a defendant to take the witness stand in a State court. Did you feel that way?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. There were seven members of the President's Crime Commission who did recommend that unless there could be legislative relief that consideration should be given to a constitutional amendment which would have the effect of overruling the case— I think it was Griffin against California—where, by a divided Court, the constitution of California which permitted comment on the failure of an accused to take the stand was held unconstitutional under that amendment.
Senator Hiram Fong (HI)

()
Senator FONG. DO you still feel that the prosecutor should have a right of comment in a case where the defendant does not take the stand?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. That was my opinion at that time, Senator. I have not given it mature consideration since. The Griffin case is now—this was 1964—-7 years old so it has become a precedent that I think is generally followed.
Senator Hiram Fong (HI)

()
Senator FONG. AS I understand, your criminal trial practice has been very limited; is that correct?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It has been nonexistent, Senator.
Senator Hiram Fong (HI)

()
Senator FONG. YOU have not practiced criminal law at all?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO, sir.
Senator Hiram Fong (HI)

()
Senator FONG. That makes it difficult for you to comment.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is very difficult.
Senator Hiram Fong (HI)

()
Senator FONG. I see. Our system of justice is really based on the premise that a man is innocent until proven guilty. If you say that the prosecution may comment on the defendant's not testifying, are you not really shifting the burden of proof to the accused to prove himself innocent rather than requiring the State to prove his guilt beyond a reasonable doubt?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, that argument is a very persuasive one. I think the argument that one deals with at the time, and again I am drawing 228 on a rather ancient memory, is that the language in the fifth amendment says no one shall be compelled to give testimony against himself in a criminal case, and it didn't seem to me that there was compulsion involved in the circumstances you described.
Senator Hiram Fong (HI)

()
Senator FONG. I am studying, Mr. Powell, several reforms of our Federal grand jury proceedings so as to assure greater legal protection to persons subpoenaed to testify as "witnesses on behalf of the Government" with a view to introducing remedial legislation. Without considering any specific legislative proposal, would you care to express your views on the practice of subpoenaing a witness to testify before a grand jury on behalf of the Government, when the Government has already produced evidence to that grand jury upon which an indictment is sought against this so-called "witness on behalf of the Government"? Is not the Government really asking a person to testify against himself in violation of the fifth amendment? In other words, where a grand jury has already been given evidence upon which they are going to indict this man, if they call him under subpoena and say, You come here and be a witness for the Government, isn't that really tricking him?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, I think perhaps I am not qualified to comment. I have never been before a grand jury in my life. I am not really familiar with the procedure you described. In fact, I never heard of it before.
Senator Hiram Fong (HI)

()
Senator FONG. Well, do you think it is fair to subpena a person before a grand jury as a witness for the Government after the prosecutor has presented evidence to that very grand jury sufficient to warrant an indictment of that person without his testimony and then ask him a lot of questions?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I wouldn't want to express a legal opinion, but I would say it is very unfriendly. [Laughter.]
Senator Hiram Fong (HI)

()
Senator FONG. YOU say it is unfriendly. I w T ill withdraw the question.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you very much.
Senator Hiram Fong (HI)

()
Senator FONG. The wiretapping provisions were designed to secure evidence so that you can indict an individual. Don't you think once an indictment has been obtained that we should stop there. We shouldn't keep on hounding a person until the day of trial. After a while he reaches the point where he feels he can't even talk to his attorney on the telephone.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, he certainly ought not to have his conversations with his lawyer wiretapped. Is that being done?
Senator Hiram Fong (HI)

()
Senator FONG. Many attornej^s tell me they fear that their wires have been tapped. They can't even talk to their clients. A client calls them up and his attorney says, "I am afraid our wire has been tapped." The client too feels he has been tapped. So, neither one can communicate with the other except by personal contact.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, I did not know there was wiretapping after a man had been brought to trial.
Senator Hiram Fong (HI)

()
Senator FONG. After indictment.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. After indictment? Pretrial?
Senator Hiram Fong (HI)

()
Senator FONG. Yes, sir. Evidence has been collected by wiretap to indict him. Do you think that one surveillance should stop there or 229 do you think that the Government should have the right to continue to wiretap until the date of trial?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. IS this with respect to—well, perhaps I shouldn't inquire. I really don't have a basis for a judgment, Senator. I was wondering whether, though, it did apply to the same crime on which the indictment was based or some other crime?
Senator Hiram Fong (HI)

()
Senator FONG. The same crime. Do you think it is unfair? It is unfriendly; isn't it?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is unfriendly. I am not familiar with the practice.
Senator Hiram Fong (HI)

()
Senator FONG. Thank you, Mr. Powell.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you, sir.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Thurmond?
Senator Strom Thurmond (SC)

(R)
Senator THURMOND. Mr. Chairman, I have no questions to ask. I would just like to take this opportunity to say a few words in behalf of Mr. Powell. Lewis F. Powell, Jr., is eminently suited and qualified to serve as an Associate Justice of the Supreme Court. He is widely regarded as one of the Nation's most respected and admired lawyers. He has served with distinction as president of the American Bar Association, president of the American College of Trial Lawyers, and president of the American Bar Foundation. As president of the American Bar Association in 1964 and 1965, Mr. Powell took an active role in spearheading an ABA program of compiling a set of standards for criminal justice. He also was largely responsible for the American Bar Association's endorsement of the OEO legal services program in February 1965. Mr. Powell is universally regarded by the local community and the people of his State and it appears that no individual or groups are opposed to him from his State. Throughout his distinguished legal career Lewis Powell has continually exhibited his ability to grasp legal issues and to analyze legal problems. His outstanding academic achievements show he is intellectually capable of upholding the high tradition upon which the Supreme Court was founded and that he will be a credit to the Court. For these reasons I heartily endorse the nomination of Lewis F. Powell, Jr., to serve as an Associate Justice of the Supreme Court of the United States. I thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Mathias? Senator Mathias.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Thank you, Mr. Chairman. I would like to join with other members of the committee in welcoming Mr. Powell here and offering him congratulations. Mr. Powell, through the jT ears you have gained a reputation which follows very appropriately in the footsteps of famous Virginians named to the committee, men as George Mason, James Madison, and Thomas Jefferson. As one of those who has very strongly defended the right to dissent, as protected by the first amendment, how do you feel about nonviolent demonstrations as a means to dissent?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think I have said many times, Senator Mathias, that I share the view you expressed with respect to the sacredness of the right to dissent. 1 have also said that it seems to me that certain types of demonstrations create a problem that you do not find with certain other types of expression; and I have expressed concern over 230 ifche types of demonstrations that are very difficult to control and that get out of hand and that lead to violence, and violence breeds reaction and the reaction sometimes is repressive. I think that, in a few sentences, sums up my view. I obviously believe in the right peacefully—peaceably I guess it is, to assemble. I would add this general observation, that the democratic processes in this country seem to me to be basically very sound; and I sometimes wonder if one tries to project himself into the future what historians will say if the massive street demonstration becomes too much of a substitute for the type of rational discussion where there can be a free exchange of views on a rational basis in a different type forum. That is a broad concern. 1 would say in fairness that the great majority of the demonstrations in the country, it seems to me, have been orderly and well conducted and well managed. There have been some notable exceptions.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. DO you find it difficult to reconcile the concept that the right to dissent is one of the cherished civil liberties protected ~bj the Constitution with the fact that you say we may have to qualify this, this right, if you are not to expose yourself to the dangers that you have outlined, the danger of repression?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. 1 am afraid I didn't quite follow you, Senator.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I think we agree that the right to dissent is a basic civil liberty
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Of the United States? You have commented that dissent, even nonviolent dissent, which gets out of hand, may become repressive in itself. At some point then it implies that you would qualify the right of dissent, even nonviolent dissent, and I wondered if you had any difficulty reconciling that with your basic concept of the civil liberty that is involved?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think what I intended to say was that the line between a peaceful demonstration and one that becomes not peaceful sometimes is difficult to draw. Demonstrations have been known to get out of hand. When they do get out of hand, then government must act; and so the consequences may be varied and somewhat unattractive. If they get out of hand they impair the rights of innocent people. If they get out of hand they also provoke action that sometimes may be overreaction, but I do not—I certainly do not express any reservation whatever as to the right peacefully to demonstrate.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. The difficult line it would seem would be the line that must be drawn by executive officials, policemen, and ultimately by courts as to where you make this qualification, where you come to the dividing line
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS (continuing). As to what is in fact a nonviolent demonstration of dissent and what has within it the seeds of a greater danger?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. One of the most important matters facing the organized American bar in the last several years has been that of affording legal services to not only the indigents but also to those citizens who have limited means. I wonder if you would outline for the committee what your position has been on this subject? 231
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I share the view you express, especially as of today, as contrasted perhaps with the midsixties when the bar moved very vigorously to try to broaden, as indeed the Congress did, the availability of legal services for the poor. The problem today with respect to the people who are not properly classified as the poor, but who have incomes above the poverty level but not large enough to enable them readily to hire counsel, is quite acute. Toward the end of my term as president of the American Bar Association I appointed a committee under the chairmanship of William McAlpin of St. Louis, I drew the resolution that specified the authority and powers of the commit tee, and it was directed to examine this whole problem including the question whether group legal services is an answer; and that committee has produced several reports. The American Bar Foundation has made an elaborate study. Nobody has yet found satisfactory answers that are broad enough to deal with the problem, but I certainly concur in your judgment that it is one of the more serous problems confronting the organized bar.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Would you feel that it is a function of the profession to provide this representation or does it become a function of government?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would hope that the profession can find reasonable solutions. I doubt that you will ever find a solution that assures that every citizen can find a lawyer when he wants him at a price which he can afford to pay. But there have been forward movements with respect to group legal services. There is currently some experimentation with respect to insurance to provide coverage comparable in a sense to Blue Cross; there has been some activity, particularly in the larger cities, with neighborhood legal offices and, of course, the old technique of lawyer referral is a system which I think almost every bar continues to utilize in this respect.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. AS a member of the President's Commission on Law Enforcement and Administration of Justice, you joined with several others in the minority statement which criticized the approach taken by the Supreme Court in Miranda and in the Escobido cases, and you later, writing for the FBI Law Enforcement Bulletin in October of this year, in effect, reaffirmed that judgment. You said, and I am quoting from the FBI Journal: "In recent years dramatic decisions of the Supreme Court have further strengthened the rights of accused persons and correspondingly limited the powers of law enforcement. There are no constitutional decisions in other countries comparable to those rendered in the cases of Escobido and Miranda." Now, I am wondering if, No. 1, you think these cases should be overruled?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would think perhaps, Senator Mathias, it would be unwise for me to answer that question directly. I will certainly say that as of the time the supplemental statement was written tor the Crime Commission Report that I thought the minority opinions were the sounder opinions. Those decisions, as I recall, were 5 to 4. I was concerned with the impact of those decisions on two separate but obviously related issues. One was the right of the law enforcement people to do on-the-scene interrogation primarily before they got back to the stationhouse and, second, was the impact of those decisions on voluntary confessions. 232 Now, the previous—on the first point as to on-the-scene interrogation, it seemed very difficult to me then, and perhaps it still is, although it is really not my field—I did ride in police cars in Richmond when I was on the Commission; and it is pretty awkward, really, when you are on the scene and a crime has been committed and you have one suspect or one fellow who you know was involved and not to be able to interrogate him to try to put your hands on who his confederates were; so it is a very real problem. The other problem relating to confessions is a more philosophical one. Most of the convictions in the criminal courts of our country arc on pleas of guilty, and most of the pleas of guilty resulted—our Commission studies disclosed—from admission of guilt, and it seemed at the time those decisions were decided, at least the minority of judges so thought, that the requirement that everyone be advised immediately of his right to counsel and that he understand clearly that he had that right then and there, would result in eliminating to a large extent the type of admissions that had been relied on so largely in the criminal justice system over the years. I personalty then preferred the English system which is based on whether or not the confessions are voluntary in fact, and that was the rule in the United States until those decisions. Now, I have not made any recent thorough study. I am aware that there are some analyses that have been made. I think there was one made by the Yale Law Journal that indicates that some of the fears that I had with respect to on-the-scene interrogation, for example, have not materialized in fact, but I personally have not seen the data.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. What I take you to be saying is that you feel that whatever safeguards are provided by the rules in those cases are inappropriate at this particular point in the criminal process?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. 1 would rather put it this way: We said in our supplemental statement that we recognized that the Court had very difficult issues to decide. Indeed on the facts in Escobido, I think, the Court decided the case, plainly correctly, but our concern was with respect to the scope of the opinion rather than with the precise decision. We thought that it was one of those very close constitutional issues and there was no criticism whatever of the majority. We recognized it had a perfectly clear line of argument to support its decision. I just happened to have the view that the minority opinion was the sounder one.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. In the next line in this same article, you used the phrase, I think you quoted before, that "The need is for greater protection—not of criminals but of law-abiding citizens." Would you say that increasing protection for law-abiding citizens is necessarily at the expense of the other?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO, not necessarily, and I would like to make it perfectly clear that I don't think I have ever criticized the Court for deciding these historic cas3s. In fact, in my talks to the New York State Bar Association and to the fourth circuit judicial conference, I emphasized the fact that probably most of the decisions of the so-called Warren court in the criminal justice area will be regarded as landmarks in the law. The two you mentioned were two that were exceptions from the broad sweep of my judgment on that line of decisions. I would make the general observation, Senator Mathias, and here I speak primarily as a citizen, not being in the criminal law myself, 233 that these cases have contributed to the delay that is now one of the more serious problems in the system. We all know, all of us who are lawyers know, that the criminal process now drags out in our country far too long either for the good of society or for the good of the person accused of crime; and I would think that the first priority in terms of all w T ho have responsibility—the Congress and the courts and the organized bar—is to address the problem of delay in courts. It is in the civil system also, but in the criminal system about which we are now talking it has reached the point that causes real concern.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. I certainly agree with you and that is why I joined with the other members of the committee here in sponsoring the Speedy Justice Act which
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS (continuing). Implements that concept. Would you go so far in providing greater protection for citizens as to support some compensation of victims of crime? Would that be one of the steps that the Government might take?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think the English have moved into that area and it has interested me; and I think I have suggested that it certainly merited serious study. It is a great tragedy to be a victim of crime and have no resources with which to compensate one's self. What it would cost in view of the magnitude of crime in our country, I have no idea; but this is a tragic void in our system.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. At least it is an area which you feel might be usefully reviewed and surveyed?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I certainly do.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Turning, if we might, to your own backyard, I understand that when a part of Chesterfield County was annexed by the city of Richmond, that you favored that annexation. I am also told that one of the effects of the annexation was to dilute the voting power of the black community within the city of Richmond since it annexed areas that are primarily white and the city council of Richmond is elected at large and not by wards or districts. I am wondering if you would comment on the role which you took in supporting that annexation?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will be happy to do so. My only connection with this entire subject, apart from being a citizen in the community, is this: The mayor of the city of Richmond and the city attorney had arranged a conference with the Attorney General to discuss the Attorney General's role under the Voting Rights Act of 1965 with respect to the annexation. For the benefit of members of the committee who may not be aware of it, the city of Richmond had annexed a portion of the adjacent county of Chesterfield and, under Virginia law, a city is separate and apart from all counties. In other words, it is not a part of any county. It has its own tax structure and the county has a separate tax structure.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. One of the anomalies that Maryland and Virginia share.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. DO they have
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. The city of Baltimore is in no county.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, you understand this part of the problem. The mayor asked me if I would accompany him to the conference because of my having served as chairman of the Commission which 234 wrote the council-manager form of government for the city of Richmond; and when we wrote that new charter for the city we abolished the ward system which had been an inequity in our city, as I viewed it, for many years; and we went to elections at large. There had been periodic discussions of going back to some form of ward system without regard to this annexation phase. I had also, when asked for my opinion, opposed going back to a ward S3r stem. A ward system in a city as small as Richmond seems to me to be undesirable. In any event I went with the mayor to see the Attorney General and I gave the Attorney General a memorandum which I think has been filed with this committee; and in that memorandum I argued that the annexation was in the best interests of all of the citizens of the community, and I feel that way deeply. It undoubtedly had the effect of diluting the black vote, but every annexation, certainly in States which have the population mix that Virginia has, would have that effect. I was in the preceding annexation case in the city of Richmond as counsel for Henrico County and I had some familiarity with annexation law and with the reasons why annexations are allowed in the State of Virginia; and I can assure this committee that those reasons had nothing whatever to do with race. They were economic, and if the city of Richmond is compelled to stay within its present boundaries, it will result, in the long run, in my judgment, in a disastrous situation for all of the people who are forced to live there.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. One final question, Mr. Chairman. It seems to me that the general public—what we might call law-abiding citizens—has the greatest interest of all in the reduction of the rate of recidivism and, therefore, in the kind of a criminal process which results in speedy trials, better prisoner rehabilitation, and a more effective penal system which is corrective and not just a period of storage. Would you agree? Would you say that this great mass of citizens—these law-abiding citizens—have themselves an interest in an enlightened criminal system, and in the safeguards which are provided by such a criminal system?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I certainly subscribe to that.
Senator Charles Mathias (MD)

(R)
Senator MATHIAS. Thank you very much, Mr. Chairman.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN (presiding). Thank you. Mr. Powell, I wish to congratulate you upon receiving this nomination and also strongly to commend the President for making the nomination. I find that after examining every bit of available information about you, there is no room for doubt about your qualifications. You appear to be eminently qualified, and you are so regarded by members of the bar throughout the countrv. I was especially pleased to receive two letters from leading members of the bar in my State, one from Mr. Edward L. Wright, a past president of the American Bar Association, and one from Mr. Courtney C. Crouch, a past president of the Arkansas Bar Association, both of whom know and worked with you in the American Bar Association. I would like to insert these letters in the record if they have not already been—one hasn't because 1 received it this morning. Mr. Wright, in his letter to me of November 2, stated: 235 I have known Lewis F. Powell, Jr., intimately for many years and have worked extremely closely with him in many American Bar Association matters. He is a truly great man, whether measured by his impeccable character, his outstandingintellect, or his unselfish activities in the genuine public interest. In my opinion he will become one of the outstanding and recognized jurists of all times to sit on the Supreme Court of the United States. I thought you would be interested to know what your friend and associate, Mr. Wright of Arkansas, said. (The letter referred to appears in the hearing on November 4, 1971.) Senator MUCLELLAN. I now quote from a letter I received this morning from Mr. Courtney C. Crouch, a past president of the Arkansas Bar Association. I believe he was president at the time you served as president of the American Bar Association. He says: I first became acquainted with Mr. Powell in 1964 as our paths crossed when he was President of the American Bar Association and I was President Elect of the Arkansas Bar Association, and since that time I have followed his career with great interest and hold him in the highest esteem. His reputation as one of the outstanding lawyers of the nation and his impeccable character are so well known that anything I might say would be guilding the lily. Suffice to say, in my opinion the President made a very wise selection when he sent the name of Lewis F. Powell, Jr., to the Senate. He will add great stature to our High Court. I was very pleased to receive those communications and others from my State.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you very much, Senator. Senator McClellan.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Mr. Powell, I have not known you very well personally. The first time 1 think that you came to my attention is when you served on the President's Crime Commission back in 1967. I admired your work there and I want to refer to some of it a moment later. In the meantime, I would like to ask you just a few questions and make a brief statement for the record. A lot of the questioning here at this hearing has centered on wiretapping. The Congress in 1968 passed the Omnibus Crime Control Act, title III of which dealt with wiretapping. I note from the record in the Senate that an effort was made in the Senate—title III of the 9-267—71 16 236 act was in the bill as reported out by the Senate Judiciary Committee—to strike out title III of the bill. You are familiar with this history, but I would point out for this record, that after considerable debate, the Senate voted 68 to 12 not to strike title III out of the bill. The part of title III dealing with the constitutional right of the President to direct and order wiretapping in security cases was discussed only briefly, but it was included in the motion, of course, to strike the whole title. No separate amendment was offered to strike that portion of the bill. We dealt with it on the theory that if the President had the constitutional power to order that kind of surveilliance to protect the county from foreign enemies or to protect the internal security of the country, anything that we legislated, anything we tried to do by limiting him, would be unconstitutional, even though there might be, in that particular area, still some doubt as to whether he has those powers. However, I do believe six Presidents, beginning with President Roosevelt, have recognized or assumed that they did have such powers under the Constitution and no effort by legislation, so far as 1 know, has ever been made to deny the power to the President because it was believed that it is was not his under the Constitution. When the 1968 act reached final passage in the Senate the vote was—with title III in it—72 to 4 for passage. In the House, the bill passed with title III in it by a vote of 368 to 17. The 1968 act authorizes, as you know, States to enact wiretappinglaws not inconsistent with the Federal statute. Since then, some 18 or 36 percent of the States have adopted similar statutes. Now, the point I wish to make is this: From my viewpoint the legislature, the Congress, has established national policy with respect to wiretapping by these votes, as I have indicated. Now, as a member of the court, although you might think this not a wise policy, and you might disagree with the policy that the legislature—the Congress—has adopted and you might feel it was unwise to grant these powers under court supervision, would you feel that you had a right simply because you may disagree with the policy to hold the act unconstitutional?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, as I have said, Senator, I would certainly not consider it appropriate to inject my own personal views with respect to a constitutional question of an act of Congress.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. In my judgment, when the Congress has spoken, that is the law of the land; it is the national policy; and it seems to me that those who disagree with that policy should find their remedy in the halls of Congress. It is no question of whether you favor the act, as I see it, or whether you like all of its provisions or don't. The only thing that would be before you would be did the accused receive a fair trial under due process; and is the statute constitutional? Let me ask the question another way. If you found it constitutional, would you, and I am sure you would, but I ask this for the record, would you enforce it as a member of the highest court of the land?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. The answer to that is clearly an affirmative.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Certainly. 237 Then, the view I have—and I won't ask you to agree or disagree— I feel where the Congress enacts a statute that is constitutional, it is binding on the Supreme Court. I don't think it has the right to, by edict or some process, to legislate or attempt to legislate that act away or to hold it to be invalid because of personal views on what policy should be. That is what "strict constructionism" is to me. I don't know what it means to others, but I believe if the act is constitutional, it is the Congress' prerogative to set national policy in those areas within the framework of the Constitution and that that policy should stand and not be overruled by a court because the court's philosophy is that it was bad policy.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I certainly subscribe to those views, Senator.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Mr. Powell, as I mentioned a while ago, you first came to my attention as a member of the President's Crime Commission in 1967. In the report of the Crime Commission, additional views were submitted by you and Mr. Jaworski, Mr. Malone, and Mr. Storey. I have before me the excerpts of those views from that report. I have read them and read them approvingly. May I inquire if you still subscribe to the general views expressed in the additional views that you submitted at that time?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. AS I think I said in response to questions from Senator Mathias, they were certainly my views at the time. I know of no reasons why at this time I should have different views although in fairness, it is a fact that some of the issues have not been reexamined by me since my study as a member of that Commission.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Very well. I have also before me a copy of your bar association of the city of Richmond address of April 15, 1971. You are familiar with that?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I am, sir.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. In general, does that still reflect your views?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It does.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. And your philosoplry?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes, sir.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. I should like to have these items inserted in the record without objection at this point. I have also asked the staff of the Criminal Laws and Procedures Subcommittee to prepare in a memorandum a summary of all wiretapping legislation and decisions and to attached thereto excerpts from some of the debate, particularly on the question of the President's powers, the memorandum of President Franklin D. Roosevelt, who realty initiated this concept that the President has the inherent power under the Constitution to order wiretapping in internal security cases, the memorandum from Mr. Tom Clark, Attorney General, to President Truman, dated July 1946, together with President Truman's notation thereto, and the memorandum of June 30, 1965, of President Lyndon Johnson regarding the same subject. I ask unanimous consent that these be inserted in the record so that readers of this record will have this information on this particular subject. Very well, they will be inserted. Are there any other quick questions before we recess for lunch? (The material referred to follows.)
Senator Sam Ervin (NC)

(D)
Senator ERVIN. I would just like to make some observations, since some of the questions have been asked. I think the Supreme Court in the Escobido case only held that the confession there was inadmissible as an involuntary confession. When 1 worked in this field, they said if a confession was induced by hope or extorted by fear, it was involuntary. The law enforcement officer in the Escobido case had the man in custody; he wanted to see his lawyer, and they said, in effect, "We won't let you see your lawyer unless you confess." We won't let you see your lawyer unless you confess—it was both a promise and a threat, and I don't believe the majority ought to sail out on an unknown sea and make some new law there because it was so unnecessary. Now, with reference to Miranda, Dr. Oliver Wendell Holmes said, Life and language are alike sacred. Homicide and verbicide—that is, violent treatment of a word with fatal results to its legitimate meaning—-are alike forbidden. I think in the Miranda ca^e, the Supreme Court majority committed verbicide in the self-incrimination clause. The self-incrimination clause says no person shall be compelled in any •criminal case to be a witness against himself. There is nothing compelled about a voluntary confession. The man is not even a witness there. So they committed verbicide on the plain words of the Constitution, with fatal consequence by 60 percent of the majority of the Court. Just one other observation: I say 1 agree with Senator Fong, if the self-incrimination clause does not prohibit comments by a prosecutor on the failure of the accused to testify, we might as well do away with the presumption of innocence. The prosecution has to prove beyond a reasonable doubt. We might as well repeal the self-incrimination clause because its purpose would be destroyed. I just don't think that the Constitution can possibly permit a prosecutor to make a comment on the failure of a man to go up and incriminate himself.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Senator Hart?
Senator Philip Hart (MI)

(D)
Senator HART. I take it, Mr. Chairman, that we are coming back?
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. Yes, sir; the Chair intended to recess until 2:30.
Senator Philip Hart (MI)

(D)
Senator HART. Perhaps just to help the record, Mr. Powell, it was my understanding that when you discussed the Escobido case, you indicated an appreciation of the reasoning of the majority, but your conclusion was that you were rather more persuaded by the minority. Is that correct?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think I said or T intended to say
Senator Philip Hart (MI)

(D)
Senator HART. Let me explain why I ask. Subsequently a direct question was asked, and you responded that the majority opinion seemed more persuasive, and I am just trying to get the record straight. 257
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO. I agree with Senator Ervin, if I had had to decide Escobido, I would have set his conviction aside on the facts. In other words, I think it was a clear case, as the Senator has said, of the man being denied the right to counsel, when the counsel was sitting outside the room where he was being interrogated. I said with respect to the philosophy of those two majority opinions where they went in terms of prescribing, as it seemed to me, rather fixed standards of procedure without regard ultimately to whether or not a confession was in fact voluntary, went further than I would have gone. So I would have agreed as of that date with the minority opinion in those two cases.
Senator Philip Hart (MI)

(D)
Senator HART. Thank you.
Senator John Little McClellan (AR)

(D)
Senator MCCLELLAN. The committee will stand in recess until 2:30. (Whereupon, at 1 p.m., the hearing was recessed, to reconvene at 2:30 p.m. this date.) AFTERNOON SESSION
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Hart, you may proceed.
Senator Philip Hart (MI)

(D)
Senator HART. Thank you, Mr. Chairman. Mr. Powell, may I add a welcome and congratulations which have already been voiced.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you, sir.
Senator Philip Hart (MI)

(D)
Senator HART. There is no doubt, I think, in the minds of any of us that you are a very distinguished member of the American bar. There is every mark of excellence, and while I listened, I am not sure I understand whether there is any problem at all in connection with your holdings, but in any event, as far as I am concerned, there is no problem in the sense of any alleged conflict of interest, so in the true traditional rules of thumb, the nominee's professional skill and conflict of interest, I would anticipate voting with the others favorably on the nomination. But there is, rightly or wrongly, this varied, less tangible item of so-called judicial philosophy. We spent much of last week wrestling with the other nominee. It is difficult to get a handle on it. I sense from your answers that you do, as does Mr. Rehnquist, believe there is an appropriate role and, indeed, a responsibility of the Senate to attempt to identify and to understand the philosophy of the nominee. Am I right on that?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have no doubt on that.
Senator Philip Hart (MI)

(D)
Senator HART. AS far as I am concerned, we have yet to come up with a method of doing this satisfactorily, either from our standpoint or yours. This morning you quite properly said you could not put yourself into the mind of the President, but see what comment you feel able to make, first, on this broad question, and then on a more narrow, and, perhaps, a more manageable question. The President who nominates you says that he believes that the Warren court—and I paraphrase—that the Warren court had moved in the directions which he would like to see reversed; that he has selected men whose philosophy indicates to him that they would 258 share that feeling about the Warren court and would, to the extent they would be able as Members of the Court, reverse the trend. As one who has felt that the Warren court was good medicine for this country, I find myself sort of presented with a miserable dilemma. You have all the marks of excellence and in your answers this morning suggested that you regarded much of the Warren court as landmark advances. How would you counsel me on this: if, indeed, I thought the Warren court made sense and that you were nominated, in order to reverse that, shouldn't I vote against you?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, that does pose an awkward question for me, Senator Hart. I quite understand though what concerns you. I think it is clear from the testimony I gave this morning that there are some decisions of the Warren court that trouble me, certainly at the time I studied them carefully, and this was the occasion of m}^ service on the President's Crime Commission. I also said that there were many other decisions which seemed to me to be decisions long overdue in our law. I tried to find, and have found, a paragraph in one of the talks that I gave—this was from an address I made to the Fourth Circuit Judicial Conference in 1965—and, if I may, I would like to read just one brief paragraph, which may shed some light. Before I do that, let me say this: As a lawyer, I never had any trouble with the Warren Court. I do not think many lawj^ers did. I do not have any trouble, I never have had trouble with the Supreme Court as an institution. I have disagreed with a good many decisions of various courts, and in decisions that are very, very close as to the issues involved, but respect for that tribunal and its role in our system has been one of the guiding lights in my professional career. I would never criticize the Court. But this paragraph that ma}- be relevant to what is in your mind reads as follows: The right to a fair trial, with all this term implies, is one of our most cherished rights. We have, therefore, welcomed the increased concern by law enforcement agencies and the courts alike in safeguarding a fair trail. Many of the decisions of the Supreme Court which are criticized today are likely in the perspective of history to be viewed as significant milestones in the ageless struggle to protect the individual from arbitrary and oppressive government.
Senator Philip Hart (MI)

(D)
Senator HART. When did you give that speech, Mr. Powell?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It was in 1965. I would place the month at June or July. This was after most of them—perhaps it was before, it was before Miranda—but I had in mind, for example, cases like Gideon and Map p.
Senator Philip Hart (MI)

(D)
Senator HAKT. I would welcome, Mr. Chairman, the statement to which Mr. Powell referred being made part of the record at this point.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. It is in the record. (The address referred to follows.)
Senator Philip Hart (MI)

(D)
Senator HART. This morning there was discussion about the degree to which there is a chilling effect on the exercise of first amendment rights because of Government threat or presence. The question in the minds of some of us has been the extent to which the court has an obligation to prevent, ecs an example, the presence of a photographer or a number of photographers and several observers in attendance at a meeting—whether the crowd is large or small—which is assembled to protest a policy of the Government. You said that clearly it is necessary and right that a citizen have the opportunity freely to protest, freely to advance an idea. Do you believe that that right could be thwarted by Government action of the sort I have described, and, if so, would you feel that it would be appropriate for a court to intervene between the Government and the individuals assembled?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. 1 would certainly think it conceivable that free expression could be thwarted in that way, given certain facts and circumstances, and if it were I would assume the first amendment would be applicable.
Senator Philip Hart (MI)

(D)
Senator HART. It is not a matter merely of adversion to publicity &s you, with understandable humor, described your own situation in the last two and a half weeks; it is the problem of most citizei.s Avho have to have a job in order to survive, who feel a deep resentment about some injustice in the society, some unwise Government policy; they want to do more than just write their Senator; the}' want to stand up in broad daylight and say, "you are wrong" and try to change it. Yet, if they know there is the camera there, the likelihood is great there will be a dossier file and, as we have learned in this committee, once the file is opened on you, you have one awful time finding out what goes into it, and you are never sure why you are dismissed from employment or find new employment difficult to get. You always have the nagging feeling that, "I had better not go to that meeting because who knows what happens when they take my picture." This describes a very real fear and not a very schizophrenic or even hypersensitive citizen, isn't that so? Isn't this something where we should not just dismiss it by saying, "Well, the Executive is trying to protect freedom."
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have not had any experience with this problem. If it is as serious as you would describe it, it would certainly seem to me a problem that needs attention. I assume, Senator Hart, you are not talking about the presence in a public meeting of photographers from the news media, are you? You are talking about Government photographers.
Senator Philip Hart (MI)

(D)
Senator HART. The Government.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would assume also that you are talking about peaceful assembly rather than situations in which it has already broken into violence.
Senator Philip Hart (MI)

(D)
Senator HART. Yes.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Right.
Senator Philip Hart (MI)

(D)
Senator HART. I am talking about the prospect
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Right.
Senator Philip Hart (MI)

(D)
Senator HART. And how it affects a citizen's ability to exercise his first amendment rights. 265 If increasingly our practice as a Government is to send out photographers and have the hall well secured, lots of people will find very sound reasons why they won't show up for that meeting, and it is this very suppression of ideas that was intended to be avoided by the first amendment; isn't that right?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. If that were widespread, I would have no hesitation in saying that it would seem to me to have chilling consequences. I would be surprised
Senator Philip Hart (MI)

(D)
Senator HART. Even if it applied only to one citizen it would have a chilling consequence on him?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would have to say in answer that I think it would have to depend somewhat on the citizen. I think I have known people who like publicity. But the facts you state exclude publicity. They include only surveillance by some governmental agency.
Senator Philip Hart (MI)

(D)
Senator HART. That is right. There has been much discussion about your article that was originally in the Times-Dispatch, and then in the New York Times. As I understand it, your general theme was that most of the fears about repressive actions by the Government were exaggerated or unfounded. You stated that whatever past validity there may have been in distinguishing between external threats of subversion and internal threats, that distinction now is largely meaningless because "the radical left is plotting a revolution and is collaborating with foreign Communist enemies." What was your concept of the radical left when you used that? Are you defining it as those groups who are conspiring with foreign enemies in this country and no others, or does it include those whom you referred to later on in that article as sympathizers with radical organizations?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It includes, Senator, groups that would like to destroy our democratic form of government.
Senator Philip Hart (MI)

(D)
Senator HART. Well, let us assume I want to destroy the democratic form of government and substitute a vegetarian government?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Substitute a what? What type of government?
Senator Philip Hart (MI)

(D)
Senator HART. Vegetarian, as distinguished from a Communist or Socialist. Does that desire, without an assumption that vegetarians will bomb, warrant the labeling of that vegetarian domestic group as the same as a foreign group and, therefore, to be put under surveillance without any court approval?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think the example you put is very far-removed from anything that I had in mind. The basic concept that I had in this regard, with regard to change, is that our system provides within its structure the means for peaceful change and any change that the people wish to impose or to achieve within the system is change which would be lawfully accomplished. The change that I would oppose, and there are organizations and individuals in this country who quite openly advocate this kind of change, is change without the system. They say the system no longer accommodates itself properly enough to the need for change, and I honestly disagree with those people. I believe that any change by coercion or force will in the long run be as harmful to the people who initiate it as to those who, in the beginning, may seem to be the victims. This is my basic philosophy on this 266 particular subject. I think you will see it running through a good many of the talks that I have made.
Senator Philip Hart (MI)

(D)
Senator HART. The Government must then be sensitive, first, to the identification and observation of those who seek to destroy us, not by change within the form but through the introduction of action not permitted by the form of the system.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Force, violence primarily.
Senator Philip Hart (MI)

(D)
Senator HART. And, secondly, while the Government properly is concerned to protect society against those elements, in a public meeting place and a public assembly, to what extent do you believe that this justifies the Government, through its police power, to shortcircuit the right peacefully to be assembled of those who do not share the methods that this minority group would use, and were in danger, therefore, of being guilty by association with this group advocating violence although they are in no way sympathetic to its program?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. YOU arc describing a group which may include some who would wish to use force and others who would not wish to use force? Obviously, that presents a problem. I do not know what the clear answer would be unless I know the facts precisely, and then I would try to know.
Senator Philip Hart (MI)

(D)
Senator HART. I may be doing an unkindness to even the most extreme of those who were here on May Day, but isn't it somewhat descriptive of the situation we had here on May Day where the vast majority, and the vast majority of those who were arrested, were being stuck with association with a handful who were upsetting automobiles? Do you think the Government is justified in making the kind of mass arrests, and subsequent acknowledgement that they were wrong, simply because there were a handful doing violence?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I was not here. I, of course, read the press accounts. I would assume, Senator Hart, that—and I had no responsibility so this is an assumption—that those in authority had to make a decision whether to allow the bridges across the river to be closed in pursuance of what w r as announced as a plan to close down Washington, D.C. Now, I agree with you from what I have heard from my own young that there were masses of innocent people who were there just to watch the fun, who were swept up in procedures that certainly no lawyer would recommend normally. Nowr , what happens involves questions of degree. I myself do not know^ how^ serious the problem was, whether there were other alternatives to prevent the city from being closed in the sense that the bridges were closed. I would snj, in all candor, that I think the public authorities had a responsibility to keep the bridges and streets open. I think they had a responsibility to accomplish that with a minimum of force. I think they had a responsibility to try to accomplish it without injury to or arrest of innocent people. But in large groups of people it does appear to me that sometimes it may be difficult, particularly with large numbers of police involved, to attain all of those rather obvious objectives.
Senator Philip Hart (MI)

(D)
Senator HART. AS you remind us, you were not here, but speaking again as a huvyer, and following each step of your explanation down to the point where you say that it should be done with a minimum of restraint on innocent people or however you phrased it—•—
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I said a minimum of force and every effort not to implicate innocent people. 267
Senator Philip Hart (MI)

(D)
Senator HART (continuing). Wouldn't just commonsense suggest with equal force that once a government discovered that it had on its hands people whom they could not prove to have been involved in any illegal conduct, that it should on its own initiative have released those people? Isn't that the mark of just a basically sensitive Department of Justice to release them rather than waiting until court orders were obtained to release them? If you were responsible for the cage in which 200 people were being contained or detained, and 3^011 discovered that there is no charge and there was no basis for a charge, not even an ability to identify, wouldn't a sensitive government unlock the cage?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Certainly the way you put it, there is only one answer, Senator.
Senator Philip Hart (MI)

(D)
Senator HART. I think that is not an inaccurate description of a situation that did exist with respect to a cage, with a larger number than 200. I do not ask you to agree that this is so.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will say—1 think I won't proceed. I was going to volunteer something that may be slightly irrelevant. I have told witnesses not to volunteer and here I find myself about to do it. [Laughter.]
Senator Philip Hart (MI)

(D)
Senator HART. I intruded in your exchange with Senator Tunney when he read the paragraph from President Nixon's acceptance speech in Miami where the then nominee and now President said that he would seek judges, who have the responsibility to interpret our laws, to be men dedicated to the great principles of civil rights. You described your concerns, and actions which you thought might suggest that this kind of concern on your part, and I made the point that in the last 10 years, in any event, you have never argued that public accommodation laws should be kept off the books. I think 1 should also add for the record a communication which was brought to the attention of the Senate through its introduction in the record on November 2, by Senator Byrd, who was sitting here with you, of a letter from a member of the Virginia House of Delegates representing Richmond and Henrico County, Dr. William Ferguson Reed. Doctor Reed is the first Negro elected to the Virginia General Assembly during this century, and that letter, written by Doctor Reed to Senator Byrd, strongly recommends your confirmation and makes reference to the fact that all regard you as a fair-minded man. I think it is well that you be aware of that comment by Doctor Reed.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Thank you, Senator.
Senator Philip Hart (MI)

(D)
Senator HART. I have no further, questions Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Kennedy?
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. 1, too, want to join my colleagues, Mr. Powell, in congratulating you for winning this nomination. I have had a number of friends and colleagues who have been involved in Government work in the Justice Department while you were serving as the President of the American Bar Association and who have been tremendously impressed not only with your skill as a lawyer and your objectivity and craftsmanship in the law but also with your sense of fairness and equity. An incident which I thought was quite revealing was related to me by Mr. Burke Marshall, who was serving in the Justice Department in the early part of 1960 and had a very difficult case involving a defendant 69-207—71 18 268 in Virginia. It was a very controversial situation and he called you and you responded affirmatively, immediately, and fulfilled the responsibility with great concern and judgment. I have had communication with former Attorney General Katzenbach as well, urging favorable consideration, from the former head of the Massachusetts Bar Association, and many of the lawyers in whom I have a great deal of confidence in my own State who worked with you in a number of different matters and who are all extremely kind and generous in their comments about you.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator Kennedy, excuse me, sir, but I think the episode or event to which Burke Marshall referred involved representing a defendant in an unpopular cause and I have heard that he gives me credit for having done it. The fact is, I did not do it. I was perfectly willing to do it. I was not in position to act. I think I was out of town at the time and one of my partners referred him to a very competent lawyer in Richmond, named George Allen, who actually represented the individual and, I think, got him off. But he did a whole lot better than I would have done because I never practiced criminal law.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. YOU got great credit from Burke Marshall and I am sure you would have done it had you been in town. You have gone over a number of my different areas of interest. I would like to review some aspects of these with you. You have commented on some of them, but I know it will be very helpful to me if you felt that you could make some further response in these areas of inquiry. A point has been made that many of your general views on social and political and constitutional questions have changed in the last 5 or 6 years, and I am wondering whether you have noticed any consistent pattern in whatever changes there have been. The view has been expressed, in light of your comments in "Civil Liberties Repression; Fact or Fiction?" that there may have been a hardening of your viewpoint, and a certain hardness creeping into some of your writings in the last few years. At the time you were president of the American Bar Association, your style was observed as being extremely balanced and measured, and then the recent publication used the phrases "standard leftist propaganda," "sheer nonsense," "predictable voices cried repression and brutality." You suggest that many persons generally concerned with civil liberties have joined "in promoting or accepting the propaganda of the radical left." Would you care to comment? Is this an unfair characterization of a change of view, or how would you respond to that suggestion?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would like to respond, Senator Kennedy. I do not know that I would say it is unfair, because one can never judge himself. I do not think my views have changed. I would say that a good deal depends, certainly in my own instance, and perhaps that of others, in terms of writing style as to what one is doing. When I write for a law review article, for example, or if I am making an address to lawyers, I will do more work in preparation, and I will be more careful in the articulation of my views than if I am asked to make a speech, say, to a lay group at a civic club luncheon or a businessmen's organization. 269 I think the quotations that you read into the record came from my one newspaper article. I ought to know better than to write any newspaper articles from now on. I wrote that primarily on the issue of repression and I dealt in a shorthand way with some very complex issues and, as a lawyer, that is a dangerous thing for one to do. My thesis was that America, if viewed fairly, overall, is certainly not a repressive society, and I cited four or five examples. You mentioned some of them. But coming back to your point of departure, while I suppose there may be subtle changes in one's views of which one is not altogether aware, I am not conscious of any philosophical change in my own judgments from those that I have expressed when I was president of the American Bar Association, and I was very careful about what I said.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. In this article, again on the question of repression, you talk about the charges of repression as no more than "standard leftist propaganda." and I must say many of us see in a good many of the recent events, not necessarily a consipiracy, but a pattern that has been directed against dissenters on the left. Of course we do, as you point out quite rightfully, retain many of our cherished freedoms. But when we observe a series of events like the Kent State and Jackson State shootings, with no indictments afterwards; and the large number of wiretap listening not approved by the courts; the FBI trying to make dissenters feel there is an agent behind every mailbox—and I have a copy of an FBI memo here; the spying on Earth Day rallies; the effort to suppress the Pentagon Papers during the debate on the end-the-war amendments; the efforts to revive and strengthen the Subversive Activities Control Board; the indiscriminate arrests and other law enforcement excesses of May Day—that, taken as a series of events all of which have taken place relatively recently—and I could go on—may very well be a legitimate concern to rational and moderate men. This series of events that has taken place, the ones which I have just indicated—May Day; spying at various peace rallies and Earth Day rallies, those being in attendance having absolutely no idea of participating in violence or disturbance; the increase in non-court-authorized wiretapping and the different definintion that is being used in wiretapping for national security cases, for example, which is different from the definition that was used back in 1968; you can take at least these examples, and I think there are others as well, and draw from them—or at least reasonable men, rational men, may draw from them—the conclusion that there has been increased repression, lessened respect for constitutional rights and civil liberties. And whether you agree or not with the characterization, at least it could be understood why rational men are interested about the threat of repression as well as those making as you point out, "standard leftist propaganda."
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would like to agree with you without qualification, and yet, Senator, I must say that it seems to me that one of the major contributing causes to what concerns you is a problem which has concerned me and has been the subject of several speeches that I have made since my ABA days, and this is a problem that has developed since then, and that has been the escalation of the use of coercion, force, and violence by certain groups and individuals, and this always 270 provokes a response, and the response tends to attain the level and sometimes to exceed the level of the provocation. I became concerned about what, for lack of a more precise term, has been called the New Left movement in this country primarilyr initially in my role as a trustee. At that time I was a trustee of two colleges. The impact became very visible at the college level, as we all know, and millions of innocent people got caught up in all this, and when a few people resort to force and coercion, innocent people are not able to exercise their rights, the government responds and we have these problems which you mention. We have some of the problems which I mentioned in some of the things I wrote. I do not know whether that response is helpful but that is basically the way I look at it.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, to give a few examples, we have been through spying on Earth Day demonstrations, war demonstrations, and the chilling effect that this has on innocent people. And 1 have in front of me a bulletin that is used by the Federal Bureau of Investigation, entitled "FBI Instructions for Agents in Pennsylvania." In this particular document it talks about how "There was a pretty general concensus that more interviews with these subjects and hangers-on are in order for plenty of reasons, chief of which are it will enhance the paranoia endemic in these circles and will further serve to get the point across there is an FBI agent behind every mailbox." 1 would like to ask that the bulletin—it is an unclassified bulletin— be put in the record.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. It may be. (Document given to Judiciary Committee staff.)
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. YOU know, I suppose, that one could be rightfully concerned about the FBI as a matter of policy conducting interviews with either subjects or hangers-on or whatever they define as hangers-on, whoever they define as subjects, to try to get the point across that there is an FBI agent behind ever}' mailbox. Does this sort of thing concern }TOU at all?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It certainly does.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, if you could just talk about that concern in terms of the impact of this sort of police activity on liberties of individuals, 1 would be interested in hearing that.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, the brief excerpt you read from the bulletin, which I have not seen, suggests policemen behind every bush. That would be an intolerable situation, and I do not think airybody would support that tjT pe of society.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. I suppose many of us who are very much concerned about the procedures that w T ere followed on May Day, which you talked about with Senator Hart, feel that other steps could have been taken, other procedures followed. Do you think it would not have been unreasonable to expect a greater sense of flexibility by the Government in planning for things like May Day, so that there would not have to be such a reliance on the kind of sweeping dragnet that was used in attempting to meet the threat or apparent threat of May Day? Do j'ou think there is a responsibility on the Government for that?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I would certainly think there is a responsibility on Government to try to plan to meet situations such as the one you described. 271
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. One of the things that was mentioned, I believe, earlier today, in terras of your expressing concern about rights and liberties, was the work you did to develop legal services for the needy people in our society. I understand that you did a magnificent job in establishing a system for delivering legal counsel to the poor, and you have spoken time and time again, eloquently, indeed, to make sure that the adversary systems worked fairly by making sure justice was not denied because of poverty, and, as I understand, you were troubled by a survey showing what large numbers of laymen and lawyers felt about the nature of legal justice given to those people. Yet you were quoted, from remarks before the Richmond Bar Association last April, as saying that we could cut back on some of the ""artificial rules"" engrafted in such cases like Miranda and Escobedo which solved some of the problems that troubled you. Would you care to comment on the apparent tension that would exist between these different approaches?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I do not recall the specific reference you make to the Richmond Bar Association talk, and yet, if I understand the thrust of your question, it relates to whether 1 would feel that some of the decisions which are designed to assure protection to the rights of persons accused of a crime are incompatible with the view I took requiring or emphasizing the desirability of having counsel in all cases involving the poor. I would see no inconsistency in that if you are talking about the views I have expressed, for example, with respect to Miranda.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Wasn't that pretty much the case in Miranda, the Miranda situation?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. The issue there was not whether counsel would be provided; it was whether, so far as X was concerned, all interrogation at the scene of a crime, for example, or the station house prior to arraignment, had to be conducted in the presence of counsel or such presence be waived consciously by the individual. Now, hero we have a judgment as to conflicting interests, society's interest on the one hand, to try to get at the facts of crime, and an accused person's interest, on the other hand, to have counsel at a fairly early stage. We wrestled with 1 His balancing of interests on the Crime Commission at great length. I forget the exact recommendation we made, but I think it was that gradually counsel should be made available at an early stage. I say gradually because there may not be enough lawyers to meet the demand. Certainly, as a minimum, there should be counsel if desired from arraignment through appeal and postconviction remedies. But again the facts and circumstances become relevant, such as in the Escobedo case where they had the man in the station house and the lawyer was sitting outside and they would not let him interview him, which as I stated, was quite outrageous.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. In the U.S. News & World Report of October 30, 1967, there was an article on ""Civil Disobedience: Prelude to Revolution?"" I do not know who gave the title, but in ai y event during the early part of it you talk about the disquieting trend so evident in our country ""toward organized lawlessness and even rebellion. One of the contributing causes is the doctrine of civil disobedience. This heresy was dramatically associated with the civil rights movement by the famous letter of Martin Luther King from a Birmingham j ail.'' 272 You say, ""As rationalized by Dr. King, some laws are 'just' and others 'unjust'."" Now, in the letter from Dr. King—I have excerpts of it here and I am quoting from it—he wrote: The answer lies in the fact that there are two types of laws: just and unjust. .. . I would agree with St. Augustine that ""an unjust law is no law at all"". Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a manmade code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. And he continues: I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its unjustice, is in reality expressing the highest respect for law. What is so distressing to you about that comment?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator, I wrote an article published in the Washington and Lee Law Review. Actually it was the Tucker Lecture that I gave to the Washington and Lee Law School in the Spring of 1966, I think, on the subject of civil disobedience and I think that article reflects accurately the views that I had at that time and still have. It is important to understand that when I use the term ""civil disobedience"" in a critical sense—and this is clear from the article to which I referred—T am not talking about the testing in good faith, usually on a lawyer's advice, of specific laws deemed to be both unjust and invalid, and this was the way the civil rights movement started. The early cases, all of which were sustained in the United States Supreme Court, involved broadly speaking two types of situations, tests as to the validity of segregation laws, such as against occupying any seat you wished in a bus, and tests involving the validity of badly drawn breach of the peace or disorderly conduct laws. I have never criticized the type of civil disobedience action that brings a law of that character into the courts for testing. The type of civil disobedience that seems to me to be destructive of the very fundamentals of our society was perhaps best expressed by the man who was most often cited as the father of it in this country, and that is Thoreau. He said, in substance, that he thought the best society was one with no laws at all. Now we can sympathize with that point of view, particularly in the age in which we live where there are so many laws. And yet it is basically contrary to our system which is predicated on the rule of law, and what happened to the civil rights movement was that, with respect to civil disobedience, that concept was picked up and expanded and extended, and instead of disobedience being confined to specific laws which were sought to be tested as to their constitutionality, civil disobedience was extended to any ill or grievance against society that particular individuals might have. For example, there were people who withheld their payment of certain percentages of their 273 income taxes because they did not wish any part of their taxes to be used in the Vietnam war. While I can understand that and understand and sympathize with their motive, it is perfectly obvious we would have total chaos if each of us undertakes to decide which appropriation acts of Congress were just or unjust and pays our taxes accordingly. So that broadly, in response to your question, I would say that it does seem to me that the doctrine of civil disobedience, as I have defined it and used it in the two or three occasions to which I have alluded, the definitive statement being in the Washington and Lee Law Review, is quite contrary to the rule of law in that it would allow each man to decide for himself which laws are unjust and then disobey those he regarded as unjust.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Your article at that time was directed towards the particular quotations from Dr. King which I have read here this afternoon. Your article also states: As rationalized by Dr. King, some laws are 'just' and others 'unjust'; each person may determine for himself which laws are 'unjust'; and each is free—indeed even morally bound—to violate tbd 'unjust' laws. And then you say: Coming at a time when discriminatory State and local laws still existed in the South, civil disobedience was quickly enthroned as a worthy doctrine. You referred on another occasion to Gandhi's civil disobedience campaign, in an article in the University of Florida Review, where you talk about Gandhi's historic struggle for independence. And yet this technique was used in India not as a means of recognizing constitutional rights, but to attain independence. You said that there were no courts, no established political institutions in India to which the issue of independence could be referred or contested. You said that there was no parallel situation in America where wrongs may be addressed in the courts and where we have established political institutions. I am just wondering whether Air. King thought there were remedies in courts or political institutions in the South as they related to the civil rights laws and existing statutes at that time.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, I intended to make it clear that certainly in the early stages of what has been called the Civil Rights or Civil Disobedience Movement, I thought Dr. King was entirely within his rights to bring those cases, and it hardly need be said that he will be recognized as one of the great leaders of his people. Senator Kennedy, I have thought a good deal about the subject of civil disobedience because it concerned me. At the time I wrote, the only article I could find when I was doing my research on it that was at all applicable to the modern situation w r as one by Burke Marshall published in the Virginia Law Review. There have been a number of discussions of it since. One that I brought with me here today and that, I think, is of interest is an essay by Archibald Cox which, I think, was published by the Harvard Press and I have no difference from former Solicitor General Cox as to his views with respect to civil disobedience. 1 have re-read the article. 1 think he expressed his views far better than I did, but in terms of the philosophic content and approach I would agree with him. 274
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. IS that the speech he made up at—-he made a marvelous speech on this which was just off the cuff at a time when they had a demonstration up at Harvard, and was later reprinted in its entirety.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO. This was an earlier one. This was published in 1967 by the Harvard Press. It has an essay in it by Professor Howe, and one by J. R. Wiggins who used to be managing editor of the Washington Post.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. If I could just, finally, Mr. Powell, get back again into an area that we have gone over to some extent—this is the wiretapping which is taking place. I know you have commented on a number of observations which have been made by my colleagues here. I just raise the point of the concern that the Congress has shown on this, as expressed during the comments of Senator McClellan earlier today, and set out certain criteria, and that is obviously the expression of Congress. Ultimately, you are going to be making the decisions as to whether the actions of Congress are consistent with the rights and liberties declared by the Constitution. The area which I think a number of us are very much concerned with is the expansion of wiretapping in national security cases. As you can well understand, although the statute permits national security wiretapping to be done, the question is who sets out what is national security, and who makes the decision in individual cases? Quite clearly, there has been an expansion of the concept of ""national security"" certainly from 1968 to now. And there is considerable unauthorized wiretapping which is based upon foreign and internal security precepts. You developed to some extent this morning your own views about the legitimate concerns over the indiscriminate use of wiretapping in domestic situations. We have seen, at least in my exchange of correspondence with the Justice Department, that there is three times as much listening as a result of taps and bugs not approved by the courts as they have been doing with court approval. So with the more expanded national security definition, there is an increase in the amount that is being done by taps and bugs without court approval. This raised some question in at least my mind about your statements when you were writing the article on civil liberties and repression, when you made the point about the chorus of unsubstantiated charges about the extent of Government wiretapping activity. And the outcry against wiretapping, you said, ""is a tempest in a teapot."" Don't you think we have a legitimate, very legitimate, right to be concerned about the general expansion of wiretapping, even under the existing laws which were passed by Congress?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think the subject obviously is one of great concern to the American people. I indicated before the luncheon break that I thought Congress was very wise in putting a 7-year limitation on the title III provisions of the Omnibus Crime Act. I was also glad to see that Senator McClellan has proposed an examination or investigation of this entire problem in terms of public concern. One point that I was trying to make in the article you mentioned is that there is confusion for a number of reasons, one of which is that the public generally does not understand the distinction between the 275 wiretapping authorized by the Omnibus Crime Act and that which has been exercised up to this point by Presidential prerogative, nor do many members of the public understand that in the latter category there are two subdivisions, one involving foreign activities and the other involving domestic activities, although the two sometimes blend together. It is a very difficult thing to analyze even if one is a lawyer and has studied it, and you have studied it far more than I have. I have not had access to the statistics you mentioned.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Well, can I just gather some degree of concern that you would have over the indiscriminate use of wiretapping? Do you see this as a •
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. If I may interrupt you
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Yes.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL (continuing). You should have no concern about my opposing indiscriminate use of wiretapping. I remember very well Mr. Justice Holmes' shorthand way of disposing of it. He said: ""Wiretapping is dirty business."" Of course, it is dirty business. The public interest, on the other hand, is to try to protect the innocent people from business that is equally dirty and in many instances dirtier. Rationalizing an 1 balancing thoss intsrests in the best way for total public interest is an extremely difficult and delicate problem, but I am quite mindful of the concerns which you have expressed.
Senator Ted Kennedy (MA)

(D)
Senator KENNEDY. Thank you, Mr. Chairman."
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Any further questions?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes, Mr. Chairman. Mr. Powell, if I might explore another area that has been a matter of some concern to me, specifically as far as you are concerned: I believe that if we do have an obligation to explore a prospective nominee's philosophy, the one area that is of most immediate concern to me, and would have the most dramatic effect on future generations, is the philosophic position of prospective nominees in the area of human rights, equal rights, equal opportunities for all of our citizens. Permit me, if I may, to explore that with you a bit. You have had the opportunity to serve your State and your home on various boards of education, I understand; is that not correct?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I have, sir.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you give us just a capside of that experience, please; what these specific offices were that you held?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I sat on the Richmond Public School Board for about 10 years; served on the State Board of Education of Virginia for 8 years.
Senator Birch Bayh (IN)

(D)
Senator BAYH. What were the general time frames?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. 1950 to 1959, as I recall, January 1959. I meant 1969.
Senator Birch Bayh (IN)

(D)
Senator BAYH. It is fair to say that those were rather tumultuous years so far as the school system of Virginia was concerned?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. One could hardly have picked a less peaceful time to serve on a school board.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Because of the experience you have had—and I think several members of this committee would vouch for the fact that the tumultuous character of the times seem to be increasing rather than decreasing, at least in the past several months, with reference to education—you will be called upon to put your philosophy 276 to work in deciding cases in the field of education. Being mindful you do not want to prejudge any cases that may come before you, could you give us your general philosophy relative to the importance of quality education, the importance of equal education and opportunities, how the constitutionality of this right comes into play?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I suppose every man who ever served on a school board pays lip service to quality education. I think most of them, certainly those w r ith whom I worked, w T ant to improve the overall quality of education. I have talked about it a great deal in my life. I have tried to do something about it, with what success I cannot say. I think also most people, certainly those with whom I worked, w r ere anxious that the qualit}7 of education would be equal for all students, and this has been a goal, perhaps not yet attained in many States. It is a goal to which the State of Virginia is striving. I think we still have a ways to go and yet I believe in my own city, although I have not been on the local board in a long time, that a great deal has been accomplished in that respect. I will add this, if I may, we had occasion to adopt a new Constitution in Virginia—I guess it was last year, wasn't it, Senator Spong? I served on the commission which recommended that Constitution to the legislature and we added to the bill of rights of Virginia a provision which, I think, is unique enough that I would like to read it into the record, if I may. It is rot lorg.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Please.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I may say that our Bill of Rights was drawn basically by George Mason, although the Statute on Religious Freedom was drawn by Thomas Jefferson, and until we wrote the new Constitution the Jefferson statute was not incorporated directly into the Bill of Rights; it was in a separate place in the Constitution. But in any event, the provision I now wish to read relates to education, and it may be unique; we thought it was. This is in the same article that deals with the necessity to preserve free government: That free government rests, as does all progress, upon the broadest possible diffusion of knowledge and that the Commonwealth shall avail itself of those talents which nature has sown so liberally among its people by assuring the opportunities for their fullest development by an effective system of education throughout the Commonwealth. There is an education article in this new Constitution which imposes far greater authority in the State board of education than it had before. The prime authority for what happened in the public school systems, until this Constitution was adopted, lay on the local boards which were provided for by the Constitution itself; in other words, school board members were, in effect, constitutional officers. But now under the newly adopted constitution of Virginia, the State itself, the State board of education, has a far higher degree of responsibility, the view being that perhaps only in this way could we raise the general quality of education for whites and blacks throughout the State to a satisfactorjr level. In other words, we had the problem of some of the counties being very poor compared to counties that were more affluent, with the quality of schools in one county varying widely as compared to those in another county, and with different standards being applied with respect to meeting the Supreme Court tests for unitary school systems. So, perhaps, one answer to your question is that I have had some part, 277 although a modest part, in moving Virginia forward to what I believe today is a progressive and fair policy and posture with respect to public education.
Senator Birch Bayh (IN)

(D)
Senator BAYH. YOU did support the provisions to which you refer when they were being debated?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I had a hand in drafting both of them, although the principal architect of both of those was former Governor Colgate Darden, who was a colleague on the Commission. He was chairman of the Education Subcommittee but he and I had served 8 years together on the State board of education and our views had been substantially identical throughout that entire period.
Senator Birch Bayh (IN)

(D)
Senator BAYH. And after they had been drafted, you supported them?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Oh, yes; yes, indeed.
Senator Birch Bayh (IN)

(D)
Senator BAYH. May I ask you, please, to just give your thoughts relative to how some of the following programs or strategies fit into or should be excluded from the provisions of the Constitution, which seem to be laudatory, very similar to the doctrine put down in Brown v. Board of Education. You were serving in an official capacity in the educational system at the time that Brown v. Board came down?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Yes.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Perhaps you could give us the benefit of your opinion at the time and, if this opinion was changed, I would personally like to know it. When Brown v. Board of Education came down, it is fair to say a number of the school districts resorted to certain types of activities to avoid having to meet the criterion of Brown v. Board of Education. Could you give your opinion at the time as to what you did, what you felt should be done in the Virginia school system on which you served and if this is the same feeling we would like to know it, or if you have different thoughts now, I would like to have those thoughts, too.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Senator Bayh, that would open up a very long story, obviously. I will try to telescope it and if there is anything I say you would like to follov. up on, of course, please do so.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, let me say I think most of us have been apprised of your record, the fact that you did serve for a number of years in the two specific capacities. If I might just deal with specifics so that the different questions won't be repetitive
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. All right.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The items of the Gray Commission report, what your thoughts were then, what they are now; the whole matter of whether a school should be closed or not closed to avoid meeting Brown v. Board of Education; the fee system, busing, the dual attendance system, did those have relevance in this experience, and if they did, I would like for you to emphasize your feelings on them now, as well as what your position was at the time you served in this official capacity.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Well, at the time of Brown v. Board of Education, Virginia, as was true, I think, of every other Southern State, by its Constitution and statutes and long practice, followed the doctrine of Plessy v. Ferguson. We had segregated schools, completely so. When the Brown case came down, our board—there were five people on the board, four whites and one black—resolved that we would comply with the law and we issued a little statement to that effect. 278 We also made another decision that resulted in the record, the printed record, being fairly sparse, and that is in view of the emotional situation that began to develop, no member of the school board, white or black, would make any public speeches, and we would direct and concentrate our attention on trying to keep the public schools open until the conflict between the Federal and State law was resolved. If you will look back on it now, the situation may be hard to understand. But if one lived through those days, as Senator Spong and I did, he may have a different perspective. As you know, we had the great misfortune in Virginia for the schools to be closed in Norfolk, then the second city in the Commonwealth; the schools were also closed in Front Royal, Charlottesville, and Prince Edward County. There were strong voices in our State that wished to close the schools if there was any integration. So the task of my board, and my task as I conceived it, was to keep the schools open, and that we did. Finally they were integrated and we ran into all sorts of criticism, primarily from the whites.
Senator Birch Bayh (IN)

(D)
Senator BAYH. The Gray Commission proposal of November 11, 1955—may I read from a portion of that and then ask you to put the Gray Commission in proper perspective as to what it was designed to do, and then give us your thoughts on that, please. Commission further proposes legislation to provide that no child be required to attend that school wherein both white and colored children are taught and that the parents of those children who object to integrated schools or who live in communities where no public schools are operating be given tuition grants for educational purpose.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I was not a member of that commission. I did not support its provisions.
Senator Birch Bayh (IN)

(D)
Senator BAYPI. YOU did not support its provisions?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO, I did not,
Senator Birch Bayh (IN)

(D)
Senator BAYH. Did you believe that the vehicle of tuition grants had or has a proper place, a proper role to play in educational systems of the countnT ?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. Lot me come back to the preceding answer, Senator, and then I will come to the question you just asked. The Gray Commission recommendation resulted in certain laws being enacted in Virginia, and there was a long period of time when school boards were literally caught in the middle. The Brown decision had said: "Integrate these schools with all deliberate speed." The State legislature said, in effect: "All deliberate speed doesn't mean now; it means next year, or some time off in the future," so our school board did continue to operate segregated schools, as I indicated earlier, until we were finally forced by a court to integrate. I think that is the sequence—Senator Spong may be sharper in his recollection than I was—-but I remember very painfully the dilemma we were in, and the critical test in Richmond came in an oblique and indirect way when we wished to build two new high schools. It was perfectly obvious if we built them in the locations recommended by the school board, that they would become integrated in a fairly short period of time, and this is not the place to go into all the details as to the long weeks and months the board spent trying to work it out so we could obtain the necessary funds to build those schools. There were many in the community who did not want to build them. 279 We finally obtained authorization from council at sort of a crisis meeting, at which this issue was thrashed out, and when we walked into the city council that night, I had no idea what the outcome would be. It was that close.
Senator Birch Bayh (IN)

(D)
Senator BAYH. What was the final resolution of it?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. The final resolution was that we were authorized by resolution of council to build the schools, although there was a subsequent attempt that never reached fruition to cut oft funds, even within the city of Richmond, for any school which was integrated. Our school board had full responsibility for running the schools, but money had to be raised by the city council as we did not have the jurisdiction that some school boards have in other States of being able to make a levy in order to support public education. So we had to sell our program to city council.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Well, there has been some confusion reading the news dispatches relative to what the result of this decision was. Did the decision result in going ahead and building two high schools that were all white, or did it result in the building of two high schools that became integrated or were in the process of being integrated?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It resulted in building two high schools, one is the George Wythe High School and the other the John Marshall—two pretty good names—and I could not say because I do not remember when they became integrated. It was obvious in view of the locations, anyone familiar with my city would know, that they would be integrated, and they were integrated.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Could you give us your thoughts relative to the busing question without prejudging any case that may come before you. Let me be just a bit more specific because 1 realize the breadth of the question. If we believe, as you believe, in the Virginia Constitution, in accordance with making the educational institution available for all of our citizens, does bvising fit in this picture?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I think it is fairly obvious that there will be cases going to the Supreme Court involving busing.
Senator Birch Bayh (IN)

(D)
Senator BAYH. I realize that.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. SO I am quite conscious of the restraint that I think would be appropriate for me to exercise with respect to this subject. I would say this, though, it is fairly obvious but I will sur it nevertheless, that busing has been used in public education for many years, and I am sure it will continue to be used in public education for many years. In many instances it is a necessit}\ A particular case as to whether busing is or is not in the best interest of the children and of education, I think would have to be resolved on the facts and in light of the Supreme Court decisions.
Senator Birch Bayh (IN)

(D)
Senator BAYH. DO you feel that we have a problem in education in the disparity in the ability to finance schools? We are talking about making educational experience meaningful—is that something that should be considered in the overall picture?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. YOU are thinking about the problem addressed by the California court?
Senator Birch Bayh (IN)

(D)
Senator BAYH. Yes, sir. I am not asking you to overrule or affirm the California decision, but is this something that you would consider in the light of your past experience in educational matters in Virginia? 280
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is a problem which worried us a great deal when I was on the State board of education primarily because we were more or less powerless to deal with it.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Without prejudging it, is this matter we are talking about of quality education, and the accessibility of it, one we need to consider insofar as looking at the plans from the judicial standpoint?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It certainly is.
Senator Birch Bayh (IN)

(D)
Senator BAYH. Mr. Chairman, I would like to put in the record, if I may, a letter from Jean Camper Cahn of the Urban Law Institute of Antioch College, and inasmuch as our witness has been very patient, and I appreciate his patience, I would like to say, if I might just make it a bit more concise, it is an 18-page recitation, double-spaced, Mr. Chairman, of the contribution that our nominee has made in the legal service program. I might just read brief excerpts from it: My letter is limited to those matters known to me personally in my capacity as the official charged with operational responsibility for bringing the legal service program into being and for representing the O1CO through months of intense discussions. Mrs. Cahn goes on to emphasize she has had continuing opportunity to observe both Mr. Powell's statesmanship in broadening the organized bar's commitment to legal services and equally the effect of his fierce insistence on preserving the professional integrity of the program and insulating the program from any improper political pressures. She continues by saying: The extraordinary impact that Mr. Powell's efforts had then, and the imprimatur they have left on the Legal Service Program—still clearly evident some seven years later—have direct bearing upon the matter presently before your Committee. She goes on to document in some degree the contribution that Mr. Powell made at the early stages of the implementation of the Legal Services program in OEO, and she points out and specifically, I quote again: In deciding to respond affirmatively, Lewis Powell knew that the leadership was ahead of "the troops" and yet he decided to take the gamble. There can be no doubt about the fact that Lewis Powell placed his credibility and leadership on the line with full awareness of the risks and dangers but impelled nonetheless by his own deeply held sense of the profession's public trust. One concluding remark that I think is particularly important to some of us who must make this judgment ultimately on philosophy is where you draw the line with someone you have worked with, as 1 have worked with you, and while we do not agree on all issues, I certainly respected the contribution you made and I would just like to read this final quote from this letter in which she says, Mrs. Cahn says: By way of a £nal observation I would note that while I support Lewis Powell's nomination—and have limited the scope of my remarks to those facts which I know at first hand—I do not base that support on the fact that Mr. Powell is a supporter of the Legal Services Program. My support is more fundamental because I would expect that while we agree on some things, we would disagree on others. I would not want to rest my support solely on agreement or disagreement on some particular subject. My support is based upon the fact that I am drawn inescapably to the sense that Lewis Powell is, above all, humane; that he has a capacity to empathize, to respond to the plight of a single human being to a degree that transcends ideologies of fixed positions. And it is that ultimate capacity to respond with humanity to individualized instances of injustice and hurt that is the best and only guarantee 281 I would take that his conscience and his very soul will wrestle with every case until he can live in peace with a decision that embodies a sense of decency and fair play and common sense. That is quite a testimonial, I would say, Mr. Powell, and I want to compliment you on the confidence that this lady has in you.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. It is far more than any man deserves and I appreciate your reading it. (The letter referred to follows:)
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Scott?
Senator Hugh Scott (PA)

(R)
Senator SCOTT. Mr. Chairman, I really will not take the time of the committee at any length at all and perhaps for a different reason. I confess to a certain modesty, Mr. Powell, in attempting to develop any legal knowledge of mine that would even thrust itself in a crossexamination of you, because you are an eminent lawj^er with the highest qualifications I have known for many years, and were I to 286 engage in any attempt at learned discourse it would appear for me to be an unequal colloquy, if not unequal contest, and I know precisely what I am going to do when these hearings are closed. 1 will have a statement, as will other Senators. I commend you on your legal ability, your acumen, your reputation for personal integrity, and your vast knowledge of the law, which has been put to good, compassionate, civic usage, as well as to the pursuit of those occupations which are commonly associated with a good trial lawyer. So I will not take the time of the committee, because by yielding back nry time perhaps I can expedite these proceedings and I have already missed the p.m. deadlines and I may have missed the a.m. deadlines, too. Thank you, Mr. Chairman.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Senator Tunney?
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Mr. Chairman, I have just one last question. Mr. Powell, I noticed in some of your writings that you addressed yourself to expediting criminal law procedures, and I was wondering if you could tell the committee two things: one, a general question, with perhaps a general answer, on what you feel has to be done to expedite criminal procedures in this country; and, second, more specifically, what you feel that a Supreme Court Justice ought to do to help expedite criminal procedures.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I will comment on your second question first. I know from the addresses which I have heard him deliver, as perhaps you do, Chief Justice Burger puts this subject at the top of his list of necessary reforms in the criminal justice system. I really do not know to what extent other Justices of the Court would take part in an organized effort led by the Chief Justice, but I would hope I would be on that team, if I am confirmed, to assist him in that because unless we find more effective ways of expediting the criminal justice system, in particular, the entire system could collapse. I think it is that serious. It is fairly easy to make that sort of generalization. It is not so easy to come up with any answers. Some of the problems are quite intractable, because they are rooted in our Constitution. No one w T ould abandon constitutional rights in the interest of speed, and yet to cite one area in which there must be a better system developed to minimize delajs in the ending of criminal causes, I refer to the use of habeas corpus to transfer cases which have gone through the State courts into the Federal s}^stem for postconviction review. This was necessary, in my judgment, certainly with respect to most States at a time when criminal procedure and practice in those States had not really caught up with the constitutional safeguards that we are all now familiar with. The American Bar Foundation has initiated a study—there have been a good many, but none yet has produced completely satisfactory residts—an empirical study taking a State or two as examples to try to ascertain exactly what is happening with respect to the flood of habeas corpus proceedings. The criminal justice project of the American Bar Association addressed this problem and concluded that the best answer was to try to make the State processes conform to constitutional requirements, and to have records made that these constitutional requirements were, in fact, met, so that once an accused 287 person had gone through the State system he would have received his constitutional rights; and, second, there would be a record of it so that there would be no occasion for Federal de novo review and starting the whole chain back through the courts. If you would move to the area of appellate practice, I think any lawyer who has been in the appellate courts will recognize that much can be done to speed appellate practice, particularly with respect to the requirements for records. My circuit, the fourth circuit, has been a leader in minimizing the requirements for records. I think a great deal more can be done. I think a great deal more can be done, perhaps, in exercising restraint in the writing of opinions by judges. At the moment I am not addressing myself to the Supreme Court; I am thinking perhaps about all courts and when one looks at the flood of cases that come into one's law library, and the feeling apparently that every judge has to write an opinion at the district court level—of course, he must make findings of the fact and conclusions of law, and sometimes a case requires an opinion—but there are many things in this broad area that can and must be done so that the entire system can be expedited.
Senator John V. Tunney (CA)

(D)
Senator TUNNEY. Thank you very much, Mr. Powell. T heard before you came before this committee, after you were nominated by the President, that you were a man of brilliance, compassion, and imagination, and certainly your testimony here today has demonstrated those qualities. Thank you.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I thank you very much, sir.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. YOU made a very fine witness.
Senator Philip Hart (MI)

(D)
Senator HART. I want to ask one question that I did not ask Mr. Powell. Mr. Powell, in your writings or speeches in the past, have you taken a position on capital punishment?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. NO, sir. I would say this, the Crime Commission did take a position on it in which I concurred in the recommendations.
Senator Philip Hart (MI)

(D)
Senator HART. I have been trying to find out what that recommendation of the Commission was ever since it came out.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I could find it if I had the volume of the report. I have not looked at it for a long while.
Senator Philip Hart (MI)

(D)
Senator HART. Well, thank you. Mr. Chairman, if that question could be addressed for receipt in writing from Mr. Rehnquist, I would appreciate it. I forgot to ask that question: had he spoken or taken a position on capital punishment. Could we address that question to him?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Why, of course. (The following letter was subsequently received from Mr. Rehnquist:)
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. YOU do not wish any further response from me?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Sir?
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I was asking Senator Hart whether he wished any response from me.
Senator Philip Hart (MI)

(D)
Senator HART. NO. Thank you, Mr. Powell.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. YOU are excused. Thank you, sir.
Lewis F. Powell Jr.
Nominee
(R)
Mr. POWELL. I wish to thank the chairman and the members of the committee for this very generous opportunity to appear before you in what to me, at least, has been a very stimulating discussion. I thought all of the questions were relevant and fair, and it has been a great pleasure and privilege to be here.
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. Thank you, sir. Now, the committee will recess until 10:30 tomorrow morning. We are going to meet in the Judiciary Committee hearing room. We are going to hear the witnesses against the two nominees and also some other witnesses for them.
Senator Hugh Scott (PA)

(R)
Senator SCOTT. IS that room 2300, Mr. Chairman, for the benefit— is that the room number?
Senator James Eastland (MS)
Chairman
(D)
The CHAIRMAN. It is the Judiciary Committee hearing room.
Senator Hugh Scott (PA)

(R)
Senator SCOTT. Room 2228. I just say it for the benefit of those who might wish to be there. (Whereupon, at 4:20 p.m., the committee adjourned to reconvene Tuesday, November 9, 1971, at 10:30 a.m.)