William H. Rehnquist (to be chief)

Speaker, Title, Party Statements
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will come to order. The Honorable Warren E. Burger has announced his resignation as Chief Justice of the United States. Chief Justice Burger has run a long and distinguished service to this country. Our Nation has greatly benefited from his dedicated and capable leadership of the Court. The President has nominated Justice William Hubbs Rehnquist to replace Chief Justice Burger. This afternoon we begin our consideration of the nomination of Justice Rehnquist to be the 16th Chief Justice of the United States. Several years ago during the nomination hearings on Justice Sandra Day O'Connor I outlined the qualities I believe a Supreme Court Justice should possess: Unquestioned integrity—honesty, incorruptibility, fairness; Courage—the strength to render decisions in accordance with the Constitution and the will of the people as expressed in the laws of Congress; A keen knowledge and understanding; Compassion—which recognizes both the rights of the individual and the rights of society in the quest for equal justice under law; Proper judicial temperament—the ability to prevent the pressures of the moment from overcom An understanding of, and appreciation for, the majesty of our system of government—in its separation of powers between the branches of our Federal Government, its division of powers between the Federal and State governments, and the reservation to the States and to the people all powers not delegated to the Federal Government. In his almost 15 years on the Supreme Court, Justice Rehnquist has displayed these qualities. He is widely acknowledged as a formidable scholar and articulate judge. His ability and intellect, his understanding of the role of the judiciary, and his performance as a member of the Supreme Court are exemplary. Today, we begin the historic task of reviewing the nomination of Justice Rehnquist to undertake the duties and responsibilities of Chief Justice of the United States, a position many have called first among equals. When one thinks of the duties of the Chief Justice, his more visible responsibilities with the Supreme Court immediately come to mind. He is the symbol of the Court. He administers the oath of office to the President. He presides over public sessions and Court conferences, and he assigns the writing of Court opinions when he is in the majority. However, the Chief Justice has many other responsibilities. One of his greatest is to head the Federal court system. This alone has become a massive task. Overseeing 692 active judges, 267 senior judges, and almost 3,000 support staff, the Chief Justice also makes hundreds of judicial assignments and generally appoints members of special or temporary courts. Additionally, the Chief Justice handles personnel and securities matters for the Court. In fact, Chief Justice Burger has stated that administrative responsibilities consume one-third of his time. While the responsibilities of the office of Chief Justice are enormous, it has been said that the real eminence of this position comes not from the office itself but from the qualities a person brings to it. Of all the attributes one could bring to this job, perhaps the most critical is that mysterious quality called leadership. In this regard, Justice Rehnquist's record is outstanding. His leadership ability comes not only from a keen intellect and knowledge of the law but is also based on an understanding of the Court and the entire judicial system learned through active participation. Justice Rehnquist has experience with almost every aspect of the American judicial system. He has appeared before the State courts of Arizona, and he has practiced before the Federal courts at the district, circuit, and Supreme Court levels. He has also served as an Assistant Attorney General in the Department of Justice, which is the executive department most closely involved with judicial issues. His keen understanding of the Supreme Court has been nurtured and refined as a law clerk, as an author-commentator of the Court, and as a Justice for 14 Vk years. It is difficult to imagine a background which would result in a more complete understanding and thorough knowledge of the court. Justice Rehnquist, we welcome you, again, to the committee along with your wife Nan and your family, and congratulate you on the honor President Reagan has bestowed upon you. Before calling upon the panel of distinguished Senators and before the introductory remarks of Justice Rehnquist, each member of the committee will be recognized for brief opening remarks. The Chair now recognizes the distinguished ranking minority member, Senator Joseph Biden of Delaware. Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. Welcome, Justice Rehnquist and your family. To state the obvious, this is truly a historic occasion not only for the nominee but for the committee and the Senate as a whole, for we must decide on behalf of the American people who will lead the third and I am emphasize coequal branch of our National Government, not simply for some legislative period or a presidential term but as an appointee for life, almost certainly and hopefully well into the next century. Our decision on this great question may be as important or more important than the selection of the President of the United States of America. The Chief Justice not only serves longer than any President but also with his colleagues on the Court exercises the power limited only by conscience and principle. And that power goes to the very heart and character of our Nation as a republic, and in the end, it's that power that determines whether or not we are a government of laws or a government of men. This is, therefore, perhaps the most awesome responsibility we will face on this committee, and I suspect as Members of the U.S. Senate. It requires all of us to have the most searching inquiry and the utmost candor, not only because it is a responsibility that the Constitution imposes upon us but also because of the consequences our decision will have inevitably, if not altogether predictably, upon our future as a Nation. In our two centuries as a republic, 40 men have served as President of the United States of America, and scores as leaders of the legislative branches, but only 15 have donned the robes of Chief Justice of the U.S. Supreme Court. Only 15 people. The men who have been entrusted with this highest office are among the greatest in our history—John Jay, John Marshall, Roger Taney, William Howard Taft, Charles Evans Hughes, Harlan Fiske Stone, Earl Warren are among those who preceded Warren Burger to the chair of Chief Justice. And we've long been in the habit of recognizing the impact of Chief Justices not only upon our law but upon our whole society. This is evident by the way in which we refer to eras in the Court's history by the names of the Chief Justice. For example, the Marshall Court is often referred to or the Warren Court. An effective Chief Justice is the fulcrum upon which the decisions of the Court largely turn, and there is no doubt that the Supreme Court has been at the crux of the major changes that have swept our society over the past 200 years precisely because we have attempted to conduct a government of laws. And that reflects not only on the nature of our Government but also the nature of the American people. As Alexis De Tocqueville, the keenest of observers of American politics and the American character pointed out 150 years ago, and I quote: "scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question." Our history both before and after De Tocqueville's time has amply confirmed his judgment just as it emphasizes the central role of the Chief Justice of the Supreme Court, the third coequal branch of the Government. The greatest among these Chief Justices, in my opinion, John Marshall, crafted the most powerful defense of a constitutional system of government ever written and firmly establish the key role of the Supreme Court in defending the Constitution in his famous Marbury v. Madison opinion. Marshall's successor, Roger Taney, led a divided Court to the Dred Scott decision, the first link in a chain of events which eventually led to the Civil War. Lincoln's choice for Chief Justice, Salmon Chase, struck down as unconstitutional the very legal tender acts he himself had written as the Secretary of the Treasury, acts that were to have been the centerpiece of the Republican Party's post-Civil War economic program. In our century, Charles Evans Hughes led the Court through a constitutional crisis over Franklin Roosevelt's New Deal culminating in Congress' rejection of the Court-packing plan Roosevelt conceived to save his economic program. Earl Warren's leadership in composing a unanimous Court behind the Brown decision was undoubtedly crucial in winning public acceptance for the desegregation of the public schools in the 1950's. And most recently, Chief Justice Warren Burger wrote the opinion telling the President of the United States who had appointed him that no American, not even the President of the United States, could stand above the law that governs us all. These decisions were not only landmarks in our law; they marked off major watersheds in American history, and it is impossible to deny the lasting impact these men have had and will continue to have upon our society. And just as surely, no one can deny that the standards appropriate to the exercise of the Senate's constitutional responsibility in advising and consenting to the nomination of a Chief Justice not only differ from those we would apply to the nomination of judges of the lower Federal courts but differ significantly even from the standards that would be adequate for the nomination of an Associate Justice of the Court itself. That duty is imposed upon us by article II, section 2, and it was not without constitutional afterthought. Until the last days of the 1787 Constitutional Convention, the power of appointing Federal judges was to be lodged with the U.S. Senate alone. The President was to play no part in the process, and it was finally shared by the President only as part of a complex political compromise in the last 2 days of that convention. Speeches at the convention and commentaries written shortly after the convention make it clear that the Senate's role was always intended to be an active and highly visible one. In fact, just 6 years after the Constitution was ratified, the U.S. Senate rejected George Washington's nomination of John Rutledge, a former Associate Justice to be Chief Justice. Since then, the Senate has rejected more nominees to the Supreme Court than Presidential nominees to any other Federal office. And out of the 18 nominations for Chief Justice considered by the Senate, 4 nominees—Rutledge, George Williams, Caleb Cushing, and Abe Fortas—have failed to win confirmation. Historically, the Senate's inquiry into each of these nominations has been factually rigorous examination of the nominee's life and work. One such investigation linked Ulysses S. Grant's nominee for Chief Justice, Cabel Cushing, to Confederate President Jefferson Davis, and the Senate, therefore, refused to confirm Cushing. Doubts about capability or character have, in the past, resulted in Senate rejection of Supreme Court nominees. Although it is probably somewhat painful and a painful episode in the memory of some sitting members of this committee, Clement Haynsworth and Harold Carswell were rejected just for those reasons. But historically, from the fight over the Rutledge nomination in 1795 which centered on his speeches against the Jay Treaty, through more contemporary struggles over the nominations of Louis Brandeis, John Parker, and Abe Fortas, the Senate has often considered a nominees judicial philosophy and vision of the Constitution. And so we must because unlike other lower court judges, Supreme Court Justices have a significant hand in fashioning the ultimate shape of the law, and they just exercise greater flexibility of judgment in reaching the broader decisions demanded of the Nation's highest court. The Senate's constitutional responsibility in advising and consenting to the nomination of a Chief Justice must be taken as an exercise of a rare and special duty. The leading opponent of the 1930 nomination of Judge John Parker to be Associate Justice, Senator William Borah of Idaho, said of the Senate's role in the confirmation process, and I quote: (The Supreme Court passes) upon what we do. Therefore, it is exceedingly important that we pass upon them before they decide'upon these matters. We declare national policy. They reject it. I feel I am well justified in inquiring of men on their way to the Supreme Court bench something of their views on these questions. Senator Borah, a progressive who loathed the Court's conservative opinions, nevertheless, understood the importance of the Court's independence and integrity. Seven years later it was he who rallied the Senate in opposing Roosevelt's court-packing plan. And his views also deserve our consideration here because they were quoted favorably by Justice Rehnquist in a speech that he made 11 years ago. But we need not go back to the 1930's to see a Senate leader closely scrutinizing the views of a Supreme Court nominee. During the hearings on the last nominee for the Chief Judgeship who was not confirmed, Abe Fortas, our distinguished Judiciary Chairman, Mr. Thurmond said, and I quote: It is my contention that the Supreme Court has assumed such a powerful role as a policymaker that the Senate must necessarily be concerned with the views of perspective Justices or Chief Justices as it relates to broad issues confronting the American people and the role of the Court in dealing with these issues. I believe we owe the country nothing less than we did at that time. These hearings should meet at least the same standard of thoroughness and hard scrutiny that Senator Thurmond expressed in those words 18 years ago. Outside the marble halls of the Supreme Court, the Chief Justice plays an important symbolic role of leadership in this Nation. We must never forget that the Court's place in our system of constitutional government, resting neither on the purse nor the sword, depends solely upon public confidence in its dedication to the faithful application of the rule of law. The Chief Justice must be an effective leader who can, at critical moments in our history, build a consensus among nine independent strong-willed men and women for at such moments in our Nation's history, the American people have needed to hear a clear, common voice emerging from the Court. When the Court has succeeded in meeting that need, it has been the intellect and persuasive power of the Chief Justice that has fashioned these powerful messages from the Court to the country. Furthermore, the Chief must be the one person more than any other who symbolizes the Supreme Court's duty under our Constitution to guarantee "equal justice under the law" for all Americans. Under what circumstances, if any, the next Chief Justice will exercise this implicit and important power, is a question we must ask in these hearings, in my opinion. In approaching this awesome responsibility of advise and consent on the nomination of the head of the third branch of Government, the Chief Justice of the Supreme Court, we should have no preconditions about how the nominee meets these criteria. We should listen with open minds to all of the witnesses we will hear in the days ahead, foremost among them, Chief Justice Rehnquist. And we should understand that we will conduct these hearings in a manner not only out of consideration for Justice Rehnquist; not only out of consideration to the President who nominated him; but even more, much more, out of consideration of the people of the United States and the future of this great Nation. For, as the Framers of the Constitution intended, the burden is upon the nominee and his proponents to make the case for confirmation of Chief Justice. We will be obliged to take into account, and members of this committee will want to satisfy themselves about such issues as: the nominee's role as a Supreme Court clerk, in advising his Justice on equal education; his role in challenging minority voters at the polls in Arizona; and the state of his personal health. Of even greater concern will be the nominee's views of the role of the Chief Justice; his explanation of how the Constitution is intended to end discrimination in our society, and if it is intended to do that; and his vision, generally, of the Constitution, and how it is to be applied to the issues that come before the Court. But most of all, Mr. Chairman, I believe we will need to ask the nominee, and finally ask ourselves, how his views, in Senator Thurmond's words, quote: "Relate to the broad issues confronting the American people," end of quote. And what he believes to be, quote: The role of the Court in dealing with these issues. Mr. Justice Rehnquist, if you are confirmed as Chief Justice of the United States, of the Supreme Court, the significant impact you will have upon the lives of Americans is likely to last long after everyone on this panel is gone from public life. This is a fact that we simply cannot step aside and pretend does not exist. In undertaking this solemn responsibility, we will look to the past for guidance, but in reaching our decision, I believe we must keep our eyes fixed firmly upon the future, which will lie so much in the hands of the person, such as you, if you are confirmed as Chief Justice; a person who will, in fact, be able to act upon and be required to act upon the major social and political issues that we cannot even envision at this moment. It is to that future, and to the coming generations of Americans, that I am convinced, we owe our first and final allegiance. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. We are not going to limit, or attempt to limit any member of this committee on what he has to say. I would say, though, that you do not have to deliver long, scholarly lectures until you feel that you are called on to do it. Now, I observed that the able and distinguished majority leader, Senator Robert Dole of Kansas is here, and our two Senators from Virginia, Senator Warner and Senator Trible, the State in which Chief Justice Rehnquist now resides. And if there is no objection on the part of the committee—I know they want to get back to their duties—I would like to call on Senator Dole, if he cares to make a few remarks at this time. Senator DeConcini, I imagine that since you are from his State, that you will want to make some remarks, too. If you will join them down there. We will now hear from Senator Dole, and then we will call on the other gentlemen. Senator Dole, we would be glad to hear from you.
Senator Bob Dole (KS)
Senator
(R)
Senator DOLE. Mr. Chairman, let me just say, very briefly, that I am here really for two purposes: one, to express my own appreciation for these hearings and for the cooperation we have had from Members on each side in setting a date for the hearing. I think it has worked out very well. Second, I want to add my endorsement to those many other endorsements recommending Justice Rehnquist be our Chief Justice. Because of his illness, I wish to place in the record the statement on behalf of the nominee by our distinguished colleague, the senior Senator from Arizona, Senator Goldwater. I would like for the statement of Senator Goldwater, who is a long-time personal friend of Justice Rehnquist to be included in the record at this point. [Senator Goldwater's prepared statement follows:] PREPARED STATEMENT OF SENATOR BARRY GOLDWATER Mr. Chairman, 15 years ago I had the pleasure of introducing then Assistant Attorney General William Rehnquist as a nominee to succeed Associate Justice Harlan. Today I have the great privilege of endorsing unequivocally the nomination of Associate Justice Rehnquist to serve as Chief Justice of the Supreme Court. Mr. Chairman, the original Magna Carta of 1215 declared the qualifications of a Judge as follows: "We will not make justices . . . except from those who know the law of the land and are willing to keep it." (Chapter 45.) Half a millennium later, James Wilson, one of the original Associate Justices of the Supreme Court and a signer of both the Declaration of Independence and the Constitution, added to this concise standard his instruction that "every prudent and cautious judge will . . . remember, that his duty and his business is, not to make the law, but to interpret and apply it." (Lectures on Law, Part 2.) To these criteria, might add the expectation that a nominee be a person of high integrity and be free of any serious conflict of interest. Mr. Chairman, Justice Rehnquist meets these tests perfectly. He is a man of evident excellence and his outstanding qualities have always been recognized by his colleagues of the bar. As a student, he graduated from Stanford University "with great distinction" and as a member of Phi Beta Kappa. After acquiring a masters in history from Harvard, he graduated first in his class at Stanford Law School, where he served as editor of the Law Review. As a private practitioner in Arizona for 16 years, where I knew the nominee personally, he achieved the highest rating Martindale's Legal Directory can give an attorney. In 1971, he also received the American Bar Association's highest rating of professional competence, judicial temperament and integrity. While serving on the Nation's Highest Court, Justice Rehnquist has written 235 opinions for the court and participated in more than 60,000 cases, including petitions for certiorari. His outstanding record of service on the Bench, and his well reasoned analyses of the law, prove beyond any doubt his fitness for the Office of Chief Justice. To use Alexander Hamilton's words in the Federalist Number 78, the nominee unites in the character of a judge "the requisite integrity with the requisite knowledge of the law." If it is true, as some commentators have written, that Justice Rehnquist's Judicial opinions display a concern for principles of federalism and for the intention of those who drafted and ratified the Constitution, I believe this fact further commends the nominee for service as Chief Justice. Let us remember that the tradition of federalism was born in efforts to limit the overbearing authority of parliament over representative assemblies in Colonial America; and it has survived and remains today as a fundamental check on the concentration in the central government of power dangerous to the liberties of the people. And, as to the second characteristic, I do not believe that any of us could fault a member of the Court for possessing an abiding fidelity to the Constitution. Mr. Chairman, I urge that you and the committee report favorably the nomination of William Rehnquist. Senator DOLE. Also, Mr. Chairman, if I could include my statement in the record. It simply indicates that for those of us who have personally known Justice Rehnquist over the years, we are impressed by his judicial experience, and know of the hundreds of cases he has been involved in and the over 200 majority opinions that he has written. We are here to suggest that the President has done well and to support his nomination.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the prepared statement of the able majority leader will be placed in the record.
Senator Bob Dole (KS)
Senator
(R)
[The prepared statement follows:] Mr. Chairman and members of the committee: It is with the greatest of pleasure that I am here to endorse and support the nomination of William H. Rehnquist to be Chief Justice of the United States. As a former member of this committee I have more than a little appreciation for the staggering responsibility you have in receiving nominations for judicial appointments from the President and processing them expeditiously yet carefully. When I first became a member of the committee in 1979, it became my job, as the newest member, to participate in numerous confirmation hearings. This, of course, was at the beginning of the last two years of the Carter administration, in which more than 150 judges were confirmed. This activity was the result of an omnibus judgeship bill in 1978 which created 153 new judgeships in addition to the usual 30 to 50 annual vacancies due to retirements, resignations or death. Although I never was involved in a Supreme Court nomination, there were all manner of other judicial appointments to consider. One of the nominees that the committee approved at that time, Patricia Wald, just became the new chief judge of the Circuit Court of Appeals for the District of Columbia. I mention this past history, because it seems relevant today. It seems to me that again the committee faces a similar situation. There is a need to act expeditiously yet carefully. Chief Justice Burger has announced his intention to retire from active service on the court so as to be able to devote his full time and attention to the Bicentennial Commission. In little more than a month the court will begin its active preparations for the fall term. Although the court does not formally convene until the first week of October, much work must be done prior to that date so that the court can organize itself and prepare for the cases to be presented. To enter this period without a full court would be to place that institution in grave danger of falling behind in its vital work. For example, almost a thousand petitions for certiorari have accumulated at the Court over the summer months. The Justices must vote on these petitions before the first week in October. There are 24 cases to be reviewed thoroughly before the October argument session. As a former chairman of the Courts subcommittee, I have some appreciation of the leadership role of the Chief Justice as the presiding officer of the Judicial Conference of the United States. This group, which consists of the chief judges of the several circuit courts of appeal and other judicial leaders, is the policy making body for the Federal court system. Its fall meeting is scheduled for late September. A lame duck Chief Justice would understandably be hesitant to exercise his or her authority to do anything with a lasting effect, yet decisions have to be made. Mr. Chairman, I recall Justice O'Connor's initiation to the Court. It was made immensely more difficult by the fact that she was not confirmed until a few days before the Court's first conference. The members of the Court did not want to vote on petitions without her participation. She was then faced with hundreds of petitions aided only by memoranda prepared by other Justices' law clerks. It is simply not possible to be a fully participating member of the court under those circumstances. Judge Scalia, if confirmed substantially after the August recess, would be at a major disadvantage, as would the rest of the Court waiting to see what would happen. This is not to suggest that the committee should short-circuit its deliberate process. However, I suggest that the committee should make haste—carefully. Since the President announced his intention to nominate Justice Rehnquist to become Chief Justice and Antonin Scalia to be Associate Justice, millions of words have been written tracing in great detail the public and private lives of these two men. Of course, the committee itself has full hearing records since both have previously been subject to the confirmation process. In addition, both have produced volumes of writtern opinions. Justice Rehnquist has authorized more than 200 opinions in his decade and a half of the High Court. Then, too, the committee has been made aware of the FBI background reports and the various financial and ethics in government disclosures that have been made. As I read the record and as I review the public life of William Rehnquist, I am persuaded the President has made an excellent choice to succeed Warren Burger as Chief Justice. He has the experience, temperament, wisdom and ability to be one of 10 the great jurists of this Nation. It is not my place to restate or add to that which is already before the committee. I simply want to endorse this nominee in the strongest possible terms. Mr. Chairman, I also ask unanimous consent that the statement of the distinguished senior Senator from Arizona, Mr. Goldwater, be placed in the record at this point. Senator Goldwater is unable to be here today. I know that Barry has always felt very proud of Mr. Justice Rehnquist and helped him get his start in Arizona politics many years ago. If he could have possibly been here today, he would have been.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I now call on the other Senator from Arizona, Senator DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, and my distinguished colleages on the Judiciary Committee, let me assure you that this will suffice for my opening statement and it is not a long one, so you can applaud if you want to, or you can go to sleep, as the case may be. I am honored to be here, to introduce to this committee, for those of you who may not know, the Honorable William Rehnquist. He is the President's nomination, as you know, to be Chief Justice, as a matter of fact, the 16th. Justice Rehnquist appeared before this committee, as the record shows, some 15 years ago. He was confirmed by the U.S. Senate as an Associate Justice. For that reason, I would like only to briefly outline Justice Rehnquist's career as his credentials and achievements are already quite well known to anyone on this committee, but I feel it important, at this beginning point, that they be reiterated. After growing up and attending high school in Milwaukee, WI, William Rehnquist enlisted in the U.S. Army and served in the Air Corps as a weather observer from 1943 to 1946. After an honorable discharge, he attended and graduated with distinction from Stanford University. During college he was elected to membership in Phi Beta Kappa. He received a master's of arts degree in Political Science from Harvard University in 1950. Justice Rehnquist finished first in his class at Stanford Law School in 1952. After graduating from law school he served as a law clerk for Justice Robert H. Jackson on the Supreme Court of the United States until June 1953. From 1953 until 1969, Justice Rehnquist worked at a variety of firms in Phoenix, AZ, in private practice. In 1969 he was confirmed by the Senate as Assistant Attorney General in charge of the Office of Legal Counsel at the Department of Justice. In 1971, at the age of 47, Justice Rehnquist's appointment to the Supreme Court of the United States was confirmed by the U.S. Senate. Justice Rehnquist has established a reputation in the last 15 years as an energetic, efficient, hard-working member of the Court. He is widely acknowledged as a writer of exceptional ability. He is well organized, and with polished opinions, with forcefulness of logic and expression, long on collegiality, and organization, are a requirement, Justice Rehnquist has it. I believe an immense talent that he will bring to the Court will serve him well in the administration of the Federal court system. 11 I know he welcomes the opportunity to direct his talents and energy to the duties of the Chief Justice. Mr. Chairman, I am very pleased with the statement issued by the ranking member, our friend and colleague, Joe Biden, to address this hearing with an open mind, with a feeling that, certainly, there is a burden to prove qualifications, but, to look at it without a predisposed judgment as to this nominee. Indeed, these are prerogatives that we all face, and a great responsibility, but I firmly believe that this man has proven, by his expert conduct on the Court as an Associate Justice, that he can fill the position that he has been nominated to. Thank you, Mr. Chairman. Also, I wish to place a letter in the record. [Letter follows:] PHOENIX, AZ, July 29, 1986. DEAR DENNIS: Thank you for your nice letter. I notice in this morning's paper they have the FBI investigating Bill Rehnquist's poll watching activities in the early 1960's, and several very unfair statements have been made by various individuals. Could I ask you to read my letter to the Judiciary Committee. As you know I am a Democrat but my politics has never influenced me as a newspaperman and for many years I covered politics for The Arizona Republic. Historically—from the late 30's when I started covering politics, until the 60's when party strength in Arizona became equalized—there were many rumors and accusations of improper voting in South Phoenix. These rumors included such things as voting dead people, voting people who had moved, wholesale registering and voting of illiterates, etc. Starting in the 1950's, the Republicans started poll-watching and challenging in that area. It was particularly active when Dick Kleindienst was state chairman and I think that is when Bill was active in the party. I remember the GOP was very active with teams of poll watchers and as a result a good many irregularities were uncovered and corrected. I do not agree with Bill on some things but I must say this, and add that he always was a fine gentleman and I don't think he would unnecessarily harrass any individual. At that time you had to be able to read the Constitution to qualify to vote and I am sure some who could not read probably felt intimidated if they had been registered. Sincerely, BEN AVERY.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you very much, Senator DeConcini. The distinguished and able Senator from Virginia. Senator Warner.
Senator John Warner (VA)
Senator
(R)
Senator WARNER. Thank you, Mr. Chairman, and members of the committee. I shall follow the lead of the majority leader and submit my statement for the record, but I would like to add that we, in Virginia, are privileged to have him as a resident. I was honored to have my friend, of many years, ask that I appear on his behalf today, and I think I can best summarize my view, and that I think of the majority of Virginians, by saying that his judicial philosophy is predicated on courage, and it has as its foundation the Constitution of the United States. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the statement by the distinguished Senator from Virginia will be placed in the record.
Senator John Warner (VA)
Senator
(R)
[The prepared statement follows:] Mr. Chairman, I am both pleased and honored to introduce Associate Justice William Hubbs Rehnquist to the Judiciary Committee for the position of Chief Justice of the United States. William H. Rehnquist was originally confirmed as an Associate Justice in 1971. During his tenure as an Associate Justice, he has displayed a brilliant intellect and is respected by his colleagues as one of the brightest judicial minds on the Court. Since graduating first in his class from Stanford University Law School, he has consistently maintained the highest standards of professionalism, and since 1971, has proved to be a jurist eminently qualified for our highest court. Justice Rehnquist's unique combination of qualifications does not stop with his legal acumen or his dedication to the Constitution. He is also known for his energetic approach to his duties, and his congenial spirit. A Chief Justice possessing such well balanced and admirable qualities will certainly make a strong, effective and respected leader. President Reagan described Justice Rehnquist as "sensitive to the role of courts, attentive to rights specifically guaranteed in the Constitution, and a jurist of highest competence." Justice Rehnquist's judicial philosophy begins with courage. He has faced the most difficult issues before the Court with determination, placing his confidence and trust in the Constitution, and never being afraid to defend even the most unpopular position. It is my hope that the Senate will strongly endorse President Reagan's nominee for Chief Justice of the United States.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will now hear from the able and distinguished junior Senator from Virginia. Senator Trible.
Senator Paul Trible (VA)
Senator
(R)
Senator TRIBLE. Mr. Chairman, I thank you for this opportunity to join my distinguished colleagues on this historic occasion, and I am honored to be asked to join him in presenting to this committee, Justice Rehnquist. Let me add very briefly to what has been said. Justice Rehnquist, in my judgment, is an extraordinarily qualified choice for Chief Justice. He is a man of formidable intellect who has consistently demonstrated analytical rigor and wide-ranging scholarship. During his tenure on the Court, Justice Rehnquist has been an articulate and persuasive advocate of traditional constitutional interpretation of federalism, individual liberty, and respect for the law. I enthusiastically support his confirmation and I urge this committee to act promptly, and positively, and I thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. SO, I believe the record shows that the Chief Justice is endorsed by both Senators from Arizona, his original home State—Senator Goldwater and Senator DeConcini—and by both Senators from his resident State at present—from Virginia, Senator Warner and Senator Trible. You gentlemen are now excused, if you wish to leave. We will now return to the committee members, and the first, now, will be Senator Mathias of Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. One of the great strengths of the Supreme Court is, of course, its stability. History does not assess the record of the Court in 2-year, or 4-year, or 6- year terms, but it studies it as a generation, or, even as an era. Today, for the first time in 17 years, we stand on the threshold of a new era in the history of the Supreme Court. The Judiciary Com- 13 mittee has before it today, the man whom the President has nominated. It is interesting to reflect: The man whom the President has nominated as the first Chief Justice for the Nation's third century. The man who, in all likelihood, will be the first Chief Justice of the 21st century. And so I want to first congratulate Justice Rehnquist. The President has nominated him for a post that has been filled by only 15 other Americans in the whole history of the Republic. I think in all candor, I should add to my congratulations my hopes for good luck, because the scrutiny that this nomination receives will, and certainly should be very thorough, very exacting, and perhaps, at moments, painful. Few nominees have come before the committee with views that are as well known as those of Justice Rehnquist. His philosophy is generally known because his views are a matter of public record. They are spread on pages of dozens of volumes of U.S. reports. It is the committee's duty to examine that record very carefully. But I would say, Mr. Chairman, to our colleagues on this committee, I think we ought to do it with some sensitivity to the principle of judicial independence. Our review of the nominee's judicial opinions will be watched very carefully by other Federal judges. I think these men and women must remain confident that they will not be called upon to account, at some future date, to the political branches of government for decisions that they have rendered in court, even though they do hope for greater opportunities for service in the judicial branch. Since the nominee already serves as an Associate Justice of the Supreme Court, I would think that we should focus a part of our review on the specific responsibilities of a Chief Justice, responsibilities as the head of the judicial branch of government, as well as his position as the first among equals on the Bench of the Supreme Court. Now, as to the former, the nominee, of course, has very big shoes to fill. If confirmed, he will succeed a Chief Justice who has devoted an extraordinary degree of attention to his institutional responsibilities. Chief Justice Burger has spoken very forcefully for the Federal Bench, and, to a great degree, for the legal profession as a whole. He has spoken on a wide range of topics of importance to the administration of justice, and I think we will be particularly interested in Justice Rehnquist's plans for building on this foundation. The committee, I believe, should also explore the difficulties that the nominee may confront as the leader of a court that shows some signs of being increasingly polarized. His ability to nurture consensus on the most pressing constitutional issues before the Court may well be his most compelling task, and his success in this endeavor wiH determine whether the Court can effectively serve as the arbiter of constitutional controversies. The American people have reposed no more significant trust in the Senate than the duty to pass upon the President's choices of the men and women who will serve on the U.S. courts. In this instance, of course, the duty is even greater. The issue before us is whether this nominee has the qualities of vision and 14 leadership that the Nation expects of its Chief Justice, and that will be particularly essential in the Chief Justice, whose duty it will be, to lead the judicial branch of government into the third century of the Republic. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The distinguished Senator from Massachusetts. Mr. Kennedy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. The confirmation of a Chief Justice of the United States is a more important responsibility for the Senate than our action on any other nomination to any other Federal office. And the vote we cast on the Rehnquist nomination may be the most significant vote any of us cast in this Congress. It may also be the most important civil rights vote that any of us ever cast. The Framers of the Constitution envisioned a major role for the Senate in the appointment of judges, it is an historical nonsense to suggest that all the Senate has to do is check the nominee's IQ, make sure he has a law degree and no arrests and rubber stamp the President's choice. The Virginia plan, the original blueprint for the Constitution gave the legislature sole authority for the appointments of members of the judiciary. James Madison favored the selection of judges by the Senate. The provision ultimately adopted in the Constitution was a compromise described by Gouverner Morris as giving the Senate the power to appoint judges nominated to them by the President. The original intent is clear—the Senate has its own responsibility to scrutinize judicial nominees with special care, and the highest scrutiny of all should be given to the person nominated to be Chief Justice. It is no accident that the Constitution speaks not of the Chief Justice of the Supreme Court, but the Chief Justice of the United States. As the language of the Constitution itself emphasizes, the Chief Justice is more than just the leader of the Court. He symbolizes the rule of law in our society; he speaks for the aspirations and beliefs of America as a Nation. In this sense, the Chief Justice is the ultimate trustee of American liberty; when Congresses and Presidents go wrong under the Constitution, it is the responsibility of the Supreme Court to set them right. As first among equals among members of the Court, the Chief Justice is chiefly responsible for ensuring that the Court faithfully meets this awesome responsibility. Presidents and Congresses come and go, but Chief Justices are for life. In the 200 years of our history, there have been only 15 Chief Justices. The best of them, the greatest of them, have been those who applied the fundamental values of the Constitution fairly and generously to the changing spirit of their times. With his famous dictum, "We must never forget that it is a constitution we are expounding," John Marshall shaped the Court in the early years, and laid the groundwork for America to become a 15 nation. Roger Taney failed the test and helped put the country on the path to Civil War. Charles Evans Hughes helped guide the country safely through its severest domestic test of modern times, the upheaval of the Great Depression. Earl Warren understood the central role of the individual and helped guarantee that the civil rights revolution would pursue a peaceful path. Two hundred years of history have made the Chief Justice more than the Chief Enforcer of the law, Chief Defender of the President, Chief Advocate for transient majorities in Congress, State legislatures, and city councils. Equal justice under law also counts for something, and so does the Bill of Rights. Measured by these standards, Justice Rehnquist does not measure up. As a member of the Court, he has a virtually unblemished record of opposition to individual rights in cases involving minorities, women, children, and the poor. His views are so far outside the mainstream, even of the Burger Court, that in 54 cases decided on the merits, Justice Rehnquist could not attract a single other Justice to his extremist views. Again and again, on vital issues, such as racial desegregation, equal rights for women, separation of church and State, he stood alone in 8-to-l decisions, with all the other Justices on the other side. U.S. Law Week's review of the past five terms of the Supreme Court indicates that Justice Rehnquist voted against the individual 77 percent of the time in cases involving individual rights. If unanimous decisions are excluded, where no plausible argument could be made against the individual, Justice Rehnquest voted against the individual's claim 90 percent of the time. Another revealing statistic involves Justice Rehnquist's dissents from action on the Court rejecting review of lower courts' decisions. He has written or jointed opinions dissenting from the denial of certiorari in over 70 cases, most of which involved individual rights or issues of criminal law. With rare exceptions, the government had lost below, and Justice Rehnquist argued that the Supreme Court should hear the case. Mainstream or too extreme? That is the question. By his own record of massive isolated dissent, Justice Rehnquist answers that question. He is too extreme on race, too extreme on women's rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be Chief Justice. His appalling record on race is sufficient by itself to deny his confirmation. When he came to the Supreme Court, he had already offered a controversial memoranda in 1952 supporting school segregation; he had opposed public accommodation legislation in 1964; he had opposed remedies to end school segregation in 1967; he had led the so-called ballot security program in the sixties that was a euphemism for intimidation of black and hispanic voters. On many of these issues, it now appears that Mr. Rehnquist was less than candid with the committee at his confirmation hearing in 1971. As a member of the Supreme Court, Justice Rehnquist has been quick to seize on the slightest pretext to justify the denial of claims for racial justice. His dissent in the Bob Jones University case supported tax credits for segregated schools. In Batson v. Kentucky, his dissent supported the rights of a prosecutor to prevent blacks and 16 minorities from serving on a jury. In the Keyes case, his dissent supported the view that segregation in one part of a school district does not justify a presumption of segregation throughout the district. America can be thankful that in the difficult and turbulent years since World War II, we have had a Supreme Court that has been right on race, right on equal rights for women, right on apportionment, and the separation of power, right on free speech, and right on separation of church and state. Imagine what America would be like if Mr. Rehnquist had been the Chief Justice and his cramped and narrow view of the Constitution had prevailed in the critical years since World War II. The schools of America would still be segregated. Millions of citizens would be denied the right to vote under scandalous malapportionment laws. Women would be condemned to second class status as second class Americans. Courthouses would be closed to individual challenges against police brutality and executive abuse—closed even to the press. Government would embrace religion, and the walls of separation between church and state would be in ruins. State and local majorities would tell us what we can read, how to lead our private lives, whether to bear children, how to bring them up, what kind of people we may become. In these ways and in so many others, a Court remade in the image of Justice Rehnquist would make the Constitution, whose bicentennial we celebrate next year, a lesser document in a lesser land. It would no longer be the bold charter of freedom, equality and justice that has made America great, but a structure for government decree and bureaucratic efficiency, a structure so suffocating to liberty that the Nation's founders—the patriots who fought a revolution to secure their freedom—would not recognize the reactionary revolution we had wrought. That is not a vision of America I can support, nor is it a vision that the vast majority of our people would support. Justice Rehnquist is outside the mainstream of American constitutional law and American values, and he does not deserve to be Chief Justice of the United States. To paraphrase John Marshall, we must never forget that it is a Chief Justice we are confirming.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I thank the Chairman. I would like to join with the Chairman and the other members of the committee in welcoming Justice Rehnquist on the occasion of his confirmation proceeding. When he joined the Court in 1971, Justice Rehnquist brought to the bench a brilliance of intellect, an independence of thought, and a soundness of judgment that superbly qualifies him, in my opinion, to be the next Chief Justice of the United States. 17 Any questions regarding his competence, his temperament, and judicial outlook have certainly been answered in his 15 years on the Court. I believe that he is an excellent choice for the highest judicial position in our Nation. The occasion of these hearings, as my colleagues have indicated, is an important one. The constitutional role of the Senate in the confirmation process is that of an independent assessor of judicial candidates. This is the time and the place for the important questions about the nominee to be asked and answered. The hearings present the Senate and the American people with the best opportunity to assure ourselves of the fitness of this man for this appointment. The hearings should be thorough, and the hearings should be fair. I am personally confident that they will confirm my belief that the President chose the very best candidate to be Chief Justice. Justice Rehnquist, I welcome you to these hearings, and I wish you well. I thank the Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Ohio, Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. I want to join my colleagues in welcoming Justice Rehnquist to this hearing, and opportunity to discuss some of the issues concerning the confirmation process with the Justice directly. I'm grateful to him for taking the time to meet with me for that purpose. In exercising our advice and consent role, the Senate has three distinct obligations. We must evaluate the nominee's competence; we must assess his or her integrity; we must determine whether the nominee will be faithful to the law and the fundamental values upon which our constitutional system is based. I am not concerned about whether Justice Rehnquist is a political conservative. Political philosophy should not be a determinant in our evaluation. My principal concern is whether confirming this nominee as Chief Justice could affect the basic constitutional protections that Americans have enjoyed: the right to a fair trial; protection from discrimination; the right to privacy; the right to practice religion free of government interference. That is what this hearing is about—not one man, not a President's choice, but the day-to-day rights and privileges of every person in this country. Frankly, there is cause for concern. Some of the positions Justice Rehnquist has taken, both before and after he went on the bench, suggest that he holds views so extreme that they are outside the mainstream of American thought and jurisprudence. In examining the record, we find that Justice Rehnquist has been the sole dissenter 54 times, more than any other sitting Justice, and to the best of my knowledge, more than any other Justice in history. 18 Justice Rehnquist has interpreted the first amendment doctrine of separation of church and state to mean that a State can become actively involved promoting religion. He has interpreted the Equal Protection Clause to give only the most limited protection to women, aliens who are legal residents, and indigents. He has interpreted the 14th amendment ban on discrimination to mean that prosecutors can intentionally keep citizens off juries just because they are black. We also find a clear pattern in these decisions. If the issue involves individual civil liberties, the individual is likely to lose. If the issue involves a criminal defendant's rights, the defendant's claim is likely to be denied. But if the issue is whether big government is going to get its way, the result is likely to be that it will. I find this last point particularly ironic, since conservatives profess to be in favor of limiting government control over our lives. Supporters of this nomination will say that we should not consider political philosophy. I agree. But constitutional extremism is different from a conservative or liberal political philosophy. Some would argue that there is room on the Court for extremists, whether on the right, or on the left. But it is not necessary to resolve that dispute here. The question before us is whether this nominee, if he is an extremist, should be Chief Justice. The Chief Justice assigns the writing of opinions to individual Justices. He presides at the opinion conferences. He is the Chairman of the Judicial Conference of the United States. He has overall responsibility for the administration of the judicial branch. We must also consider the role of the Chief Justice in achieving consensus on the most wrenching and difficult legal issues that divide our Nation. Could a Chief Justice Rehnquist have brought about a unanimous court in the Brown v. Board of Education case? Could he have achieved consensus in a case similar to the one which involved access to President Nixon's tapes? The Senate must take these questions into account. As my colleagues have already pointed out, the record of the Constitutional Convention shows clearly that the Framers intended that the Senate play an important role in advising on and consenting to Supreme Court nominations. I cannot accept the view that the Senate must passively approve a nominee merely because he or she is honest and legally competent, particularly for the position of Chief Justice if the effect will be to revise fundamentally our constitutional principles. There is no doubt that the President should have wide discretion to pick nominees. He won that right a year ago last November. But there was no electoral mandate to repeal basic constitutional values; there was no great cry throughout the land to cut back on the Bill of Rights. Mr. Chairman, my concern about this nomination goes beyond particular legal interpretation. We must also consider the effect of this nomination on the Court itself. The Supreme Court is perhaps the most respected institution in our country. It is perceived to be above the fray, the place where competing legal views are weighed objectively and thoughtfully. 19 That perception may be somewhat idealistic, but the perception is probably as important as the reality. We must avoid a Supreme Court which lurches toward the extreme, whether that extreme be on the right or on the left. We must avoid a Court which is too quick to toss aside long-established precedent. We must avoid a Court which appears to decide the most important legal issues of the day on the basis of personal ideology, rather than a fairminded reading of the law. And finally, serious questions have been raised about whether Justice Rehnquist was involved in challenging or harassing voters during the 1960's, and whether he was straightforward in explaining these activities to the Senate in 1971. For this reason, Senator Simon and I asked the FBI to conduct a thorough investigation. We also requested that appropriate witnesses, 12 in number, testify before the committee. We expect that they will appear. We must resolve these factual issues fairly and completely. Mr. Chairman, these concerns require that we give the most careful and thorough consideration to the evidence that will be presented regarding this nomination. Our highest obligation is neither to a single nominee, nor to the President. It is to the Court itself, and more particularly to the American people. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Utah, Mr. Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman, thank you so much. I ask unanimous consent that my full statement be placed in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, that will be done.
Senator Orrin Hatch (UT)
Senator
(R)
[The prepared statement follows:] 20 THANK YOU, MR. CHAIRMAN. ON DECEMBER 10, 1971, MR. WILLIAM H'JBBS REHNQUIST WAS CONFIRMED AS THE 100TH JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, THE MOST POWERFUL JUDICIAL BODY IN THE WORLD. THIS WAS A VERY SIGNIFICANT OCCASION. IT WOULD BE DIFFICULT INDEED TO MENTION AN ASPECT OF AMERICAN LIFE THAT HAS MOT BEEN SHAPED BY THE NINE LEGAL SCULPTORS OF THE SUPREME COURT. JUST SINCE 1971, A PRESIDENT HAS RESIGNED, THE WORLD'S LARGEST TELECOMMUNICATIONS COMPANY HAS DISINTEGRATED, RULES FOR CRIMINAL TRIALS HAVE CHANGED, EVEN A TOWN'S ABILITY TO DISPLAY A CRECHE HAS BEEN ESTABLISHED — ALL BECAUSE JUSTICE REHNQUIST AND EIGHT OTHER INDIVIDUALS HAVE FOUND ENDURING PRINCIPLES IN A WEATHERED PIECE OF PARCHMENT. IN FACT, WHEREVER THE LAWS OF THIS NATION AND ITS STATES REACH, WE CAN PERCEIVE THE HANDPRINTS OF THE HIGHEST COURT. AS THE NATION'S THIRD CHIEF JUSTICE DECLARED IN MARBURY V. MADISON, "OURS IS A GOVERNMENT OF LAWS, AND NOT OF MEN." THIS IS THE GENIUS OF THE CONSTITUTION — THAT AMERICANS DO 21 NOT OWE THEIR HIGHEST LEGAL ALLEGIANCE TO ANY PERSON, NO MATTER HOW TRUSTED AND TRUSTWORTHY, RUT TO THE CONCEPT OF LIBERTY EMBODIED IN LAW- CHIEF JUSTICE JOHN MARSHALL, IN THAT SAME PIVOTAL CASE, EMPHASIZED THE VITAL MISSION OF THE JUDICIARY WITHIN THIS INSPIRED CONSTITUTIONAL SCHEME WITH THE WORDS: "IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS." IN OTHER WORDS, THE CONFIRMATION OF JUSTICE REHNQUIST WAS ONE OF THE MOST IMPORTANT GOVERNMENTAL ACTIONS OF THAT ERA- HE WAS APPOINTED A "KEEPER OF THE COVENANT," A PROTECTOR OF THE AGREEMENT BETWEEN THE GOVERNMENT AND THE GOVERNEDJUSTICE REHNQUIST WAS REMARKABLY PREPARED AND QUALIFIED FOR THAT MISSION IN 1971- HE HAD RECEIVED A M-A- FROM HARVARD, SCORED A 99-6 OUT OF 100 ON THE LAW SCHOOL APTITUDE TEST, AND GRADUATED FIRST IN HIS 1952 LAW SCHOOL CLASS. A CLASSMATE, SANDRA DAY, NOW ASSOCIATE JUSTICE O'CONNOR, RECALLS THAT WILLIAM REHNQUIST WAS "HEAD AND SHOULDERS ABOVE ALL THE REST OF US IN TERMS OF SHEER TALENT AND ABILITY." MOREOVER HE WON A COVETED SUPREME COURT CLERKSHIP AND SERVED AS AN ASSISTANT ATTORNEY GENERAL BEFORE ASCENDING TO THE BENCH. SINCE THAT TIME, JUSTICE REHNQUIST HAS PROVEN A MATCH FOR THE AWESOME TRUST PLACED IN HIM BY THE PRESIDENCY, THE SENATE, AND THE PEOPLE OF THE UNITED STATES- A 1985 NEW YORK TIMES ARTICLE STATES THAT "REHNQUIST STANDS OUT" FROM 22 AMONGST HIS COLLEAGUES ON THE COURT. ESTEEMED UNlVtKSUY Uh VIRGINIA LAW PROFESSOR, A. E. "DICK" HOWARD, COMMENTED WELL OVER A YEAR AGO THAT "/JUSTICE REHNQUIST/ HAS A CLAIM TO THE LEADERSHIP ROLE ON THE COURT." PROFESSOR HOWARD ALSO NOTED IN A RECENT ABA JOURNAL THAT "PERHAPS NO JUSTICE AT THE COURT GENERATES MORE GENUINE WARMTH AND REGARD MONG BOTH HIS COLLEAGUES AND OTHERS WHO WORK AT THE COURT." THIS ASSERTION IS CONFIRMED BY JUSTICE WILLIAM BRENNAN WHO, IN RESPONSE TO A PRESS INQUIRY, STATED THAT JUSTICE REHNQUIST WOULD MAKE A "SPLENDID CHIEF JUSTICE-" PRESIDENT REAGAN IS TO BE COMMENDED FOR RECOGNIZING THESE MARVELOUS QUALITIES IN JUSTICE REHNQUIST AND APPOINTING HIM TO BECOME THE 16TH CHIEF JUSTICE OF THE UNITED STATES. PERHAPS NO OTHER INDIVIDUAL TODAY WOULD GRACE MORE THE ERMINE WORN BY CHIEF JUSTICES JOHN MARSHALL, SALMON CHASE, WILLIAM H. TAFT, AND WARREN BURGER THAN JUSTICE WILLIAM H- REHNQUIST. IF I MAY, MR. CHAIRMAN, I WOULD LIKE TO COMMENT JUST BRIEFLY ON THESE CONFIRMATION PROCEEDINGS- AS WE ALL KNOW, THE CONSTITUTION CONTAINS NO EXPLICIT STANDARD FOR NOMINATION PROCEEDINGS. ARTICLE III DEFINING THE ROLE OF THE JUDICIARY AND ARTICLE VI REQUIRING JUDGES TO TAKE AN OATH TO UPHOLD THE CONSTITUTION SUGGEST A STANDARD APPLICABLE TO THE PROPER ROLE OF THE COURT AND THE ABILITY OF CANDIDATES TO FULFILL THE OBLIGATIONS OF SERVING ON OUR 23 NATION'S HIGHEST TRIBUNAL. THESE PROVISIONS NOTE THAT A JUDGE'S DUTY IS TO DECIDE CASES AND CONTROVERSIES IN ACCORD WITH THE CONSTITUTION AND LAWS OF THE UNITED STATES- SINCE JUDGES ARE OBLIGATED TO FIND, AND NOT MAKE, THE LAW, THEIR PERSONAL VIEWS ON THE POLITICAL OR SOCIOLOGICAL MERITS OF AN ISSUE HAVE LITTLE RELEVANCE TO INQUIRIES ABOUT JUDICIAL OUALIFICATIOMS. MOREOVER SINCE JUDICIAL CANDIDATES, AND PARTICULARLY SITTING JUDGES, OWE THE NATION A DUTY TO AVOID PREJUDGING ISSUES, IT IS INAPPROPRIATE FOR THEM TO PRESUME TO GUESS IN THE ABSTRACT HOW THEY MIGHT DECIDE A SPECIFIC ISSUE IN ITS FACTUAL CONTEXT. IN SHORT, MR. CHAIRMAN, THE OFFICE HE NOW HOLDS AND THE OFFICE TO WHICH HE MAY ASCEND REQUIRE JUSTICE REHMOUIST TO REFRAIN FROM SPECIFIC ANSWERS TO SOME QUESTIONS. I MENTION THAT TO ASSURE MY COLLEAGUES AND OTHER WITNESSES THAT JUDICIAL DUTY, NOT ANY DESIRE TO EVADE, MAY PROMPT THE JUSTICE TO AVOID RESPONDING TO SOME INAPPROPRIATE INQUIRIES. FRANKLY, IF THIS COMMITTEE OR ANY CITIZEN WANTS TO KNOW HOW JUSTICE REHNOUIST DECIDES QUESTIONS, HIS LEGAL OPINIONS ARE AVAILABLE FOR ALL TO SEE IN 70-ODD VOLUMES OF THE UNITED STATES REPORTSONE FURTHER POINT, MR. CHAIRMAN, WE ARE ALL AWARE THAT MANY QUESTIONS HAVE BEEN RAISED ABOUT THIS NOMINATION WHICH DATE BACK SEVERAL DECADES- NOT ONLY DO MANY OF THESE ALLEGED CONCERNS PREDATE JUSTICE REHNQUIST'S 1971 24 CONFIRMATION, MANY RELATE TO HIS CLERKSHIP IN 1952- JUST TO PUT THESE EVENTS IN THEIR PROPER PERSPECTIVE, I THINK IT IS IMPORTANT TO NOTE THAT AT THAT TIME THE HOOLA HOOP WAS STILL A DECADE FROM ITS HEYDAY- "BONANZA" AMD THE "MOUSEKETEER CLUB" WOULD NOT APPEAR FOR MANY YEARS- IN FACT, TV WAS STILL A LUXURY FOR MOST AMERICAN HOMES- CARMAKERS WERE NOT DESIGNING MINI-VANS, BUT CONVERTIBLES WITH ENORMOUS TAILFINS. FINALLY AND MOST SHOCKING OF ALL, STROM THURMOND WAS STILL A MISGUIDED DEMOCRAT AND HAD NOT YET EMBARKED ON HIS SENATE CAREER. IMAGINE A SENATE WITHOUT STROM THURMOND AND YOU CAN IMAGINE THE RELEVANCE OF THESE ACCOUNTSI HOPE YOU WILL PARDON ME FOR LOWERING THE TENOR OF THIS ESTEEMED PROCEEDING FOR A MOMENT- I WOULD, HOWEVER, LIKE TO CONCLUDE ON A HIGHER NOTE- THE IMPORTANCE OF THIS PROCEEDING IS ILLUSTRATED BY THE OBSERVATION OF ALEXIS DE TOCOUEVILLE THAT "SCARCELY ANY POLITICAL QUESTION ARISES IN THE UNITED STATES THAT IS NOT RESOLVED, SOONER OR LATER, INTO A JUDICIAL QUESTION." I WOULD ONLY ADD THAT IN THIS ERA WHEN MANY SUPREME COURT PRONOUNCEMENTS ARE DEBATED IN CONGRESS THAT SCARCELY ANY LEGAL QUESTION ARISES THAT IS NOT SOON A POLITICAL QUESTION. THE LEGAL HISTORY OF THIS NATION, THE DAILY LIVES OF ITS CITIZENS, AND THE FUTURE AGENDA OF BOTH CONGRESS AND THE COURT MAY WELL BE SHAPED BY TODAY'S EVENTS. 25 THE SUPREME COURT WILL INEVITABLY BE ENSNARLED IN THE GREAT QUESTIONS OF OUR GENERATION. INDEED JUSTICE HOLMES NOTED THAT THE ONLY PEACE FOUND AT THE COURT IS THE UNEASY STILLNESS FOUND AT THE EYE OF A HURRICANE. I AM GRATEFUL THAT PRESIDENT REAGAN HAS CHOSEN AN INDIVIDUAL OF THE QUALITY OF JUSTICE REHNQUIST TO GUIDE THE COURT THROUGH COMING STORMS. 26 STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator HATCH. I would like to make just a few comments before I finish. I might say that I think Justice Rehnquist has a remarkable record, and a remarkable reputation, a tremendous wit, brain and ability to bring about consensus, and of course, so many other things that even his more liberal colleagues have agreed to. He has proven a match for the awesome task placed on him by the President, and, I believe, the Senate and the people of the United States of America. In 1985, a New York Times article said that Rehnquist stands out among his colleagues on the Court. Esteemed University of Virginia Law Prof. A.E. Dick Howard, one of the true constitutional experts in this country, commented well over 1 year ago that Justice Rehnquist has a claim to the leadership role on the Court. Professor Howard also noted in a recent ABA Journal that perhaps no Justice of the Court generates more genuine warmth and regard among his colleagues and others who work at the Court. This assertion is confirmed by Justice William Brennan, who in response to a press inquiry stated that Justice Rehnquist would make a, quote, splendid Chief Justice, unquote. I would say a particularly fine remark coming from someone with whom Justice Rehnquist has differed so much in the past. If I may, Mr. Chairman, I'd like to comment just briefly on these confirmation proceedings. As we all know, the Constitution contains no explicit standard for nomination proceedings. Article III, defining the role of the Judiciary, and article IV, requiring judges to take an oath to uphold the Constitution, suggests a standard applicable to the proper role of the Court and the ability of candidates to fulfill the obligations of serving on our Nation's highest tribunal. These provisions note that a judge's duty is to decide cases and controversies in accordance with the Constitution and laws of the United States. Since judges are obligated to find and not make law, their personal views on the political or sociological merits of an issue have little relevance to the inquiries about judicial qualifications. In that regard, I have been interested in some of the comments by some of my colleagues regarding Mr. Justice Rehnquist's dissenting role. I might add that in his 14-year tenure he has dissented 54 times. Now, his voting record over the years has been matched in its consistency only by Justices Thurgood Marshall and William J. Brennan, Jr. I might add that Justice Rehnquist is not the greatest sole dissenter on the current Court. During the period in which they have overlapped, Justice Stevens has had 51 sole merit dissents for the last 10 years, and he has dissented alone far more times than Mr. Justice Rehnquist, who had 40 such dissents over the same period. Justices Marshall and Brennan have been in dissent by themselves hundreds of times during their tenure. I think that stands them good; if they believe that strongly, they ought to stand up for 27 their points of view, and what they believe the Constitution to be and the laws to be. Historically, Justice Harlan's 56 sole dissents in the 7-year period between 1961 and 1967 can be compared with Mr. Justice Rehnquist's fewer dissents over a period twice as long. I might add that Mr. Justice Rehnquist has been in the Court majority far more than several other Justices on the Court. So I find it a little bit surprising that these issues would even be raised in the way that they ve been raised. Since 1980, for example, Justice Brennan has voted for the losing side almost twice as often as Mr. Justice Rehnquist. The moderate, Justice Stevens, has been the most frequent dissenter on the current court, as I have mentioned. There are many other points that I think you could make on here, but let me just say that Mr. Justice Rehnquist has voted with the Court majority in the overwhelming bulk of the Court's cases, and especially in recent terms where he has been in dissent far fewer times than other Justices on the Court, and in particular, Justices Brennan and Marshall, who I have mentioned, and Stevens. Now, I might add that indeed he has, over the last four terms, written more opinions on behalf of the full Court, that is, more opinions for the majority, than has any other Justice. And that's something that can't be ignored. And some of these assertions here today are somewhat ridiculous. Just back to some of the reasons for these particular confirmation proceedings. Since judicial candidates, and particularly sitting justices or judges owe the Nation a duty to avoid prejudging issues, it is inappropriate for them to presume to guess in the abstract how they might decide a specific issue and its factual context. In short, Mr. Chairman, the office he now holds, and the office to which he may ascend require Justice Rehnquist to refrain from some specific answers to some questions. I mention that to assure my colleagues and other witnesses that judicial duty, not any desire to evade, may prompt the Justice to avoid responding to some inappropriate inquiries. Frankly, if this committee or any citizen wants to know how Justice Rehnquist decides questions, then his legal opinions are available to all of us to see in the 70-odd volumes of the U.S. Reports. One further point, Mr. Chairman. We are all aware that questions have been raised about this nomination which date back several decades. Not only do many of these concerns predate Mr. Justice Rehnquist's 1971 confirmation, many relate to his clerkship in 1952 Now, just to put these events in their proper perspective, I think it is important to note that at that time the hoola hoop was still a decade away from its heyday, Bonanza and the Mouscateer Club would not appear for many years. In fact, TV was still a luxury for most American homes. Car makers were not designing minivans but convertibles with enormous tailfins, and finally and most shocking of all, Senator Thurmond was still a misguided Democrat. [Laughter.] And he had not yet embarked on his Senate career. Now, imagine the Senate without Strom Thurmond and you can imagine the relevance of these-aceounts. 65-95 3 0-87- 2 28 I hope you pardon me for lowering the tenor of this esteemed proceeding for a moment, but I would, however, like to conclude on a higher note. The importance of this proceeding is illustrated by the observation of Alexis De Tocqueville that, quote, "scarcely any political question arises in the United States that is not resolved sooner or later into a judicial question." I would only add that in this era when many Supreme Court announcements and pronouncements are debated in Congress that scarcely any legal question arises that is not soon a political question sometimes for us to resolve. The legal history of this Nation, the daily lives of its citizens, the future agenda of both Congress and the Court may well be shaped by today s events. The Supreme Court will inevitably be ensnarled in the great questions of our generation, and indeed, Justice Holmes, one of the all-time great justices, noted, and by the way a lone dissenter many, many times, noted that the only peace found at the Court is the uneasy stillness found at the eye of a hurricane. I am grateful that President Reagan has chosen this individual, an individual of the quality of Mr. Justice Rehnquist, to guide the Court through the coming storms, and I think, Mr. Justice Rehnquist, you have the respect of most all of us, whether we agree or disagree with you. You have stood up and you have done what you believe is correct under the Constitution, and I believe that Senator Metzenbaum outlined those three points. When it comes to competence, when it comes to integrity, when it comes to faithfulness to the law, I believe you have a plus in all three of those areas, and I believe the majority of the American people believe it, too. I think it is time that we quit attacking everybody who comes before this committee and stop the character assassination that has been going on. It is fair to ask legitimate questions. It is fair to disagree on particular cases of law, but I think it's time to stop the politics and do what is right for the Supreme Court and this country. It is undignified to do otherwise. Welcome to the committee. I hope it will be a better experience than it portends to be.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Arizona, Mr. DeConcini.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, I will just add my welcome to Justice Rehnquist here today and yield to the Senator from Vermont. I have already made a statement on behalf of the Justice.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Vermont, Mr. Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Mr. Chairman, I think it would probably be safe to say that were it not for these hearings, Justice Rehnquist and I would probably both be where in this time of the year we both would rather be and that is Vermont. 29 The Justice has a home there with all due respect to Dennis, used during the summer as compared to, I guess, Arizona in the wintertime. The hearings we begin today, Mr. Chairman, are really among the most important that we as Senators are ever going to attend. At the close of these hearings, each Senator is going to have to decide whether or not he thinks it is in the best interest of this Nation to confirm Justice Rehnquist as the new Chief Justice. I have respect for Justice Rehnquist and a personal liking for him. I will not make up my mind about whether to vote for his confirmation until the conclusion of these hearings. I think that is the reason for the hearings. And it is also because I believe as Senators we have a solemn constitutional duty to give this nominee the very closest scrutiny on a wide range of qualifications and standards, and that duty arises directly from the Senate's unique responsibility to advise and consent in judicial nominations specified under article II in section 2 of the U.S. Constitution. The intent of the Framers in adopting the appointments clause is clear from the records of the Constitutional Convention, and the Senate obligation is clear. We are not a rubber stamp for any President nor should we be nor does the Constitution ask us to be. In fact, it is quite the opposite. We each have a duty to sift through the facts and decide whether a nominee is fit to sit on the bench. We should ask ourselves what some of the things are that we should look for in a nominee. The Constitution places no restrictions on the factors that the Senate should take into accounting in confirming a judge, but I think our responsibility demands above all the standards we need to employ, the standard of excellence. A nominee must be a person of high moral character, of integrity, who has demonstrated intellectual capacity and a fundamental understanding of the law. He or she must promise and convince all of us that he or she will uphold the Constitution of the United States. A nominee has to be competent. He or she must bring to the Court experience, ability, keen awareness, judgment, sound legal skills, and ability to write legal judgments well. But perhaps most importantly a nominee must have the capacity to be fair and impartial. There's been recent debate about whether or not a nominee's philosophy or ideology should be considered. Well, judicial candidates do not reside in a vacuum. They have judicial philosophies and policy views. A President does not nor should a President ignore these factors in the nomination process. Our country has a long history of Presidents taking the views of nominee's into account, both liberal and conservative Presidents, both Democrats and Republicans. But the Senate also has an affirmative responsibility to consider a nominee's philosophy. Indeed, we'd be remiss if we did not scrutinize a nominee's views. Our Constitution is a living document. That's part of its strength and its durability. In order for it to be responsive to new challenges of an ever-changing Nation, our Supreme Court justices must likewise be responsive. 30 If any Senator feels that a judicial nominee is so committed to a particular agenda that the nominee would not be fair and impartial, if he or she feels that the nominee would not protect fundamental rights of Americans, if he or she believes that the nominee would fail to respect the prevailing principles of constitutional law, that Senator not only has the right, that Senator really has a \sworn duty to reject the nominee. \ And during the consideration of Justice Rehnquist's nomination, each of us is going to have to evaluate the nominee. We will have special questions to answer pertinent to his nomination as Chief Justice. Can he carry out the administrative functions of that office? Can he exercise the requisite leadership? We have, as Senators, a solemn responsibility that will affect this Nation, not only now, but way, way into the future, and will require our very best judgment, our most powerful scrutiny. The Constitution demands no less nor would Justice Rehnquist expect any less from the U.S. Senate.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished assistant majority leader, Senator Alan Simpson of Wyoming.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Thank you, Mr. Chairman. We're honored to welcome to the committee today, Bill Rehnquist and his fine wife and family. It is a pleasure to have you here. It is a privilege for me to join with my colleagues in reviewing the career and the qualifications of the man nominated to be the 16th Chief Justice of the United States, a rather small number for a 210-year-old Nation. So we should be ever conscious of the importance of these proceedings and the long-term effect of this nomination upon the U.S. judicial system. I think accordingly then that we must be very careful and alert to our duty to conduct these proceedings in a fair and balanced and civil fashion, seeking light and not heat, seeking information and not confrontation. President Reagan was elected by a large majority. That has been discussed, he is one of our most popular Presidents. He has the right and the obligation to nominate .qualified men and women who share the philosophy of this President. There are also some troubling indications that I see publicly and privately—that events that occurred 20, 25, 35 years ago will be focused on here—possibly to the exclusion of this man's distinguished career on the bench since 1971. I would hope we might receive the information which we are about to be presented as if it were fresh and timely and current and not yet displayed to the public. Then let us form our opinions about that information without the taint of what we called in the law business, "pretrial publicity." I have seen a lot of that manufactured around this burg these last few weeks. Let us not neglect that extraordinary record which Justice Rehnquist has fashioned over his career, both before 1971 and after his appointment: The degrees at Harvard and Stanford where he grad- 31 uated first in his class—that escaped me in my legal student days, I may add; a policy position with the Department of Justice, confirmation to the Supreme Court by a Judiciary Committee whose majority party was not sympathetic at all to the nominee's legal philosophy. I think we want to remember that rather carefully. Then, once on the Court, a widespread reputation as a man of legal brilliance and judicial integrity and unmatched lucidity of reasoning. But, after all of that, hang on tight because here we go again. You saw the security there at the door. That is where they check you out, and actually I Ihink they check the Constitution out there at that door, too. That is where witnesses check it in. You will have to ask Ed Meese and Brad Reynolds and Mr. Manion. You are ready for this, I know. You have been out to Wyoming, and this week they have frontier days. This process will be much like coming out of chute No. 4 on a bull at frontier days. You will be ready for that. It is not as bad as the CSU-Wyoming football game which you went to last fall, but here you are still going to see things that are called loose facts, maybe no facts. You are going to see hearsay— which we do not even call hearsay evidence. We leave off evidence. We just call it hearsay. That is the worst kind. You will see nastiness and hype and hoorah and maybe even a little of hysteria. This is that other branch. We are not bound by the strictures of the law. The niceties and the nuances of the law are not always found in these surroundings, sadly enough. That is why we try to remove judges from politics. Those are things we try to do because it is better for them. Who would want to go through it? You are headed into a process where appetite and ambition compete openly with knowledge and wisdom, a very imprecise operation I can assure you. I know you are ready for all that. I think of Rudyard Kipling and his remarkable poem If," which is worth reading whether you are 27 or 57 or whenever. One of the lines is, "If you can bear to hear the truth you have spoken twisted by knaves to make a trap for fools." You will need that one. You must be ready to hear and listen—with these lights in your face and people watching—to listen and hear that you are a racist, an extremist, which has already been suggested time and time again clearly, a trampler of the poor, a sexist, a single dissenter, whatever that is, an unwell man, a crazed young law clerk who is about two tacos short of a combination plate, and a violator of the sacred ballot when all you were doing is what every Democrat and Republican at this table has done. It is called ballot security and appearing at the polls. We have all done that as politicians, young politicians. Here it all comes, a violator of the sacred ballot, an assassin of the first amendment. And yet 35 or 30 or 20 years ago was a very different time. A snapshot of another era. Civil rights in 1952: That was a very different time before Brown; before the 1964 Civil Rights Act that was passed in this Senate in a dramatic fashion. And there is one for you. There are men in this present Senate on both sides of the aisle who voted against that. Are they less honorable because they were on the other side of the Civil Rights Act? 32 Why do we ask a higher standard of them or a higher standard of a 27-year-old law clerk? Interesting issue, but it will come. Well, I would hate to go back and drag up all my old red wagons. I was always in trouble. When something happened in my hometown, the cop car drove up to our house. It was a ritual, an absolute ritual. My mother gasped, my father sighed. The collected mumblings and memos of Al Simpson 35 years ago would be grotesque because change is the essence of life and creeping maturity is what we all had best be involved in. If I had not changed I would have been in the clink, and that is for sure. Check that record. It is a dazzler. I am a birdwatcher here. I love this place. I love the Senate, but you are going to get a spirited exercise. I warn you of a bird of prey which is not in the Senate, and I describe it ornithologically. I have described it before; be on the lookout for them. They are described best as a bug-eyed zealot, heavylided, characterized by ruffled feathers and a pinched bill. They scratch for and dig up dusty facts from old dirt, and then make a continual thin whining noise whenever the President pulls one of his appointees out of the bag. You want to watch for them. They are endemic to the process and a little spooky to observe, and they are out here right now. I have seen some of them today perched on the edge of their roost waiting to gin up more stuff as soon as we get to them here today. So, I say to you, sir, it is a pleasure and distinct privilege to have you here and I know you are ready for this. It is an exercise which is not pleasant, and I hope that we will remember that you are a sitting Supreme Court Justice of the United States of America, not somebody that wandered in to be approved to the Federal bench in some State, district, or circuit court. You ought to receive that due acknowledgement. We should review your work product carefully, exceedingly carefully, but we should not delay these proceedings unduly in a search aimlessly to get this man, and I will be proud to be a part of a swift and well-deserved confirmation of you as the 16th Chief Justice of the United States. The Nation will be well served by you, sir. You are a splendid gentleman. I have no further comment.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Alabama, Judge Howell Heflin.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. First, I would like to welcome you personally to this hearing as well as your wife and family. I am not here to condemn you or to praise you but to try to endeavor to do my duty fairly and justly. I approach these committee hearings with a sense of awe. It is a privilege to participate in the process of nominating an individual who will probably become only the 16th Chief Justice in American history. There have been only 15 before him during the 210 years of this Nation's existence. I feel a deep and an abiding sense of responsibility because, while it is a privilege, it is also a power, one man- 33 dated by the Constitution to advise and consent on judicial nominations. It is an awesome obligation to the Court and to the people. If it can truly be said that justice is our ultimate goal and that justice is indispensible for the survival of our free republic, then we can best assure and maintain it by exercising extreme diligence in selecting individuals who will care for our Constitution as its custodian. The task that brings us here today is an important one. It is the process by which a branch of government renews itself, a process of regeneration, of pumping new blood into the life of a great and vital institution. Hopefully, our system of justice will profit from a transfusion of energy and innovative ideas as well as from a new pacemaker. Some may question the analogy of new blood since Justice Rehnquist has served on the Court for the past 14 years. But today, we are considering Justice Rehnquist for a different position, Chief Justice of the United States. While he will continue to serve on the Supreme Court, he will also, if he is confirmed, be assuming a new and extraordinarily important leadership responsibility to America's system of justice. One might say that a more appropriate analogy of the confirmation of a Chief Justice would be the changing of the guard, the passing of the leadership role from one Chief Justice to another. For the past 17 years Chief Justice Warren Burger has labored strenuously to improve and modernize our entire judicial system. His efforts have met with a tremendous degree of success. If Justice Rehnquist is confirmed, I hope he will continue to improve the organization, the structure and the efficiency of State and Federal courts. The independence of our judiciary is measured only by the strength of its parts. While it is manifestly important to thoroughly examine this nominee's qualifications and the role that he will assume as Chief Justice, it is also fitting and proper that we take note of the critical role that the Supreme Court plays in our system of segregated powers. I have always believed that the establishment of the Supreme Court was the crowning marvel of the wonders wrought by the members of the Constitutional Convention almost 200 years ago. The creation of the Supreme Court with its appellate powers was the greatest conception of the Constitution. No product of government either here or elsewhere has ever approached its grandeur. It would be impossible for the members of this committee to take the task at hand too seriously. The Court itself, in the position for which Justice Rehnquist has been nominated, has no parallel in ancient or modern times; no other court has been vested with such high prerogatives. Its jurisdiction extends over sovereign States as well as over the humblest individuals, but it should not encroach upon the reserved rights of the States or abridge the sacred privilege of local self government. It is my hope that each member of the Supreme Court will never let individual freedom be the price of justice, but rather the result. 34 Justice Rehnquist, you were once asked in an interview what qualities should a Supreme Court justice possess. You responded in part with a quote from Cicero, He saw life clearly and he saw it whole. It is my hope that you will consider the immense duty being proposed to be entrusted to you, that you will remember that you are no longer just a lawyer, no longer just a judge, no longer just an administrator. If confirmed you will become the Chief Justice of the United States. While your major responsibility will be to the work of the Court, your leadership cannot help but impact upon the entire American system of justice. Look to your duty clearly as a whole. There is much to be done. It is an awesome responsibility, an arduous task but an appropriate demand for the Chief Justice of our Supreme Court. There is no higher honor in the Judiciary, but while it is a position of strength, it is also one of humility. In effect, you are a servant to many masters, the Supreme Court, the Federal courts, the State courts, and the American public. Serve them all well, all fairly, all equally, and your legacy will not only be compelling but complete. Good luck.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Iowa, Mr. Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Today this committee begins one of its most solemn duties, and although the full Senate must ultimately act on this nomination, this committee has the obligation to build a record and to conduct the most in-depth inquiry that we can. Fortunately, in the pursuit of that duty, we are aided in our inquiry by the fact that this nominee already has a well-documented record of Supreme Court jurisprudence. No doubt some would quarrel and some have already with that record and with that judicial philosophy. I expect that we will hear witnesses who would take issue with the results or even with the legal reasoning of some of those individual cases, but that is not the point of our hearing. Instead, we must assure ourselves that this nominee has the qualities deserving of the most important role on the most important court in our land, and for example, I would think that we ought to cover whether this nominee is a person of unquestioned integrity. Will he render his opinions based on the Constitution and the relative statutes without regard to personal belief when those beliefs conflict with the law? Is he a person of great intellectual capacity and knowledge of our Constitution? Will he exhibit an even judicial temperament, one that resists judicial activism and is not swayed by the mere breeze of public opinion? Does he have a full appreciation of the separation of power principle and the careful balance between our coequal branches of the Federal Government? 35 Likewise, does he recognize that powers not expressly given to the Federal Government by the Constitution are reserved to the States and the people thereof rather than to the Supreme Court? And particular to this role as Chief Justice, will he be a thoughtful and eloquent spokesperson on important issues of judicial administration and the role of the high court? I look forward to our hearings as the best way to answer these questions. About a few items however there can be no doubt. It has been said both by those who agree and those who disagree with the nominee that Justice Rehnquist is a man of powerful intellect and very great independence of mind. A fellow justice is said to have remarked that no member of the Court carries more constitutional law in his head than Justice Rehnquist. These qualities will, undoubtedly, stand him in good stead as Chief Justice. With respect to his opinions, it seems to me that Justice Rehnquist has struck several consistent themes, prominent among these is federalism, a belief that Federal intervention into the affairs of a State requires convincing justification and that, in fact, it ought to be an exception rather than the rule. Other themes include a commitment to the Framers original intent, a skepticism about judges setting out to solve social problems by themselves, a defference to legislative judgments and to the political process and a belief that judicial review ought to be restrained within clearly defined bounds. All of these views will also, in my opinion, make him an effective Chief Justice, and so I look forward to these hearings, making those points that I think establish and certify what we already know about this gentleman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Illinois, Mr. Simon.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. I want to join in welcoming Justice Rehnquist and his family. Several things have been talked about here. One is what is our role here, and I may be accused by Senator Simpson of being that bird to dig something out of the dust here now but I think as fine an article about what our role is that I have read was written by William H. Rehnquist in 1959 in the Harvard Law Record. I have an idea it is more carefully read today than it was in 1959, Mr. Justice. But among other things he said the Senate should thoroughly inform itself on the judicial philosophy of the Supreme Court nominee before voting to confirming him. He talks about the debate when Herbert Hoover nominated Judge John Parker, who was rejected 41 to 39, but says that debate was the kind of debate and care that we should be providing. He quotes Senator William Borah of Idaho saying: Upon some judicial tribunals it is enough perhaps that there be men of integrity and of great learning in the law. Upon this tribunal something more is needed, something more is called for, for here the widest, broadest, deepest questions of government and governmental politics are involved. 36 And then the future Justice writes: In the case of the Supreme Court, the something more which Borah spoke 01 comes into play. I would prefer to interpret this phrase not as meaning that it takes more ability to be a Justice of the Supreme Court than a judge of the lower federal courts but rather that there are additional factors which come into play in the exercise of the function of a Supreme Court Justice. If greater judicial self-restraint is desired or a different interpretation of the phrases "due process of law" or "equal protection of the laws," then men sympathetic to such desires must sit upon the high court. The only way for the Senate to learn of these sympathies is to inquire of men on their way to the Supreme Court something of their views on these questions. It makes a pretty good, solid analysis. The questions that I am concerned about are these. First, what is the role of the Chief Justice and particularly Justice Rehnquist, what is your vision of that? One of the things that hit me as I was reading, one of the things I just somehow thought picking the Chief Justice was in the Constitution that the President is supposed to do that. It is a statutory thing. I am not at all sure when this is all over that we should not be looking at whether we really ought to be involved in this. The President should be involved or whether the Justices themselves in the future should not be selecting the Chief Justice. I think it is basic as Senator Grassley has just said that the Chief Justice be a person of ability and integrity. I think the other questions I have that I would like to probe during the course of these hearings, one, is the nominee open-minded? Two, can he be a symbol of fairness to all people in this country, because the Chief Justice is not only an administrator but a symbol for the country? Three, does he show a sensitivity in this whole area of civil liberties? Related to that is, four, basic respect for the Constitution, how we view church-state issues, first amendment issues, and other issues? And on those areas I have questions and concerns. There is a fifth one that I think is also extremely important. Does he have the courage to be unpopular? Some of my colleagues view the numbers of dissents that Justice Rehnquist has made as a liability. I think we ought to examine the content but frankly, I view it as an asset that someone shows the courage to stand up. As you view the history of the Court, occasionally the Court has not had the power, the courage to be unpopular. One example in my lifetime, a tragic example is when Japanese Americans were taken from the West Coast and the U.S. Supreme Court bowed to public opinion rather than the Constitution. But does the nominee have the courage to be unpopular? I think that is another important question. These are the things I am going to weigh as I consider how to vote. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from Alabama, Mr. Denton.
Senator Jeremiah Denton (AL)
Senator
(R)
Senator DENTON. Thank you, Mr. Chairman. It is indeed a great honor and a pleasure to welcome Mr. Justice Rehnquist before this committee, and I offer you my personal con- 37 gratulations, sir, on your nomination to serve as the 16th Chief Justice of the United States. It is most appropriate at this time that we also take a moment to pay tribute to the retiring Chief Justice, Warren Burger. He has devoted 17 tireless years to the Supreme Court. Throughout that time, he strived to make an overburdened judicial system more efficient and innovative and has unflinchingly spoken out against the misuse of the law to delay or deny justice. In a recent television interview he eloquently spoke of the importance of the upcoming 200th anniversary celebration of the U.S. Constitution. Indeed, it will be a time to honor a document which has guided us so well and a time for Americans to pause and ponder the freedoms and liberties which we hold so dear. Chief Justice Burger will make yet another indelible mark on America's history as he presides over that great celebration and we wish him the very best as he devotes his full time and energy to the bicentennial of America's Constitution. Mr. Chairman, in my belief we have before us today a man whose distinction in jurisprudence has quickly established him as one of the great jurists of our time. He is recognized as a keen intellect on the Court and one who discharges his duties with alacrity and skill. It is a tribute to our President to have chosen such a highly qualified man to serve as the first among equals for the U.S. Supreme Court. I feel sure that his vitae have been reviewed. I will ask that my complete statement be included in the record, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered.
Senator Jeremiah Denton (AL)
Senator
(R)
[The prepared statement follows:] Mr. Chairman: It is indeed a great honor and a pleasure to welcome Mr. Justice Rehnquist before this committee. I offer my personal congratulations to you, Justice Rehnquist, on your nomination to serve as the sixteenth Chief Justice of the United States. It is most appropriate at this time that we also take a moment to pay tribute to retiring chief Justice Warren Burger. He has devoted seventeen tireless years to the Supreme Court. Throughout that time he has strived to make an overburdened judicial system more efficient and innovative, and has unflinchingly spoken out against the misuse of the law to delay or deny justice. In a recent television interview, Chief Justice Burger eloquently spoke of the importance of the upcoming 200th anniversary celebration of the United States Constitution. Indeed it will be a time to honor a document which has guided us so well, and a time for Americans to pause and ponder the freedoms and liberties which we hold so dear. Chief Justice Burger will make yet another indelible mark on America's history as he presides over this great celebration, and we wish him the very best as he devotes his full time and energy to the bicentennial of America's Constitution. Mr. Chairman, we have before us today a man whose distinction in jurisprudence has quickly established him as one of the great jurists of our time. Justice Rehnquist is recognized as a keen intellect on the Court, and one who discharges his duties with alacrity and skill. It is a tribute to our great President to have chosen such a highly qualified man to serve as the "first among equals" for the United States Supreme Court. William Rehnquist was graduated first in his class from Stanford Law School in 1952, where he also served as Editor of the Lav/ Review. One of his law school professors called William Rehnquist "the outstanding student of his law school generation." 38 In 1952 and 1953, William Rehnquist served as a law clerk to Associate Justice Robert H. Jackson. He then moved to Phoenix to pursue private law practice, only to return to Washington in 1969 to serve in the Justice Department's Office of Legal Counsel as Assistant Attorney General. He was nominated to his present position as Associate Justice on the United States Supreme Court by President Nixon in 1971. Mr. Chairman, when William Rehnquist and Lewis Powell were before this Committee in 1971 as Supreme Court nominees, Senator John L. McClellan (D-Ark.) exhorted his colleagues to pursue the following line of thinking when considering the nominations. In considering these pending nominations, said Senator McClellan, "three issues face this committee, and will late face the Senate: Do these nominees have personal integrity? Do they possess professional competency? Do they have an abiding fidelity to the Constitution? After personal integrity and professional competency," continued Senator McClellan, "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." In the last fifteen years as an Associate Justice on the Supreme Court, Justice Rehnquist has more than adhered to those criteria articulated by Senator McClellan. With regard to his personal integrity, Justice Rehnquist has lived up to his word delivered to this committee in 1971 during his nomination hearing. There he spoke of Justice Frankfurter's famous adage that, "if putting on the robe does not change a man, there is something wrong with the man." Justice Rehnquist went on to say: "When you put on the robe, you are not there to enforce your own notions as to what is desirable public policy. You are there to construe as objectively as you possibly can the Constitution of the United States, the statutes of Congress, and whatever relevant legal materials there may be in the case before you." Mr. Chairman, I would assert that Justice Rehnquist has demonstrated his personal integrity by avoiding the temptation of unnecessarily expanding the law beyond precedent, adhering to a strict reading of the Constitution. In his fifteen years on the bench, Justice Rehnquist has remained faithful to his word. In terms of professional competence, Justice Rehnquist has demonstrated that he is second to none. One need look no further than a Rehnquist opinion to find a profound, clear and tightly worded text. The Wall Street Journal recently said that: His opinions are famous for going to the heart of issues. There is rarely any doubt among lower courts about what a Rehnquist opinion means. Finally, Mr. Chairman, Justice Rehnquist has clearly shown that he has lived up to Senator McClellan's third and final criterion: fidelity to the Constitution and to precedent which has developed through the history of our nation. His fifteen year term on the Court, combined with recent constitutional history, provide a clear example of that fidelity to the Constitution and to precedent. In the 1976 case of National League of Cities vs. Usery, the Court found that the 1974 amendments extending the Fair Labor Standards Act to state and local governments unconstitutionally infringed on state sovereignty protected by the tenth amendment. Justice Rehnquist clearly stated the Court's majority position, firmly adhering to the dictates of the tenth amendment. The opinion stated that, "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress, but not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." Nine years later, the Court reversed itself on this particular issue in Garcia vs. San Antonio Metropolitan Transit Authority by overturning a lower court ruling precluding the Transit Authority from adhering to the overtime pay requirements of the Fair Labor Standards Act. Significantly, the majority placed little emphasis on the tenth amendment protection of state and local sovereignty on which Justice Rehnquist had based his earlier opinion in National League of Cities. Justice Rehnquist joined Justice O'Connor in a dissenting opinion which reflected the total consistency of his constitutional interpretation. The dissent stated that, "the States . . . have legitimate interests which the National Government is bound to respect even though its laws are supreme." In his own dissenting opinion, Justice Rehnquist spoke of the principle from the National League of Cities case which would, "in time again command the support of a majority of this Court." Mr. Chairman, it is a special privilege and a keen honor to have before us today a man who wholly adheres to those qualities of personal integrity, professional competence, and fidelity to the Constitution. I urge my colleagues to give him their strong- 39 est support and approve his nomination as the sixteenth Chief Justice of the United States. Thank you, Mr. Chairman. Senator DENTON. Mr. Chairman, when William Rehnquist and Lewis Powell were before this committee in 1971 as Supreme Court nominees, Senator John L. McClellan, a Democrat from Arkansas as we know exhorted his colleagues to pursue the following line of thinking when considering the nominations: In considering these pending nominations, said Senator McClellan, "three issues face this committee and will later face the Senate. First, do these nominees have personal integrity? Second, do they possess professional competency? Third, do they have an abiding fidelity to the Constitution?" Continuing the quotation, he said, "After personal integrity and professional competency, 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." In the last 15 years as an Associate Justice on the Supreme Court, Justice Rehnquist has more than adhered to those criteria articulated by Senator McClellan. With regard to his integrity, he has lived up to his word, delivered to committee in 1971 during his nomination hearing. There he spoke of Justice Frankfurter's famous adage that, "If putting on the robe does not change a man, there is something wrong with the man." Justice Rehnquist went on to say, "When you put on the robe, you are not there to enforce your own notions as to what is desirable public policy. You are there to construe as objectively as you possibly can the Constitution of the United States, the statutes of Congress and whatever relevant legal materials there may be in the case before you." Mr. Chairman, I would assert that Justice Rehnquist has demonstrated his personal integrity by avoiding the temptation of unnecessarily expanding the law beyond precedent, adhering to a strict reading of the Constitution. In his 15 years on the bench, Justice Rehnquist has remained faithful to his word. My personal respect for Justices was contained in a review of some quotations I had gathered over the years at the Naval Academy and in my youth in a book written by a man named Ed Brandt, and it had a quotation that said something like a naval officer should wear his blue as a justice's robes without a stain. I think Justice Rehnquist has demonstrated that kind of wearing. In terms of professional competence, Justice Rehnquist has demonstrated that he is second to none. One need look no further than a Rehnquist opinion to find a profound, clear and tightly worded text. The Wall Street Journal recently said that, "His opinions are famous for going to the heart of issues. There is rarely any doubt among lower courts about what a Rehnquist opinion means.' Finally, Mr. Chairman, Justice Rehnquist has clearly shown that he has lived up to Senator McClellan's third and final criterion, fidelity to the Constitution and to precedent which has developed through the history of our Nation. 40 His 15-year term on the Court combined with recent constitutional history provide a clear example of that fidelity to the Constitution and to precedent. In the 1976 case of National League of Cities v. Usery, the Court found that the 1974 amendments extending the Fair Labor Standards Act to State and local governments unconstitutionally infringed on State sovereignty protected by the 10th amendment. Justice Rehnquist clearly stated the Court's majority position, firmly adhering to the dictates of the 10th amendment. The opinion stated that, "There are attributes of sovereignty attached to every State government which may not be impaired by Congress, but not because Congress may lack an affirmative grant of legislative authority to reach the matter but because the Constitution prohibits it from exercising the authority in that manner." Nine years later, the Court reversed itself on this principle in Garcia v. San Antonio Metropolitan Transit Authority, by overturning a lower court ruling precluding the transit authority from adhering to the overtime pay requirements of the Fair Labor Standards Act. Significantly, the majority placed little emphasis on the 10th amendment protection of State and local sovereignty on which Justice Rehnquist had based his early opinion in National League of Cities. Justice Rehnquist joined Justice O'Connor, and that reminds me: I should have said the way a Justice wears his, or her robe without a stain—Justice Rehnquist joined Justice O'Connor in a dissenting opinion which reflected the total consistency of his constitutional interpretation. The dissent stated that, "The States have legitimate interests which the national government is bound to respect, even though its laws are supreme." In his own dissenting opinion, Justice Rehnquist spoke of the principle from the National League of Cities case, which would, "in time again command the support of a majority of this Court." As I said, Mr. Chairman, it is a special privilege and a keen honor to have before us a man who wholly adheres to those qualities identified by Senator McClellan. I urge my colleagues to give him their strongest support and to approve his nomination as the 16th Chief Justice of the United States. I thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The able and distinguished Senator from Pennsylvania, Mr. Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Justice Rehnquist, I join in welcoming you and your family to these proceedings. I have observed your career since 1969, when our first contact occurred, when you were an Assistant Attorney General and I was a district attorney. You have had a very distinguished career. The Constitution gives this committee, and the Senate, a heavy responsibility in the advice and consent function, and that responsibility is heavier when it is a Supreme Court Justice, and especially the Chief Justice, because the Supreme Court must be the final arbiter of the Constitution. 41 Now, I intend to listen very carefully and to evaluate these proceedings very closely. I think that the Senators who have spoken before me have outlined the factors to be considered. I think the time now has come to hear from the witnesses, and to see what proceeds in this hearing room. Thank you very much, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you very much. The able and distinguished Senator from Kentucky, Mr. McConnell.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Thank you, Mr. Chairman. Being in the same Judiciary Committee hearing room with Justice Rehnquist gives me a sense of deja vu. We have both been here before, going back to 1969, when I was an assistant to a Senator on this committee and you were Assistant Attorney General. We were working on what some would argue were rather controversial Supreme Court nominations in those days, leading to an article that I published in a Kentucky law journal with which I believe Justice Rehnquist is familiar, in which I outlined my own views about what the appropriate criteria are for the Senate in advising and consenting to nominations for the Supreme Court. Mr. Chairman, I would like to ask unanimous consent that that be included in the record at this point.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered. [The document follows:]
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. I do not see any point, particularly being this far down the seniority scale, in reiterating all those criteria. We will go into them at length later. I also came back and worked with you, if you will recall, when your own nomination was before the Senate Judiciary Committee. In the meantime, I, like everyone else, have had a chance to observe your work for the last 15 years, and I want to just tell you, Mr. Justice Rehnquist, it is a privilege to have known you before your nomination, to have worked with you on frequent occasions in those days; to watch the humility, grace, and dignity with which you have handled your position on the U.S. Supreme Court for the last 15 years. There is no man in the entire country, or woman, in the entire country, in my opinion, better suited for this job, at this particular time, than you are. And so I am excited to support your nomination. It is a thrill to be here and to see you before this group, being proposed for the Chief Justice position, and you can count on my support. Mr. Chairman, I also had an opening statement which I would also like inserted in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Thank you, Mr. Chairman. [The statement follows:] Mr. Chairman, I would like to add my voice today in wholehearted support of the nomination of William Hobbs Rehnquist to be Chief Justice of the United States. I commend and fully endorse President Reagan's selection of Mr. Justice Rehnquist, and urge my colleagues on this committee to expeditio 72 professional qualifications, Mr. Rehnquist is one of the best persons available for appointment to the Supreme Court." Mr. Rehnquist's tenure as Associate Justice of the Supreme Court has certainly substantiated this evaluation. And I am confident that when the ABA committee's present evaluation is presented to this committee, it will not only equal but surpass the previous finding. The second criterion I proposed to apply to Supreme Court nominees was based upon achievement. Sixteen years ago, in referring to the nomination of one candidate for the Supreme Court, I noted that "[A]fter all, it is the Supreme Court the Senate is considering not the police court in Hoboken, N. J. or even the U.S. district or circuit courts." Our Nation s highest court demands the highest level of excellence. Mr. Chairman, this nominee has more than amply demonstrated that level of excellence. Mr. Rehnquist has consistently demonstrated a level of professional achievement that all members of the legal profession may envy. After graduation, Mr. Rehnquist served as a law clerk to Mr. Justice Robert H. Jackson. After his clerkship with Justice Jackson, Mr. Rehnquist entered private practice in Phoenix. When he left Phoenix in 1969, to serve in the Justice Department, he was rated at the highest level in Martindale-Hubbell. I can testify from personal knowledge as to his ability as an Assistant Attorney General of the United States. And as the record of this hearing will amply demonstrate, Mr. Justice Rehnquist has excelled as a member of the Supreme Court. Mr. Chairman, I can think of no man better qualified to serve as Chief Justice of the United States. Third, judicial temperament is vitally important. Service on the Supreme Court demands that an individual possess the highest degree of fairness, integrity, and courtesy. I know from my own experience, that Bill Rehnquist certainly conforms to these standards. As an aside, although I would not characterize it as being a formal prerequisite to service on the Court, I would mention Bill's well developed sense of humor. I am sure that sense of humor has and will continue to promote the necessary comradery among nine individuals engaged in such stressful and intense responsibilities. The final two criteria I would apply to nominees require that the nominee must have violated no standard of professional conduct rendering him unfit for confirmation, and nor committed any serious impropriety in private life. While I, regretfully, anticipate attempts to cast doubt on Mr. Rehnquist's character on the basis of events delved into at length in his prior confirmation hearing, I am absolutely confident that these attempts will necessarily fail. These allegations speak more to the politics of the confirmation process than to the personal integrity and professional competence of the nominee. The "evidence" brought forward to date has failed to raise even a scintilla of doubt in this Senator's mind. Fortunately, we have not reached the day, I hope, when trial by media rules the confirmation process. I was particularly troubled by a series of recent articles focused on memoranda produced by Justice Rehnquist during his clerkship with Justice Jackson. In a letter to the editor of the Washington Post, John G. Kester, a former clerk for Justice Jackson, discussed how faulty this line of attack has been. It is precisely a sense of conviction and strength of opinion that makes a clerk valuable to a Justice. I would urge my colleagues to focus on the relevant body of writing—Justice Rehnquist's opinions for the Supreme Court. While I fully respect the opinions of my colleagues who disagree with the choice of Mr. Rehnquist, and who would have made a different choice, I believe that a heavy burden must be met by those who would have this nominee rejected. Under the Constitution, our duty is to provide advice and consent to judicial nominations, not to substitute our judgement for what are reasonable views for a judicial nominee to hold. I believe that if this nomination proceeds on the merits, William Hobbs Rehnquist will be quickly confirmed as our next Chief Justice of the United States.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The able and distinguished Senator from North Carolina, Mr. Broyhill.
Senator Jim Broyhill (NC)
Senator
(R)
Senator BROYHILL. Thank you very much, Mr. Chairman I appreciate the opportunity to participate in this historic event. In his 73 years on the Court, Associate Justice Rehnquist has proven himself to be a man of great intellect, and also of high integrity. More importantly, he has continued in his respect for, and has continued a defense of, his views of the Constitution. Now the President has appointed Associate Justice Rehnquist as the Chief Justice with the full knowledge and recognition of those strong views. The President knows that strong leadership is needed on the Court, and that Justice Rehnquist has shown the capability of carrying out that responsibility. The president also has the right, and I think the responsibility, to nominate a person who shares his views on the interpretation of the Constitution. I look forward, Mr. Chairman, to the exchange of views in these hearings, and participation of these witnesses before the committee. Thank you very much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, this is your hearing, but you haven't had a chance to say anything yet. We now ask you to come around. If you will stand and raise your right hand and be sworn. [Justice Rehnquist stands and raises his right hand.] The CHAIRMAN. Will the evidence you give at this hearing be the truth, the whole truth, and nothing but the truth, so help you god?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It will.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Have a seat. We won't ask any questions this afternoon, but first would you like to introduce your family who is here? TESTIMONY OF HON. WILLIAM H. REHNQUIST, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, TO BE CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I would very much, Mr. Chairman. My wife of 33 years, Nan. My daughter, Janet. My son-in-law, Joe Lynch.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you very much. Do you have any opening statement that you would care to make?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do, Mr. Chairman. Mr. Chairman, members of the Senate Judiciary Committee, it is a great honor to have an opportunity to appear before this committee today. I am deeply grateful to the President for the confidence he manifested in me when he nominated me to be Chief Justice of the United States, and I welcome the opportunity these hearings afford the committee and the Senate to discharge their constitutional duty in the appointment process. I want to thank Senator Dole, Senator DeConcini, Senator Warner, and Senator Trible for spending the time and effort necessary to introduce me to the Committee. I am at the committee's disposal, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Are there any other remarks you would like to make at this time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, Mr. Chairman. I understand the questioning is reserved for tomorrow.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That's correct; we will refrain from questioning you this afternoon. And, unless somebody has something else to say, we will now stand in recess.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, I have no questions, but
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I don't want the nominee for Chief Justice to overlook the fact that Senator Goldwater put a statement in the record. You want to thank him, too, don't you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Senator Metzenbaum. Let me amend my statement to thank Senator Goldwater.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Senator Metzenbaum would make a heck of a clerk, wouldn't he? [Laughter.] Mr. Chairman, I have no questions for the Chief Justice, but I do think there are two things that we should settle unrelated to the Chief Justice's presence, raised by two of my colleagues, and one item raised by me, before we begin tomorrow morning so we can 93 begin tomorrow with a clean slate right out of the box, if I may, if it's appropriate. I'd like to raise those with you now. As far as I'm concerned, the Chief Justice can be excused—I have no questions for him. But I do have a question for you, Mr. Chairman, and my colleagues have one also.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, I'm not on trial, but I'll try to answer it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, no, no, it's no trial. I really think, in light of the—and I'd like to publicly thank the Chief Justice nominee for his indulgence today, and specifically for it must be notwithstanding whatever degree of confidence a nominee has in his or her ability, it's not an easy thing to go through, as the rodeo king from Wyoming has pointed out earlier today. [Laughter.] But I hope he understands—I know he does—why the hearing was delayed, and I want to publicly thank the chairman—Ambassador and Governor and statesman extraordinaire Averell Harriman's funeral was today in New York, and many of us wished to attend. So I appreciate the accommodation. And in order to be able to get things off to a running start tomorrow so we can conclude this hearing as expeditiously as is reasonable, I'd like to ask a few procedural questions, Mr. Chairman. This is not a trial, it's just a matter of working it out so we don't wrangle about it tomorrow if we can settle it tonight. First of all
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. IS it my understanding that I may be excused, Mr. Chairman?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. From my standpoint, yes.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. YOU are now excused, if you wish; he just wants to ask me a question. We are going to meet at 10 o'clock—stand in recess until 10 tomorrow—and you are now excused.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Mr. Chairman, and members of the committee.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We don't stand in recess yet.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, we don't. Mr. Chairman—I'd make a heck of a clerk to the Chairman—Mr. Chairman, there are two matters that we have to resolve, if you would, as you say, in the open, and several we have to resolve when we move off the dais here. But the first is I would like to respectfully suggest that in order to have some continuity to the hearing tomorrow in a nomination as significant as the Chief Justice's, that rather than limiting our questions to 10 or 15 minutes, each Senator be allowed in the opening round to have a half hour of questioning with the Chief Justice, so that there is continuity, so that we know what we are asking and have an opportunity to follow up on it so it doesn't come off like a White House press conference—I don't mean President—any White House press conference. So I would like to ask you whether the chairman would be willing to extend the questioning period for each Senator to one-half hour so we can plan our time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Ordinarily, we allow 10 minutes to each Senator. We have 18 Senators, and that takes a long time to get around. I had in mind, tomorrow, to allow 15 minutes to the Senator. In order to compromise this situation, then, we will double the 10- 94 minute time and allow 20 minutes to each Senator. I think that would be fair.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I concur with that, Mr. Chairman, and, as usual, you are always accomodating. Two of my colleagues have raised with me a question that they could better articulate than I, and I happen to agree with them on the point, hut I would like to yield to Senator Metzenbaum, at this moment, if I may.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, at the meeting we had in your office, I had indicated to you that, on behalf of Senator Simon and myself, we had wanted the Arizona and California witnesses to be present at the hearing. Duke indicated at that time, that the FBI was completing its investigation. It is now my understanding the investigation has been completed. I have not seen that, but I understand there is a single copy of that report in Duke's office. Regardless of what the FBI has concluded, I think we are all good enough lawyers to know that the best evidence comes from the witnesses themselves, and that the right to examine the witnesses, and cross examine them, is entirely appropriate. Therefore, on behalf of Senator Simon and myself— Senator Biden joins us, and I think other Members do as well—I would like to be certain of that, so there will be no delay in these proceedings, that the chairman instruct the staff to arrange for the 12 witnesses, or whatever the exact number is, to be present at such time as the chairman designates.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I had not had a chance to review it. The report just came in at 3:30 this afternoon, but I will do it by tomorrow's meeting, and at that time I will be glad to respond. We wish to extend every privilege we can.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, you have been very cooperative, and I do not wish to be in a position of confrontation with you, but I want to point out, that you have made it clear that if you can you would like to conclude the hearing by Friday. I do not have any desire to delay the time of the hearings, but I want to say that these are people who are out in the countryside. They are not waiting for fall. They are not ready to drop everything they are doing. They have to make arrangements with their own families in order to travel across the country. You lose three hours in crossing the country. And I would very strongly urge you, so that we not get into a wrangle about whether we have a hearing next week, or what we do—I would very strongly urge you, Mr. Chairman, that regardless of the FBI's report, that you instruct the staff to go to work tonight, seeing to it that arrangements are made for those witnesses to come at any time that the chairman feels is an appropriate time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, the staff and I will review the FBI reports tonight, and I am quite sure the matter can be handled satisfactorily.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, if I can add
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I would not want to make any final statement until I review the report.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, Mr. Chairman, during your deliberation, let me point out the following: My staff, Mr. Govan, and other staff members in the minority, have in fact spoken to—over the telephone—we know none of these witnesses—have spoken to each of 95 them on the telephone, I believe each and every one. And I really think that, notwithstanding what the FBI report says, we all acknowledge we do not know what it says. Notwithstanding what it says, that the committee should not be bound, one way or another, by the FBI interpretation of a witness' legitimacy or illegitimacy. That is the business of the committee. And I would, based on the assertion of two of the investigators on this side, and I suspect maybe Mr. Short has also spoken to some, I strongly urge that the chairman move through this, as he will, expeditiously, by just suggesting that these witnesses, 99 percent of whom are new to this process, they were not—prior to the last hearing on Justice Rehnquist—that they be called, and we can judge their credibility here, notwithstanding the FBI report.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, that is an additional twelve witnesses. That is a good many more witnesses. Now I understand that one of those witnesses refused to be interviewed by the FBI.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, I think it is appropriate, if he refuses to come, then—if they refuse to come, do not
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I do not mean refused to come. He just refused to be interviewed, and if he refused to be interviewed I would oppose his testifying until he does agree to an interview.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Democrats requested these interviews by the FBI.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, I do not want to argue about that. Let's agree on 11 out of 12, then, and we can save the 12th for another time, to discuss.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And it may be that he
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, it may be there is a lot of duplication. I am not too sure we will need that many. Maybe we can. I will try to work it out. I will give you an answer tomorrow.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, I think the Senator from Illinois wishes to be heard.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes. If I could just join in supporting the request of my colleagues. It does seem to me, because of the importance of this, that no question should go unanswered. If there is a possibility of something out there, we ought to know about it. I would urge the chairman to very seriously consider this request. And frankly, I am among those who is not sure how I am going to vote yet on this nomination.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I am sure we could use some of those witnesses. I just wonder, if there is duplication, if we need to have 12, or even 11, and that is the reason I would like to look at the report there, and we can get together on it in a satisfactory way, I am quite sure.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Well, I would trust the judgment of the chairman, but I would urge him to seriously consider this request.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I understand there are about 50 names in the report there, and so I think I would have to take a look at it, but we will give you an answer in the morning. 96
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, Mr. Chairman, we want to work with you but we do not want to wait for the very last minute, and I think getting one or two would not be adequate. I think it is a question of bringing—we are not now talking as the committee's
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, could you agree on six, for instance, if they—in other words, in those, is there not a lot of duplication? If some of them know the facts, could they not just
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, this is a matter of credibility, Mr. Chairman, and obviously, numbers relate to credibility.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, Mr. Chairman
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. If I can just finish. Maybe the way to resolve this is to let us set—let the chairman set a time when the witnesses will appear, if they are called. So, all of them are on notice, that if we conclude they should be called, they would know when they would come, so they can make their plans to come now, if we conclude to have 1, or 6, or 12, or whatever. If the chairman would set a time now, then in fact there is no misunderstanding about when that would occur, and those witnesses, all of whom are cross country, I am told, could make tentative plans to be here, unless the committee chooses not to have them.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, those that will come, we could have them Thursday, say, Thursday afternoon, if that would be agreeable.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Why not make it Friday to give them an opportunity, if we are going to
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman, some of those witnesses are
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. HOW is that?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Some of those witnesses are from the State of Arizona, and I have had some contact with them, and some of them are on retirement and cannot afford to come at their own expense. Others are working, practicing in their profession and jobs, and need some time. I would just like to point out to the committee that
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, I was hoping to finish here on Friday afternoon, but
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. We have 12 or 15 witnesses here, and they need some notice. Well, why don't we make them the last
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I mean Thursday afternoon.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not think that is realistic, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Would you want to take them Thursday afternoon?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think Senator DeConcini is making the point that that would probably be quite an imposition on them to be able to get here at that point. Perhaps we ought to take
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Want to make them Friday morning and
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Simpson. Senator SIMPSON. Well, Mr. Chairman, I do not know how long this exercise is going to go. The chairman has been very fair; he is going to be fair. He has not read the report. He is going to read the report and then he will deal openly with the members who are opposed to the Chief Justice nominee, as he has always done. 97 I see no need to, just for the exercise, you know, of the evening, to do that. He will be fair with us. These are witnesses who were all, I think, or many of them, examined in 1971, when we put the Chief Justice nominee through the hoops when he went to the Supreme Court, and here we go again. I would not want anyone to be disabused of this "mother lode" that we are digging, but that was done in 1971.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Will the Senator yield? Senator SIMPSON. Yes; I certainly will. Senator BIDEN. I want to make something clear. The Senator from Wyoming and I have a tendency on occasion—each of us have similarities. We like to engage in humor. The Senator is better at it than I am. We sometimes have rhetorical flights of fancy, both of us. We have each counseled one another on that as friends. I want to make it clear: This Senator from Delaware has not made up his mind. This is not, No. 1, a decision made by those who have concluded they are going to vote against the Chief Justice nominee. Second, the second point I would like to make, is that almost all of these witnesses are people who never were known prior to the last hearing, and third
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I think we can solve it without so much talk.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. All right.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will finish all witnesses Wednesday and Thursday, except Senator DeConcini says we need more time
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Perhaps, Mr. Chairman. I do not know.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. And we will take them Friday and get through by 1 o'clock Friday. Is that fair enough?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Mr. Chairman. Would the chairman yield? I thank him for that. I just want to point out to Senator Simpson that nobody is accusing the chairman here of being unfair. I agree with
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I am aware of that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. Senator Simpson. He is fair, he has been fair, and I think will be. I just wanted to go on record here that I do not think anybody is playing any games or digging
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will finish all witnesses, if we have to run late tomorrow night, and late the next night. We are going to finish up everything except these witnesses you are talking about, and we will not go longer than 1 o'clock Friday on them. Is that agreeable?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, no, it is not agreeable, we will not go longer than 1. I do not know, Mr. Chairman. The answer is none of
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, we will start sooner. I can start at 8 o'clock in the morning if
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I think that is fine. None of us want to hang around here
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, I am going to finish at 1 o'clock on Friday. Now, if you want to start at 7 or 8,1 would be ready to do it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Fine.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, let me just
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Metzenbaum. 98
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Just 1 second. There is not any member on this committee that I know of that wants to unduly prolong the hearing. I attest to that myself, and I do not know anybody else who has any inclination along that line. The chairman has worked very well with all of us. The ranking member has indicated he does not know how he is going to vote and I certainly have not indicated how I am going to vote, and I am not sure. This is the most important responsibility this committee has had this session. And so I would urge the chairman not to set arbitrary hours of 1 o'clock or 2 o'clock or 7 o'clock. We will work with you. Let's work cooperatively. Let's not work against deadlines.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, we have had a hearing now today. We have put it off the floor to accommodate you gentlemen.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU have been wonderful.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. And then tomorrow we will have it
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU will be great tomorrow.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. And we are going to start at 10 and go late tomorrow night. And the next day we will start it and go late. And that will finish it, all except these witnesses from Arizona. Now, out of respect for Senator DeConcini, I thought that would be time for them to get here.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We will work with you, Mr. Chairman, but let's not try to get into a battle with 1 o'clock, or something.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, I have got to finish here. I have got to finish
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, just as
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I planned to finish here Thursday night, but, out of respect for you with these witnesses from Arizona, we will go as late as necessary, till 1 o'clock on Friday, if it is necessary. I hope we will not have to go that line. We are now in recess until 10 a.m. tomorrow. [Whereupon, at 7:45 p.m., the committee was recessed, to reconvene at 10 o'clock a.m., July 30, 1986.] j Are there any Democratic staff members here? You might tell your Senators. Is Senator Biden's staff member here, the ranking minority member? If so, I would like for you to call him. [Pause.] The CHAIRMAN. It looks like we are going to have to take a recess for 5 minutes. [Brief recess.] The CHAIRMAN. Judge Rehnquist, I would remind you that you are still under oath, Mr. Justice. TESTIMONY OF HON. WILLIAM H. REHNQUIST, NOMINEE, TO BE CHIEF JUSTICE OF THE UNITED STATES
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We are going to alternate 20 minutes each. I will take 20 minutes, Senator Biden 20 minutes; then we will pass on to other members 20 minutes each. We will turn the red light on at 19 minutes so they see they have 1 more minute to wind up. Justice Rehnquist, since the announcement of your nomination to be Chief Justice of the United States, there has been much talk about the opportunity you will have to lead the Court in a new conservative direction. Would you please tell the committee 130 Several of the cases this morning that were mentioned—Brown v. The Board of Education, the Nixon tapes case—were those kind of rare great cases where I think the Court develops a consensus that the opinion ought to be written by the Chief Justice, and there is a real institutional feeling that it ought to be unanimous, if possible. You take another case like the steel seizure case, which was an equally important case, and there the Chief Justice was in a minority of three. The only way for him to have led the Court there would have been to change his own vote and make it 7 to 2. I do not think that is leadership to simply say that since you are outvoted you will change your mind. I think the Chief Justice does have a couple prerogatives, again, that have been mentioned: the authority to lead the conference discussion and the authority to assign cases. And I think both of these, properly exercised, can lead to a smoothly functioning Court. But the idea that the power to lead the conference discussion to start off and be the first one to discuss means that the Chief Justice can pull the wool over other people's eyes by his discussion and make them think that green is blue, my 15 years on the Court convinces me that is not the case. The same with the assignment power. The Chief Justice, by properly exercising the assignment power, can pick out the strengths and weaknesses of his colleagues, play on the strengths, avoid the weaknesses, and again, work toward a smoothly functioning Court. But if the Chief Justice assigns the case to someone who feels very much the way he does about it, but not like the majority of the Court feels about it, the person to whom the case is assigned is not going to be able to get a Court opinion. So I think the Chief Justice does have a leadership role, Mr. Chairman, but I do not think it has much to do with the philosophical direction of the Court. The CHAIRMAN. Justice Rehnquist, we will again hear allegations today that you harassed voters in the polling place in the 1960's. This allegation has already been covered during your hearing in 1971 for Associate Justice. At that time, you responded to questions concerninq these allegations and submitted a lengthy written rebuttal. However, a few individuals have now come forward, some 20 plus years later, with the same information. There is nothing new that I am aware of regarding this matter. I reviewed the FBI report and found absolutely no new information to support these charges. Justice Rehnquist, how do you respond to these allegations?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. In the absence of any more careful description of the allegations, I think I would say, Mr. Chairman, that I have reread very carefully the statement I made to the committee in 1971 and have absolutely no reason to doubt its correctness now.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, in the past several decades, the caseload of the Supreme Court has grown rapidly as our laws have become far more numerous and complex. In an effort to reduce the pressures on the Supreme Court, an intercircuit panel was proposed to assist the Court in deciding cases which involve a conflict among the judicial circuits. 131 The Judiciary Committee on June 12, 1986, approved legislation establishing such a panel on a trial basis. As you know, Chief Justice Burger has been a strong advocate of this panel. Would you please give the committee your thoughts on the current caseload of the Court and the need for an intercircuit panel?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would be happy to, Mr. Chairman. I think we do need an intercircuit panel of some sort, and I so stated publicly, as has the Chief Justice. Different reasons have been assigned for it. There are nuances of differences, as I understand it, as to how the panel would be made up. But I think the basic problem is this: That for the last 50 years, the Supreme Court has never heard more than about 150 or 160 cases a year on the merits, as opposed to just denying certiorari. And I do not think any careful student of the Court thinks that the Court ought to try to hear more than 150 cases a year. So that in this country right now, we have a nationwide decisionmaking capacity for questions involving Federal statutory law and constitutional law of 150 cases a year. Now, that just is not a large enough nationwide decisionmaking capacity, in my view, to accommodate the need to resolve conflicts among the circuits on statutory questions and to decide Jebatable, novel, constitutional questions. Again, 50 years ago, the Court had roughly 800 petitions for certiorari which gives you some rough idea of how many cases the Federal courts of appeals and the State supreme courts were turning out. Today, we have somewhere around 4,500 petitions for certiorari, an increase of almost sixfold, and yet the nationwide decisionmaking capacity is exactly what it was 50 years ago. I think we very badly need to increase that nationwide decisionmaking capacity by creating some version of the intercircuit tribunal to which your question refers, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, in a dissenting opinion in Community Communications Company v. City of Boulder, a 1982 case, you discussed the Federal preemption of the State law in the context of an antitrust challenge to certain actions by a municipal government. Would you please tell the committee what in a general sense you perceive as the proper relationship between Federal and State law?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Mr. Chairman, I think Congress is probably the ultimate decider as to what the proper relationship between State and Federal law is in most situations. Our Court has adopted various preemption doctrines which allow it to interpret whether or not in a given set of circumstances Federal law, which does not say so in so many words, nonetheless preempts State law. And I joined in a number of opinions to that effect, and it strikes me as a sound exposition of the doctrine. But how much is going to be Federal law in any area in which the Congress power reaches and how much is going to be State law, really in the last analysis, depends upon Congress.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, in 1976, an article which you authored entitled, "The Notion of a Living Co 132 dressed the issue of how the Constitution is to be interpreted by judges. In recent years, the debate on this subject has increased, and a number of questions have been raised, such as: Are the words of the Constitution to be narrowly construed? What weight is to be given to the intent of the framers of the Constitution? Should the instrument be interpreted to conform with or adjust to conventional societal behavior or attitudes, and so forth. Of course, a judge's philosophy on this type of issue obviously has a direct and substantial bearing on his or her decision. Justice Rehnquist, would you please briefly summarize for the committee your views concerning constitutional interpretation by the judiciary?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Mr. Chairman, I will certainly do the best I can within the limits of the constraints which I feel are on me. As a sitting Justice of the Court, I may certainly refer to cases and perhaps try to describe them from memory, and I feel I can also perhaps, where I am informed, speak in fairly general terms. But I could not, of course, express any view on a question that might come before the Court or I could not attempt to say, well, you know, this case that was decided in 1980 will soon be interpreted, or maybe later be interpreted to mean such and such. This may seem an overly simplistic answer to your question, but it is the kind of question that has to be answered either very shortly or ad infinitum because there are so many nuances. I think a judge has the obligation, when sitting in a Federal system like ours under a written Constitution, to attempt to use every bit of information and every method he can in order to find out what the Constitution means. Certainly a large part of this is the written word that the framers used, not the undisclosed intentions of the framers, but the words that they used. Other useful things are the previous decisions of the Court which have always represented a decision by nine people—or at least nine since some time in the 1830's—who have taken the same oath of office that the then-sitting Justice had, and who presumably have done their best to figure out what it means. And I think that is as good a short answer as I can give you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, a fundamental principle of American judicial review is respect for precedent, for the doctrine of stare decisis. This doctrine promotes certainty in the administration of the law, and yet at least 182 times in its history, the Supreme Court has overruled one or more of its precedents. More than half of these overruling opinions have been issued since 1950. Actually, 96 since 1950. Justice Rehnquist, would you tell the committee what factors you believe attribute to this increase in overruling previous opinions?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I will certainly venture my opinion, Mr. Chairman, although I have not done the research that I would like to do in order to make a more careful answer. I think the biggest thing about the caseload of the Supreme Court in 1950 and the caseload today is the vast increase in the number of decisions involving constitutional questions. The principle followed by the Court following Justice Brandeis' opinion, I be- 133 lieve, in either the Ashwander or the Burnett case, is that stare decisis is a very fine rule of law, and it should virtually be unanimously adhered to when you are talking about construing a statute. But when you are talking about construing a provision of the Constitution where Congress cannot come back and change it if it feels the Court has made a mistake, then there is more latitude for overruling precedent. I think that probably the reason there have been so many more overrulings since 1950 is that a much larger percentage of the Court's docket has involved constitutional cases.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, the fourth amendment exclusionary rule was judicially created to prohibit admission of illegally seized evidence. However, the Supreme Court stated in Stone v. Powell, a 1976 decision, that the fourth amendment has never been interpreted to prescribe the introduction of illegal seized evidence in all proceedings or against all persons. Recent decisions such as United States v. Leon and Massachusetts v. Shepard have recognized a good-faith exception as applied to search warrants. Would you please briefly discuss the Court's recent approach toward narrowing the application of the fourth amendment exclusionary rule?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, Mr. Chairman, I am on somewhat difficult grounds, because I think I can describe the holdings of the cases which you describe, and of course, I will be describing them from memory, and I should state very emphatically that it is the opinion of the Court in those cases that speaks authoritatively. My synopsis from memory may well have some errors in it. But I also realize that you cannot at an oral hearing such as this simply point to a volume of the U.S. Reports and tell someone to go look at it. So, in Stone against Powell, the Court held that
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Speak into your mike.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Surely. I am sorry, Mr. Chairman. When a fourth amendment claim had been fully decided against a criminal defendant in the State court system, that the same claim could not be renewed on Federal habeas corpus in an effort to have the State court decision set aside because of a violation of the exclusionary rule. United States against Leon and Massachusetts against Shepard held—and I think it was only in the case of a warrant—that if there was a good-faith mistake on the part of the officer seeking the warrant and his conduct was objectively reasonable, although it turned out it was mistaken, that the exclusionary rule would not be applied in those cases.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, division within the Supreme Court is increasing. Between 1801 and 1900, the average number of cases per term decided by a bare majority was one. The trend during this century has been one where the number of 5-to-4 decisions is ever increasing. In fact, in the just completed 1985 term, 37 cases were decided in whole or in part by five-to-four votes. Justice Rehnquist, would you tell the committee what, in your opinion, has attributed to the increase in the bare majority decisions? 134
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Mr. Chairman, again, I will certainly venture an answer without having had the opportunity to look into it the way I might like to if I were to give a more comprehensive answer. The staple of the Court's work in the 19th century was basically common law. Most of the cases were in the Federal system by reason of diversity of citizenship, and the principles were what were called general principles of common law. There were very few statutes involved. That was in the days when being learned in the law had a very definite connotation. When you said a judge was learned in the law, it meant that he knew Story's Commentaries, and various other commentaries which were largely based on the common law. And so there was a good deal of unanimity of opinion in those days. There was not the sort of discussion, debate, and controversy that has come in the 20th century with difficult questions of statutory interpretation and, again, the increasing constitutional docket of the Court, where we deal often with fairly broad, general phrases, disagreements are natural as to their meaning, and as a result, there are going to be divisions that there were not when you were just dealing with the general common law.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Justice Rehnquist, at present, Federal judges serve during good behavior, which, in effect, is life tenure. Federal judges decide when they should retire and when they are able to continue to serve. Congress, in the Judicial Conduct and Disability Act of 1980, provided some limited ability for the judicial councils of the circuits to act with respect to judges who are no longer able to serve adequately, whether because of age, disability, or the like. The Supreme Court is not covered by this act. Justice Rehnquist, do you feel the Supreme Court should be covered by the Judicial Conduct and Disability Act? And would you give the committee your opinion on the need to establish a constitutional amendment on mandatory retirement age for judges and justices?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The first part of your question, Mr. Chairman, I think was whether the Supreme Court should be covered by the Judicial Conduct Act. There was a good deal of feeling, I think, among the lower court Federal judges that they had some reservations, as you might imagine, about the Judicial Conduct Act, though I think many of them agree that something of that sort may be necessary. But I think with all respect to those judges, that if you are talking about even a judicial council determining that one of nine members of the Supreme Court is unable to serve and avoiding the impeachment requirement of the Constitution, that is something I would want to take a very, very long look at. And I think the way to do that would be to see how the Judicial Conduct Act works when applied to the judges to whom it is now applicable. I think one should take a couple of very close looks before translating that to the Supreme Court.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. For the information of the members who were not here when I made the announcement, we are allowing the members 20 minutes. The red light will come on after 19 minutes, so they will have 1 minute to wind up. The distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. 135 Again, welcome, Mr. Justice, and it should be noted lest any of us lose our perspective here that you are on the Supreme Court and that you will be on the Supreme Court regardless of what happens in this hearing. Mr. Justice, what I would like to do if I may is go back and cover a little ground that has already been covered by the chairman and maybe in a little bit more detail if I may in this first round. Yesterday former Federal judge and former Attorney General Griffin Bell, in response to questions regarding whether or not there was a need for unanimity in certain occasions in Court decisions said, and I quote at page 96 of the transcript, "It would have meant"—referring to the Nixon tapes case—"It would have meant that the people often have doubt as to whether a Supreme Court decision is the law. And if it is a close decision, 5 to 4, or something like we have been getting in recent years, what we call the 'plurality opinion', people are not inclined to follow these decisions, and they do not know for sure what the law is." Skipping down, still quoting, "The Brown decision was hard enough to carry out, and if it had been a divided Court, it would probably not have been carried out." Continuing to quote, skipping a paragraph: "There are some of these cutting edge issues that face society." Further on in Judge Bell's testimony, in response to a question, Do you think that Justice Douglas would have been a good Chief Justice at the time he was on the bench? the answer was that he would not have been a good Chief Justice. "That takes nothing away from his ability." End of quote. Now, what I would like to know is whether or not you agree with Judge Bell's statements regarding how difficult the Brown decision would have been to carry out had there not been absolute unanimity, and whether or not you think Justice Douglas would have made a good Chief Justice.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS to the first question, Senator Biden, certainly at the time I was a law clerk when Brown was first argued, there was talk about the South possibly shutting down the public school system. I would defer to Judge Bell's judgment, even if it did not coincide with mine, because he is from Georgia, and that is where the decision was going to be operative. And then I would certainly add, yes, unanimity was certainly essential. And as to Justice Douglas and the Chief Justiceship, I think I remember Judge Bell yesterday saying he did not think he would ever have accepted. And I think that is where I would rather leave it. Really, I think if he had accepted it—he was a remarkably able person—if he had accepted it, I think he would have put his hand to it and done a good job. But I just do not think he ever would have accepted it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Let us talk about the Brown case a minute. In his book, "Simple Justice," Richard Kluger describes the very careful and deliberate process by which Chief Justice Warren worked to achieve a unanimous vote in the Brown decision. Do you agree with me that by reaching and engaging in that process, Chief Justice Warren was serving a critical function? 136
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I am not sure I have read the book in full that you mention. I have read a recent biography of Chief Justice Warren which certainly makes the same point, and I do agree.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I would like to read a passage from the book, if I may, for you, where the author says, "The new Chief Justice was determined to create a unanimous ruling, but he knew Reed was very troubled," Justice Reed. The Chief lunched with Reed 20 times between the first conference the Court held on the Brown case and early May. And finally, the Chief went to see him, and his former clerk, George Mickum, M-i-c-k-u-m, Mickum, I believe that is the correct pronunciation, who was on hand, summarized the meetings as follows, quoting the clerk: He said, "Stan, you are all by yourself in this now," Mickum recalls. "You have got to decide whether it is really the best thing for the country." He empathized with Justice Reed's concerns, but he was quite firm on the Court's need for unanimity on a matter of this sensitivity. Mickum then discussed his conversation with Reed after the Chief left. "I think he was really troubled by the possible consequences of his position," Mickum added. Because he was a Southerner, even a lone dissent by him would give a lot of people a lot of grist for making trouble. For the good of the country, he put aside his own basis for dissent. My question to you, Mr. Justice, is whether you would have done what the Chief did, generally, in the case, and specifically, whether you would have gone to Reed and made those arguments.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The question is very difficult to answer, Senator. Certainly, from the point of view of hindsight, realizing the importance of Brown, the importance of unanimity, one would like to say in answer to the question: "Yes, of course I would." And I think I can probably answer the same way, that if I had seen the thing, seen the case the way the Chief Justice did, and the need for unanimity, I certainly would have tried to persuade a last dissenting colleague that it would be better for the country to make it unanimous.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Did you see the case as the Chief saw it at the time? You were there.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was not—I think
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Not at the time of the decision, but you were there
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was there when it was argued for Chief Justice Vinson.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Correct.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. YOU are asking me what I thought of it as a law clerk?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes. At the time, did you see it as the Chief saw it, with regard to the merits of the case; and second, with regard to what the Chief, the later Chief, what the Chief later did on the second term that it was argued in
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not know that law clerks think in terms of the need for unanimity, but I do not think I saw it as a law clerk as Chief Justice Warren later came to see it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. HOW did you see it as a law clerk at the time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I thought that—putting myself back in 1952 as best I can—I thought that Plessey against Ferguson was wrong 137 in saying that when you segregate races by law you are not depriving anybody of equal protection. I also thought that Plessey against Ferguson had been on the books for 69 years, that the same Congress that promulgated the 14th amendment had required segregated schools in the District. I saw factors on both sides, I think.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. YOU graduated No. 1 in your class from Stanford Law School. You were picked as one of the most outstanding law graduates in America to clerk at the Court. And you obviously were not, although you were not a sitting Justice, you were a very, as you are now, a very, very bright person with as significant a legal background as you could have had at the moment. And you are unable to give me a more definitive answer as to how you felt at the time? Did you believe it was the wrong decision at the time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Did I think that Plessey was wrong?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO. DO you think that the decision ultimately reached in Brown was the incorrect decision?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. When Brown came down?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. When Brown came down.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not think I did, because when the Court went on record saying that, the stare decisis problem was gone.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Isn't that somewhat a little bit of sophistry—well, let us—at the time you were writing for Jackson, did you believe that Plessey should have been struck down?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I had not come to rest on that, Senator. I thought about it, and perhaps if I had stayed, if the case had been decided in the term I was there and I had seen circulating drafts, I would have come to a firmer conclusion than I now recall coming to.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Justice, you know—you do not remember back as to that time, whether you had an opinion as to which way you would have ruled if you had been a judge? I mean, you are a clerk. I know as a young lawyer, just advising a senior partner, I had pretty firm views. I was not sure I was right or wrong, but I had pretty firm views about things that I thought that I had delved into deeply. Obviously, the senior partner knew a great deal more about the case than I, but after doing hundreds of hours of research, as I am sure you did, hundreds of hours of research on this, I arrived at a conclusion in my mind. It maybe has changed in subsequent times, but at the moment, this was a question of phenomenal moment for the country, and it was realized as being such even during the time Vinson was alive, in the first term it was argued. And are you telling me that you do not recall what your view was, nor did you form a view, as to whether or not the plaintiffs in Brown were correct in the case as argued before the Court when you were a clerk, sitting there at the same time the Court heard the decision?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have told you everything I recall about my views then, Senator.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Would you tell me once more, then. I must have misunderstood them.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; that I thought Plessey had been wrongly decided at the time, that it was not a good interpretation of the 138 equal protection clause to say that when you segregate people by race, there is no denial of equal protection. But Plessey had been on the books for 60 years; Congress had never acted, and the same Congress that had promulgated the 14th amendment had required segregation in the District schools.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Therefore, you—is it reasonable—let us try to finish that thought. If you got that far, then it seems your conclusion must have been that it was the Congress' business, not the Court's, to change Plessey?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I do not think I reached a conclusion. Law clerks do not have to vote.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, but they surely think.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, they do.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I'll be darned. OK. Let me move on. If you had been Justice Reed, with the obvious doubts which I am sure were known the first time the case was argued, clearly the second time the case was argued, if you had been Reed, holding the views that he did, would you have changed your position to make it a unanimous decision?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I just do not think I can put myself in the position of Justice Reed. I think you can certainly say that he performed a service in doing what he did, and yet I do not think you can say that every time, even in a very important case, the Court stands 8 to 1, that you nonetheless ought to alter your view.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO; I am not suggesting that. I am just talking about that specific case. I mean, it is not like, Mr. Justice, I am picking a case that you are not familiar with, and were not familiar with at the moment it was being discussed. I know, for example, I have four former Supreme Court clerks who helped me prepare for these hearings. And all four of them remember with great pride and incredible clarity those decisions of moment that they participated in for their Justice at the moment. It is something a little bit like saying, "I was in the campaign of 1952 with Ike when he made the speech." It is the nature—those are things you do not often forget. You were one of nine young women and men chosen in all of America to sit in what we lawyers know is the single most prestigious job you can be offered coming out of law school. And that is why it kind of surprises me that you did not have a firmer view of where the thing was or was going. That is
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was 1 of 18 men chosen at that time.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, 18, not 9—I am sorry.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And I might add, Senator, that things came to a stop so far as working on any drafts, I believe, the year I was there after the oral argument. It was not the kind of a situation where you would have followed the case through, seen the drafts circulate, see the opinion finally come down.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. It was also not one of those cases anybody felt was going to go away, was it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, no, it was not.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO. Let us move on for a moment, if I may. Let us take the flipside of this now, the Nixon tape case, which has been mentioned by Judge Bell and by me and by the chairman and others. 139 In the Nixon tapes case you had, in a strange sense, the reverse. You had a Chief Justice who had doubts about the wisdom of the decision as finally decided—the light is on.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. One more minute.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, why don't I reserve that. I will come back to Nixon later. He is back to us, so we might as well go back to him later. He waited long enough. I can wait. [Laughter.] Thank you very much, Mr. Justice. I will do it in my next round.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Justice Rehnquist, let's see if we can forget about all these other people in the room and just talk to each other as one lone dissenter to another, I have noticed the proliferation of dissenting opinions in the Court in recent years. Many very important cases that addressed crucial issues have been decided by coalitions of one sort or another in the Court. One side effect of these shifting coalitions has been a proliferation of individual views, which make it a little more difficult for Court watchers to analyze what is in fact the true judgment of the Court. Do you think that this spate of individual opinions impedes the Court in carrying out its constitutional responsibilities?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. TO a certain extent, Senator, I think I would have to say yes, although I am sure I have been a contributor on occasion, as have all nine of us, to what you refer to as something of a proliferation of individual opinions. One of the previous witnesses—it may have been Mr. Lane— made the statement that when the Court comes up with a plurality opinion, or with a Court opinion in several concurring opinions, it just is not clear to judges in lower courts and perhaps to lawyers exactly what the law is. And that cannot be a plus. There is a great tendency to feel—and I felt it myself, and I have followed the tendency myself, although I must say I try to restrain it lately—that so-and-so who is writing the Court opinion has not said it quite the way I think it should be said, and therefore, I will write this little concurrence; it will not harm anybody. Well, in fact, it does tend to muddy the message a little bit. So I agree with you it is regrettable.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Those are temptations that are not exclusively present in the Supreme Court. We not only have the temptations here, but we succumb to them a good many times. Is there anything that a Chief Justice can do in order to temper this problem?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, the Chief Justice can cajole or urge, as Chief Justice Warren did Justice Reed, but I have a feeling that when you get to the ordinary kind of case that it does not work very often. I think one thing the Chief Justice can surely do is lead by example. That is, if the Chief Justice makes it a practice of not writing separately, except when he feels it is absolutely necessary, I think that then the Chief might have some weight in speaking to someone else and saying, "Look, do you really need to say this?" But if the person spoken to has the feeling it is the pot calling the kettle black, they will not get anywhere. 140
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. DO you think that is the basis of the questions that have been raised about your nomination? I believe it is Joe Rauh who has awarded you the title of "the all-time champion lone dissenter" He has implied that that record will make your leadership less effective.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And you would like me to comment on it? [Laughter.]
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What do we tell him?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I will be happy to comment, Senator. It is rather easy to put together statistics showing A, B, C, or D if you choose the right year. I think certainly the early days of my tenure on the Court, I filed, quote, "lone," closed quote, dissents probably more often than any of my colleagues except Justice Douglas. I think in the past 5 years, the statistics indicate that my colleague Justice Stevens has filed lone dissents more than I have. And I think that is an interesting example, because no one would contend that Justice Stevens is on either the right or the left wing of the Court; he is regarded as a centrist. And yet he has filed more lone dissents than anyone else. Sometimes it is not that you are way over on one side, but you may just disagree with the way the Court has reasoned through a rather fine point. So I think if one were either in lone dissent or in dissent with two or three other people very, very frequently, it probably would have an effect on how you are able to perform as Chief Justice. But the statistics I have just referred to, it seems to me, indicate that I should not have any great problem. That does not mean there will not be an occasional lone dissent.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. AS Senator Biden has observed, you are already a member of the Supreme Court. Thus, are not discussing whether you should join the Court. We are really just here to talk about what chair you will sit in. The chair to which you have been nominated, of course, is one which is the seat of leadership of the entire judicial branch of Government. Chief Justice Burger has highlighted this aspect of the Chief Justice's role during his tenure. He has devoted a lot of energy and a lot of time to the administration of justice. As result, the Judicial Conference, of which the Chief Justice is the chairman, is stronger. It is more active on issues of concern to the whole Federal bench. The Federal Judicial Center has enhanced the judicial branch's capacity for research and training. Chief Justice Burger in his statements on judicial compensation, on the litigation explosion, on competency of courtroom advocacy, just as a few examples, has articulated the concerns of Federal judges and of a great many State and local court judges. How do you view this particular aspect of the role of the Chief Justice? What thoughts can you share with us as to how you would approach the administrative and leadership role?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I view it as a very important aspect of the role of the Chief Justice, Senator. Chief Justice Burger will be a hard act to follow in that respect, because certainly, no Chief Justice has ever devoted the attention to the sort of things you have just described as he has. But I do not think it is something that ought to be regarded as kind of an idiosyncracy of his, because I think that the lower Federal court judges, State court judges, have 141 really felt that he was speaking for them on many occasions, calling problems of the profession or of the Judiciary to the attention of Congress or of the profession in the way a highly visible spokesman can, but in a way that a multitude of less visible spokesmen cannot. I think the Chief Justice is going to have to keep on in that role, and I think it is a very important one.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. IS it your intention to continue that kind of active leadership in this field?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; as I say, the Chiefs act is a hard one to follow, but I would certainly do my best if the Senate confirms me.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In your judicial career, you have been interested in the subject of federalism and the division of powers between the national government and the State government. There is a new development in federalism about which I would like you to comment. It has become increasingly common for a State court which is considering a case that affects individual rights, to base its decisions on the State's constitution, even though the pertinent provision of the State constitution may exactly parallel a provision in the Federal Constitution. The search and seizure cases provide a good example. It appears to some legal commentators that the State courts are getting more active in the areas in which the Supreme Court has cut back on the scope of the protections that it previously found to exist in the Federal Constitution. Have you observed this development? What thoughts do you have about it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have, Senator Mathias, and I think that is just the way the system should work. The Federal Constitution certainly lays down one rule for all 50 States, and if some States want a more stringent prohibition against searches and seizures than that provided by the fourth amendment, it just makes sense that they ought to have it. If some States are content with the Federal provision, which everybody has to live up to, it seems to me that makes sense for them to have that. I think it is a very healthy development.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. SO you would view the protections in the Federal Constitution as the floor and not as the ceiling?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, absolutely.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS.You do not feel that that is a challenge to the Court's preeminence as the final arbiter of the law of the land?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO; I do not think the Court is necessarily the final arbiter of the law of the land. It is the final arbiter of the U.S. Constitution and of the meaning of Federal statutes and treaties. But we still live in a somewhat pluralistic society where the States' highest courts are the final arbiters of the meaning of their State constitutions. That is just as it ought to be, I think.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What about the charges that the Supreme Court has become anti-Federalist in certain instances. There are a number of cases in which the Court has upheld actions by State officials which the State courts had struck down on fourth amendment grounds or on some parallel State constitution grounds. What deference should the Supreme Court give to decisions of the State courts interpreting Federal constitutional provisions?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Speaking generally, Senator, and of course, that is the only way I can speak in response to a question like that, because
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. We are speaking in very general terms.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; the same type of deference as the Supreme Court gives to decisions of lower Federal courts interpreting the U.S. Constitution. The decision is obviously entitled to weight, but if it does not fully square with precedents from the Supreme Court then it probably, if brought up, should be overturned.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What about State courts interpreting State constitutions that are at odds with Federal precedents?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That was the question I believe you brought up a moment ago, and that is every bit their privilege. But it is when State courts say this conviction should be reversed not because it offends the State constitution, but because the search offended the fourth amendment; that, of course, is a Federal question, and the final authority on Federal questions like that is the Supreme Court of the United States.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. NOW looking at another development in the court system, since you and I began the practice of law there have been a lot of changes. Some of them are quantitative. In those days, we had just a few dozen appellate judges in the country. Today there are hundreds. The caseload numbers have also climbed substantially. These quantitative changes have probably resulted in some qualitative changes as well. Some would say that Federal judges today perform a job that is more bureaucratic than it has ever been. With the flood of litigation, judges are at least proportionately more managers than they are decisionmakers. What is the future of the Federal courts? Do you see more litigation and larger caseloads? Will we respond with the appointment of still more judges, and create a larger judicial bureaucracy? If so, can we continue to maintain the concept of a single Supreme Court with nine individuals ultimately resolving issues that work there way to the top of the pyramid?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is kind of a tall order. Let me go immediately to the multiplication of Federal judges. This is a concern which has been voiced by me in the past, by Judge Rubin of the fifth circuit, by Judge Higginbotham of the fifth circuit. It is a very real concern to anyone interested in the Federal judiciary. The Federal judiciary obviously does not pay comparably to what a lawyer with a substantial practice in a good-sized city would make. And so the attractiveness of the job and the ability of the Federal courts to get first-rate lawyers has got to depend on the—prestige sounds somewhat like it is a social thing—but the significance of a Federal judgeship and the sort of work that Federal judges do, how interesting is it. To the extent that the Federal judge is no longer trying cases, deciding motions and that sort of thing, but simply reviewing what subordinates do, I think the job is going to be less attractive. There will always be plenty of people lined up for Federal judgeships, but the question is are they the people that you want to have Federal judgeships. 143
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Should we be thinking about structural changes in the court system?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think we should be thinking very definitely about a national Court of Appeals or an intercircuit tribunal, as I indicated to the chairman when I answered his question. I think some more thinking is going to have to be done, and to me, this is the area in which the next Chief Justice could devote some attention not with the idea that I am bringing in some ideas that I know exactly what ought to be done, but let us get some people to sit down and look and think about what is going to be done.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, the interaction between the next Chief Justice and this committee will be very important.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I should think it would be extraordinarily important.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Although I will not be here, I invite you, on behalf of my colleagues, to keep in close touch. Justice Frankfurter once wrote: The judgments of this Court are collective judgments. Such judgments presuppose ample time and freshness of mind for private study and reflection in preparation for discussion at conference. Without adequate study there cannot be adequate reflection; without adequate reflection, there cannot be adequate discussion; without adequate discussion, there cannot be that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions. It is, therefore, imperative that the docket of the Court be kept down so that its volume does not preclude wise adjudication. That sounds like an almost Utopian formulation for the Court. However, during the preceding term, the Court issued 146 signed opinions after reviewing a docket bulging with 5,158 cases. These figures seem overwhelming to an outsider. Does that volume of cases preclude wise adjudication? I know there is some dispute on this. Chief Justice Burger contends very strongly that it does, that the Court is greatly overburdened, but some other members of the Court do not seem to have the same view. I wondered what your thoughts were.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not agree with the Chief Justice on that point. I think that 20 or 25 years ago all the courts, State courts and Federal courts simply worked at a more leisurely pace, and it may very well be there was a little more time for ripening of ideas and that sort of thing. But I just do not think with the kind of litigation explosion that we have had in the last 20 or 25 years courts should or really can aspire to go back to that. I think they have to work a little bit faster and quite a bit harder up to the point where you get to a certain point where you become kind of a bureaucracy, and you begin sacrificing all of the contemplative aspects. That is not good either. But I think the 150 cases that we have turned out quite regularly over a period of 10 or 15 years is just about where we should be at. The certiorari cases, the number grows every year. I think you cited the figure 5,100 this past year. They take time and the more of them there are the more time they take, but even 5,100 of them do not take a substantial minor fraction of the Court's time to dispose of, I do not think. 144 I think it would be on the order of somewhere 20, 25 percent of the Court's time spent disposing of certioraris, and I am just guessing, because I am guessing on the figures in my own chambers, and I really do not have any basis for saying how much the other chambers put in on certiorari.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you very much, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much, Mr. Chairman. Welcome, Mr. Rehnquist. I would like to direct your attention to the issues that were raised after the end of our hearing back at the earlier consideration for your nomination to go on the Supreme Court, and this is related to the whole question of voter intimidation in Phoenix. You remember these allegations came up after the conclusion of our hearings. Senator Bayh, Senator Hart, myself inquired of you about your own conduct and your activities on election day in the early 1960's. At that time, Chairman Eastland chose not to reopen the hearings. We did receive responses to our questions but we never did have an opportunity to go through the various allegations and charges during the course of that hearing or any direct opportunity to inquire of you about those particular allegations and charges. And it is my understanding, and these are quotes that are put in chronological order that are taken from the responses which you gave to us in the written questions that are included in the record.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator Kennedy, I have a copy with me, if I might get that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I do not think you will probably disagree with my summary. If you do, maybe you want to go back and look at it. I would like to just try to put the line of questions into some kind of perspective.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Excuse me just a minute. I might say this. If you wish to refer to any notes or books or anything before answering, you have a right to do that.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Mr. Chairman.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In 1971, you made the following statements about your involvement in election day activities: In 1958 I became involved in the election day program on quite short notice. Spent all the day at Republican county headquarters at Phoenix. In 1960 on election day, I believe that I spent most of the day in county headquarters. In that year, however, we had enough other lawyers available in county headquarters so that I probably spent some of the day going to precincts where a dispute had risen and attempted to resolve it. With respect to 1962 on election day, my recollection is that I spent most of the day in Republican county headquarters; however, I think that on several occasions in 1962 just as in 1960 I went to precincts where disputes had arisen in an effort to resolve them. With respect to 1964, my recollection is that on election day during this particular election I spent all of my time in county headquarters. In none of these years did I personally engage in challenging the qualifications of any voters. I have not, either in the general election of 1964 or in any other election, at Bethune precinct or in any other precinct, either myself, harassed or intimidated voters or encouraged or approved of harassment or intimidation of voters by other persons. I believe as part of that record you actually signed an affidavit which says the following: 145 I have read the affidavits of Gordon Harris and Robert Tate, both notarized in Maricopa County. So far as these affidavits pertain to me, they are false. I have not either in the general election of 1964 or in any other election at Bethune precinct or in any other precinct either myself harassed or intimidated voters or encouraged or approved the harassment or intimidation of voters by other periods. Signed William Rehnquist. November 17, 1971. Do those statements refresh your recollection? Do you understand those to be correct statements?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot recollect them. Were you reading from the document?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If that is from what I said in 1971 I think they are correct. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Several witnesses have come forward and made statements about your activity as a leader in the Republican ballot security program in Phoenix in Arizona in the early 1960's. We will hear, as I understand it—at least it has been requested we hear from Mr. Charlie Pine—who describes your activities at Bethune precinct in 1962 or 1964 as follows: I saw him there and I saw him approach at least one voter, if my memory is correct, two. He asked them, he said, 'Pardon me. Are you a qualified voter,' to this black gentleman. The man said, 'Yes.' And he said, 'Do you have any credentials to indicate that you are?' The man said, 'No.' And he said, 'Well, then perhaps there is a question of whether or not you are qualified.' And the man instead of standing in line, if he had advanced, by that time, he got to the voting table he would have found his name on the voting list, but he turned on his heels and left the voting precinct. I felt that the whole purpose of that was to discourage blacks from voting." Do you know Mr. Pine? Charlie Pine.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe so, Senator. It has been a long time, some 20 years ago, but the name does not certainly ring a bell.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you know any reason why he might make that statement?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Since I do not know him, I certainly do not know any reason why he would make that statement.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Quincy Hopper has stated that he was at the Bethune school on election day 1964 and that you were there at the school having voters read from the Constitution to test for literacy. Do you know a Mr. Quincy Hopper?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you know any reason why Quincy Hopper would make that statement?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Rev. Benjamin Brooks who is the pastor of the South Minister Presbytrian Church has stated that he is familiar with you. He saw you at the Julian precinct where Pastor Brooks was an inspector on election day, the year that Paul Fannin and Phil Morrison were running for Arizona Governor, and Reverend Brooks stated that on that day you challenged black, elderly working class voters for literacy by having them read the Constitution out loud. 146 Do you know Reverend Brooks?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe so, Senator. No. Does he say the year Bob Morrison was running against Paul Fannin?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, that would have been 1958, I think, which would be 28 years ago. No, I do not really think I do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Dr. Sidney Smith, who was a psychology professor at Arizona State University from 1947 to 1964 stated that he served as a poll watcher in the early 1960's. Dr. Smith states that on election day in 1960 or 1962 as a poll watcher at Southwestern Phoenix poll he saw you arrive with two or three other men. He says he recognized you from political functions and was positive of his identification. Dr. Smith states that you approached a group of voters holding a card in your hand and said, "You cannot read, can you? You do not belong here." Dr. Smith says the voters were intimidated by your actions. Do you know a Dr. Smith?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I do, no.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. James Brosnahan, a prominent San Francisco attorney, former assistant U.S. attorney in Phoenix stated that on election day 1962 he received complaints of voter harassment at polling places. The complaints were that Republican challengers were challenging voters on the grounds that they could not read. He went to a precinct with an FBI agent. You were sitting at a table where the voter challenger sits. A number of the people complained to Mr. Brosnahan that you had been challenging voters. Do you know Mr. Brosnahan?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Did you engage in any of these activities, Mr. Rehnquist?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Would you read me again what Mr. Brosnahan says that I did.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. He said he went to a precinct with an FBI agent and you were there sitting at a table where the voter challenger sits, and a number of people complained to Brosnahan that you had been challenging voters.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not think that is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, are any of the other statements that I just read correct.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not believe they are.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would you not remember something like that if it had happened?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would think I would, yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Are all these witnesses wrong?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, I gave my best recollection in 1971. I reviewed that statement, and that stands as the best of my knowledge. So I suppose if they say I did something that I have said I did not do, I would have to say, yes, they are wrong.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Why would the witnesses, do you think, make these statements, all of them make these statement relatively similar in nature about your activity on election day? What is their motivation, do you think? 147
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Really do not know.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you think they are all mistaken or what?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think they are mistaken. I just cannot offer any further explanation.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Whose idea was the ballot security program?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think the ballot security program as you refer to it took on that name until 1964. Before that I think it was just called poll watching or challenging. I have no idea whose it was.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I gather from your response to my questions that you deny categorically that you were engaged in any of these activities that are identified by any of these individuals in any of the polling places that were mentioned.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. When you refer to these activities, Senator, that may cover a lot.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Just the ones I read about.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Would you read them to me again?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, we first have Mr. Pine. Your activities in Bethune precinct 1962 or 1964. "I saw him there. I saw him approach at least one voter, if my memory is correct, two. He asked them. He said, 'Pardon me. Are you a qualified voter' to this black gentleman. And the man said, 'Yes.' And he said, 'Do you have any credentials to indicate that you are?' And he said, 'Well, then perhaps there is a question of whether or not you are qualified.' And the man, instead of standing in line, he had advanced. By the time he got to the voting table, he would have found his name on the voting list, but he turned on his heels and left the voting precinct. I felt the whole purpose of that was to discourage blacks from voting."
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do deny that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And Mr. Quincy Hopper stated that he was at the Bethune school on election day and that you were there at the school having voters read from the Constitution to test for literacy.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do deny that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And Benjamin Brooks, the pastor of South Minister Presbyterian Church stated that he is familiar with you. He saw you at the Julian precinct where Pastor Brooks was the inspector on election day that Paul Fannon and Morrison were running. Reverend Brooks states that on that day you challenged black elderly working class voters for literacy by having them read the Constitution outloud.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I deny that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And Sidney Smith, Dr. Smith, psychology professor at Arizona State from 1947 to 1964 stated he served as a poll watcher in the 1960's. Smith states that on election day in 1960 or 1962, a poll watcher at a southwest Phoenix polling place observed you arrive with two or three other men. He says he recognized you from political functions, positive of his identification. He states that you approached a group of voters holding a card in your hand and said, "You cannot read, can you? You do not belong here." Dr. Smith says the voters were intimidated by your actions.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am sure he is mistaken as to the latter part. It is perfectly possible that I could have arrived at a south- 148 west Phoenix polling place with a couple other people, and again, I gather he is not definite as to the years, because one of my jobs as notice reading what I said in 1971 and recalling as best I can now, was to go to polling places where our challenger was not allowed into the polling place or if a dispute came up as to something similar to that, either I or along with my Democratic counterpart would go. So it is not at all inconceivable that I would have been with a group of two or three other people going to a southwest Phoenix polling place in whatever year that was. But the later part is false.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the activity described basically is personally challenging voters. That is the activity alleged, and you categorically deny ever having done that in any precincts in the Maricopa County in the Phoenix area at any election, is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that is correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, what is "I think." I mean you would remember whether you did or not. Harassing or intimidating voters is not something you are going to forget.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, let me beg to differ with you on that point, if I may. I thought your question was challenging. Now you say harassing or intimidating. As to harassing or intimidating, I certainly do categorically deny anytime, anyplace. If you are talking about challenging, I have reviewed my testimony, and I think I said I did not challenge during particular years. I think it is conceivable that 1954 I might at least have been a poll watcher at a westside precinct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, did you challenge individuals then?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it was simply watching the vote being counted.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Then you did not challenge them?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think so. But a challenge
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you would remember whether you challenged them now, Mr, Justice, would you not? Did you at any time challenge any individual?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. A challenger, Senator, was someone who was authorized by law to go in the polling place and frequently the function was not to challenge but to simply watch the poll, watch the vote being counted.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, that is fine. I mean, as I understand your testimony, you said you were a poll watcher. A challenger has a different connotation or activity.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. But to be a poll watcher at that time, I think you had to be a challenger.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, have you ever personally challenged any individual in any precinct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think so.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you would know it, would you not. if you did?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am not entirely sure. I cannot recall ever challenging any person, but you are talking about a period
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, these people might be
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Let him get through his answer.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I have responded in each case that you said to say that I did not agree with it, but if you are asking me 149 whether over a period from 1953 to 1969 I ever challenged a voter at any precinct in any election, I am just not sure my memory is that good.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, your affidavit says I have not either in the general election of 1964 or in any other election, in any other election. That is what your sworn affidavit was in 1971.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. What does the rest of the affidavit say?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In any other election at Bethune precinct or in any other precinct either myself harassed or intimidated voters or encouraged or approved harassment or intimidation of voters by any other person. So you might have challenged them but you did not intimidate or harass them is what I should conclude.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I answered all your questions the best I can.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Were you aware that Mr. Brosnahan indicates the decision was made not to prosecute any of the activities in terms of challenging various voters in the precincts in Maricopa County that there was a consideration for prosecution of these kinds of ballot law activities? Were you ever aware that that was under consideration?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I was.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. SO you never knew that a prosecution for harassing or intimidating or challenging voters was ever being considered by the U.S. attorney at that time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. My present recollection 24 years later is that no, I did not know it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. SO you never participated in any meeting about how to handle these potential investigations or prosecutions by the assistant U.S. attorney?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not that I recall.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In 1971, a citizen of Phoenix, Clovis Campbell, a member of the State senate, gave an affidavit, that you told him in 1964, that you oppose all civil rights legislation. You denied this in writing. Do you know Senator Campbell personally, or, by reputation? Do you know any reason why he would give a false affidavit against you on this point?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have met Senator Campbell. I had met him in Arizona. No, I do not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU opposed the Phoenix ordinance permitting blacks to go into stores, restaurants, and the like, in 1964, as I understand it. One of the statements of Clovis Campbell: in his affidavit he says that you told him that you oppose all civil rights legislation. Can you think of any civil rights bill that you favored at that time, in 1964?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is difficult for me to think back that long. It seemed to me there was a Republican, or some Republican, some type of version of the, perhaps a precursor of the 1964 Civil Rights Act, that would have extended Federal coverage to interstate highways, and that sort of thing, and that had always seemed pretty sensible to me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, it was the same year that Senator Goldwater supported the 1964 Civil Rights Act, here, in the U.S. Senate. 150 And as I understand, your recollection is that you supported some civil rights act dealing with interstate transportation? That was the one civil
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, supported it is
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, how else
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, you read about it in the paper. You think, you know, this might be a good idea.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you were active, obviously, in the political swim at the time. This is not just a Joe Q. Citizen who is sort of out reading the newspapers up in Scottsdale. I mean, you were an active political figure there. You are aware, obviously, of the political debates and discussions that were taking place, and so we are not considering these in a vacuum. You have got a State senator that said that you told him you opposed all civil rights legislation. You have denied that in an affidavit. You know of no reason, evidently, why Clovis Campbell would express that view in a sworn affidavit, and your response is, I understand, that you support, the best of your recollection you do support some civil rights bill that was being considered on interstate transportation?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, if you mean by support, publicly announce in favor of, no.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Sure.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you did not mind publicly announcing your opposition to the
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Right. Because I had thought it was
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [continuing]. Public accommodations provisions in Phoenix, and also writing about that, too. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Correct.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU wrote about that in a newspaper. You went to a public hearing on that, and indicated your opposition. So you were involved, at least, in the debate and discussion about civil rights, to some extent. And my question is, as you were prepared to take a position in opposition to those particular provisions in 1964, by direct testimony and by writing the newspaper, and we have a State senator that says that you told him that you could not find any civil rights legislation you supported. I am just asking you whether you, to the best of your recollection, can remember any? That is the question. Or whether we might be able to draw that Clovis Campbell might have been correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Your question, Senator
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I suppose it is a repeat. If you can think of any civil rights legislation that you
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, other than what I have said, I think that is it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could I just go to a different area, and this is with regards to the Jackson memorandum.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My time is up. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Justice Rehnquist, what, exactly, was your political role in the early 1960's, in Arizona? 151
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, recalling as best I can after this lapse of time, at some point there I was counsel to the Republican county committee.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Was that on the State level or the county level?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it was on the county level, but it might have been on the State level for a short period of time. I honestly cannot remember.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you recall what you were charged with doing in that capacity?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Giving legal advice to the county committee, I think.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And part of that, I suppose, would relate to the eligibility of prospective voters?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would think so, yes.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. It is normal, isn't it, in any political contest to have challenges on the part of either party to determine the qualifications of people to vote?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, the only State I was ever active in, really, was Arizona, and it certainly was normal there.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And really, it would be part of essential political responsibility to make certain that the ballots that were cast were cast by eligible people?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. The statutes authorized challenges.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And in Arizona, as is true in most States, there was an active program being conducted, I assume, by both parties?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly, but I think the Republicans were the first to get active, but I think the Democrats became active very shortly afterward.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. SO, essentially, you were chairman of some type of political committee on a local level, intending to establish guidelines and have people out in the field to ensure that the conduct of that election was honest in terms of eligibility of voters?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I am not sure that I was ever chairman of the entire program, even in Maricopa County, Senator Laxalt, and again, I would refer back to the statement I made in 1971, because my reflection, my recollection was a good deal more closer then than it is now. I think that I was chairman of the lawyers group which was active on election day, and before hand, doing the sort of things that you mentioned. I am not sure that I was ever chairman of the entire program, say, recruiting the challengers, and that sort of thing.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. There seems to be some sinister connotation to the word "challenger". That is a legal phrase, is it not, or, a legal word in connection with the mechanics by which
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It certainly was in Arizona.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And I know that it is in my State of Nevada. That is the precise term that is used to determine whether or not a given person is eligible, or not, a perfectly appropriate political procedure.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Well, now, in connection with your own activities—and we were dredging up old, old material here, admittedly some 24 years ago, rather substantially explored in the 1971 hearing. Senator Eastland listened to some of the testimony and then 152 concluded it, abruptly, in the minds of some of my colleagues. But at that particular time, 24 years ago, your capacity, I understand, was pretty much of a supervisor?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. A supervisor of lawyers. I do not think I had responsibility for the overall program.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And the mechanics I suppose would be that as these people arrived at the various precincts, indulged in by both parties, if there was a question concerning their eligibility to vote, they were challenged according to State law?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that is accurate, Senator. I think most challenges, when the program started out, were on the basis of residency. But again, let me repeat what I said to Senator Kennedy: that the usefulness of the challenger program, as I recall it, to the Republicans, was that it was the only way we could get a person in the polling place to watch what was going on. Because although State law provided for two persons of one party, and one person of another party to constitute the election board, that constituted, that ran the election, in some very heavily Democratic precincts, that person, the person on the election board, had to be a resident of the precinct. And we simply could not find, in some precincts, a Republican to be a member of the election board. And so there would be a two-person or a three-person election board of the opposite party and the only way we could get someone who was of the Republican faith—if you want to call it that—into the polling place at all, to see that things went on as normal—was to put them in as a challenger.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. SO that if you had indulged in that kind of activity—the point I am trying to get at is a distinction, and you attempted to draw it yourself, between challenging, perfectly legal, and harassment and intimidation which is improper and illegal.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I agree with you a hundred percent.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And you can categorically state here, that as far as harassment and intimidation is concerned, in none of these elections did you indulge, personally, in that kind of activity?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I have stated it in 1971, and I state it again now.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And for that matter, not have it condoned by others, in behalf of your campaign effort?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Correct.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. DO you know a Charles Pine?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I do not.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I might state to you, that he is the former Democratic chairman of the State of Arizona. Would that refresh your recollection?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. DO you know when he was Democratic chairman?
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. During that period. If you do not recall
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, it still—I am sorry—it still does not refresh my recollection.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. NOW James Brosnahan apparently was an assistant U.S. attorney and you have testified that you knew him?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; that is correct.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I might indicate to you, that in a quote that was given to the Baltimore Sun dated July 26, 1986, Mr. Brosnahan was 153 quoted to this effect. Quote: "I recall William Rehnquist was there. I cannot say I saw anything, specifically, that he did." So the socalled Brosnahan position is not nearly as definite as it might appear.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Does the statement say where I was?
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I think they are referring to the Bethune precinct.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I think most of the inquiry is in connection with that particular activity. So, in summing up, once again, you can categorically state, that you did not engage in any campaign intimidation or harassment in connection with any of these elections in the State of Arizona?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I can, Senator.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Let me change direction, if I may, for a moment or so. Why do you believe that you are qualified to be Chief Justice of the U.S. Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I guess the first qualification I feel I have is nearly 15 years service as an Associate Justice which enables me to, or I hope will enable me to perform a large part of the Chiefs responsibilities without having much difficulty getting started. I have sat at the conference table for 15 years, and I know how conference discussions go. I know the procedural niceties which any institution has, which may not be terribly important, but they are the way any institution works, and someone coming in from the outside and getting used to the—it just takes a while to get used to how things are handled. So, I think that is a valuable experience. And I think 15 years of getting to know the other eight people, although I of course have not known all of them for 15 years, is a very valuable asset. It will not be a group of strangers to me, obviously. And I also think—perhaps I am being immodest—that I have a very real interest in the Federal judicial system and the American judiciary. I have a great interest in the Supreme Court and its work. But I have a very great interest in trying to see improvements made, not just in the lower Federal courts, but seeing what might be done through the Center for State Courts, in helping State courts, at least getting financial assistance to them without trying to tell them what to do.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Don't apologize for being modest around here. I do not think it is the place for it. You know, it has been stated here, in rather strong terms by the opposition during the last several days, that the Chief Justice is vested with awesome power, and it has been stated, almost categorically, that the Chief Justice, procedurally, under this Court, and perhaps historically—I do not know—literally has the power of life and death over the matters that the Court will consider. Is that true?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I think the position of Chief Justice is an awesome position just because it is the No. 1 judicial position in the United States of America. I do not think it is because of the awesome power, that the Chief Justice possesses. I tried to indicate, in answer to the Chairman's question, and in answer to Senator Mathias's question, that the Chiefs prerogatives in the conference, the prerogative of assigning opinions, and the prerogative of lead- 154 ing conference discussion, while important, are seldom, if ever, ones that he can use to foist his judicial ideas, his jurisprudential ideas, off on an unwilling colleague. But it is because it seems like, with the increasing caseload of all the courts, that we are looking at real problems, and not just in the Supreme Court, and not just in the Federal judiciary, but in the entire American judicial system. And the Chief Justice is a visible spokesman for those concerns. That I think it is an awesome responsibility.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT, Let me draw a rough parallel. Does the power of the Supreme Court, the Chief Justice: is it akin to the power of a majority leader in the United States Senate? Are you going to be able to designate the business that the Court is going to handle? Or mechanically, help us. Do you arrive at that through a consensus? What is the procedure by which the Court determines what pieces of major litigation it is going to consider?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The Chief Justice, Senator, has been referred to as primus inter pares, the first among equals, and I have a feeling, from the way you described the power of the majority leader, that he is a good deal more equal than the majority leader. The Court, by vote, grants certiorari in a case to bring it up for review. It takes four votes in the conference to bring the case up for review. The Chief cannot bring a case up for review himself. The cases are generally placed on the docket in the order in which certiorari has been granted. So the Chief, as far as I know, has no particular power in deciding, well, we will hear this case out of order, or, we will hear these cases because I want to hear them, even though they were filed later. It is all, so far as I know, virtually a mathematical thing, in the order in which the cases are granted. So, the Chief has virtually no control, singlehandedly, over the cases the Court will hear, or the order in which it will hear them.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. There have been some questions raised, also, Justice Rehnquist, in connection with your positions, historically, and perhaps currently, in the broad areas of civil rights and in the broad areas of women's rights. Do you carry with you, at the present time, or have you, historically, some kind of bias in the area of civil rights?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not, Senator. No, I do not.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. IS there any rational connection between your positions, historically, on some civil rights legislation in cases before the Court, that would establish with some validity, or credibility, a claim that you are less than impartial when a civil rights matter comes before the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think that claim can be credibly made, Senator. I think that the constitutional positions I have taken in some cases involving the equal protection clause, have resulted in less favorable rulings, or votes on my part, for women's rights issues, and for some issues involving blacks, and other minorities, than would a broader construction of the equal protection clause. But I have taken the same position on the equal protection clause with respect to corporations. It is nothing peculiar to the fact that blacks, and minorities are invoking it. It is simply the fact that I read the equal protection clause, giving it the best interpretation I know how, somewhat more narrowly than some of my colleagues.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. And that has been historically your position, certainly in the area of women's rights?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it has.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Well, tell me: do some of the women's groups that we have been hearing the last several days have cause to fear lest Justice Rehnquist becomes the Chief Justice of the Supreme Court? Are women going to be prejudiced, or people who are involved in furthering feminist causes going to be prejudiced by your being confirmed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe so, Senator. The Congress has taken over a great deal of the protections of women's rights, and things like title VII of the Civil Rights Act. And I authored an opinion for the Court just this past June, I think, the Meritor Savings case, where we held that harassment in the workplace was the responsibility of the employer, even though not performed directly by the employer. It certainly was regarded, I think, as a victory for the cause that you are talking about.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. SO what you are saying, essentially, if I hear you correctly, is that you do not carry into these cases, or into the Court, or into your new position, any blatant historical or other bias in these very, very important areas?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I hope no bias 156
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, would you share with the rest of the committee the magic of 1 o'clock on Friday as opposed to 4 o'clock on Friday, or 12 o'clock on Friday.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, a good many of the members have made engagements, and this is the second day of the hearing, we have got a third day tomorrow, and Friday, at 1 o'clock will be the fourth day. I think that is long enough. And I would admonish the members now: it is not necessary to duplicate. If I have asked him questions and he has answered, or if you ask him questions he has answered, Senator Biden, it is not necessary for some other member to go on and harangue him, and ask him over and over again.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not think Senator Laxalt was duplicating by the fact that he repeated the same things. I did not view that as duplication.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I think he was trying to clear up what Senator Kennedy did. We will now take a 10-minute recess. [Recess.] The CHAIRMAN. The committee will come to order. The distinguished Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Thank you, Mr. Chairman. Mr. Justice, I think it is important that we put this show back on the right track, because my distinguished colleague from Nevada got into the issue of whether there was harassment, intimidation, or whether all you did was challenge, which is legal. I want you to understand that this is not the issue. The issue before this committee, in this Senator's opinion, is whether or not Justice Rehnquist appeared before the committee in 1971 and stated the facts, and whether you are being factually accurate today in representing what those facts are. Now the question of whether it was harassment, or intimidation, or challenge, is really irrelevant, because in 1971, you wrote: "In none of those years did I personally engage in challenging the qualifications of any voters." And so the issue then is: did you take any action that either was challenging, and harassment and intimidation would certainly be over and beyond that? I think it is a fact that you told the committee, in 1971, that you spent most of your time on election day in 1962 at party headquarters, only going to precincts, quote, "where disputes had arisen, in an effort to resolve them." Do you remember that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not presently recall it that accurately, but if that is what I said in 1971, I certainly stand by it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you ever approach any voters during this period about which we are speaking, in the polling booths, and speak to them regarding their qualifications to vote?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I do not believe I did.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you ever ask a voter any questions regarding his, or her, qualifications to vote?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. In the process of challenging them?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In the matter of being in a voting booth. In a voting booth, around a voting booth.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, certainly not in a voting booth.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you do it at any time? 157
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not that I can recall.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, as I understand it, this man, Charles Pine, was the Democratic chairman at that time. You have no recollection of ever having met him, or ever having known him?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It certainly does not come back to me at this time, in 1986.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. There is a man by the name of Arthur Ross, now a deputy prosecutor in Honolulu. He told the FBI that he saw you, and others, in 1962, with a card which had on it a constitutional phrase, asking prospective voters to read from it before entering the polls. Do you have any recollection of ever having done that? Did you ever do it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Did I ever ask a voter to read from a card? No. I do not think I did.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I am told that I used the word polling booth before instead of polling place. Would your answer have been any different, if I had used the word polling place?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. TO what question?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. With respect to whether or not you had asked people concerning their qualifications, being qualified to vote?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. My answer would be the same.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you ever ask a prospective voter to read from any text, whether the Constitution, or otherwise?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not that I recall.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Nelson McGriff filed an affidavit with the committee, stating: "I remember a challenger at the Bethune precinct some years back. I went in to vote, and there was this man challenging people to vote. As each person in front of me would give their name, this man would say 'I challenge you' to some of the people. He would stop them in line and give them a card to read about the Constitution. I think there was a fight, as this man looked roughed up. He was taken to a police car. I have now seen pictures of this man in the newspapers, and if this isn't the man, William Rehnquist, who is running for the Supreme Court, then it was his twin brother." That man's wife filed an affidavit saying: "I saw two policemen taking a man out of the voting place. The two policemen escorted him to a car. No other challengers were at the polls when I voted. I have now seen a picture of this man. It just looked like the man they were taking out of the polling place. This picture is of William Rehnquist and he does look like the same man I saw at Bethune precinct." Are they wrong?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. They are certainly wrong, yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Jordan Harris filed an affidavit, stating: I was present as a deputized challenger for the Democratic Party in Bethune precinct, a predominantly black precinct. I met the party challenger for the Republican Party, Mr. William Rehnquist, because I noticed him harassing, unnecessarily, several people at the polls, who were attempting to vote. He was attempting to make them recite portions of the Constitution and refused to let them vote until they were able to comply with his request. I know that this man was Mr. Rehnquist because the election board introduced me to him as a challenger for the Republican Party. Is he wrong? 158
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Finally, Mr. Robert Tate submitted an affidavit, stating: "I was present at Bethune precinct, a predominantly black precinct. Mrs. Miller had come to cast her vote at Bethune precinct. She was encountered within the 50-foot line by William Rehnquist and requested to recite the Constitution. Mrs. Miller came to me crying, stating that Rehnquist wanted her to recite the Constitution. I looked around and saw William Rehnquist and Mr. Harris, struggling. I now remember him from pictures I have seen, lately, in the papers, as the same one involved in the above incident at Bethune precinct. He did not at the time, however, wear glasses." Are all of these people stating untruths?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The ones that you have referred to, yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you ever personally confront voters at Bethune precinct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Confront them in the sense of harassing or intimidating?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NO. I mean in the sense of questioning them, asking them about their right to vote, asking them about the Constitution, asking them to read something, asking them questions having to do with their voter eligibility?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And does this cover Bethune precinct for all years?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yes. Did you ever personally confront a voter?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I did.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Would you categorically say you did not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If it covers 1953 to 1969, I do not think I could really categorically say about anything.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you think at some time you did personally confront voters at Bethune precinct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. NO, I do not.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, then what do you mean when you qualify your answer?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, to the best of my recollection. You are talking about something in 1953; it would have been 33 years ago.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Justice, I am not talking about your being able to remember where you were on the third day of June 1952. I am talking about whether you ever confronted people and said to them: "Can you read this Constitution?" "What educational background do you have?" Challenge them in their right to vote. And you are saying that you do not remember. And I am saying to you, is it possible that a man as brilliant as you, could not remember if he had done that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, challenging was a perfectly legitimate thing.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But you told the Senate that you never challenged anybody.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe I told the Senate, Senator, in 1971, over a given period of years, I did not think I had challenged some, and I stand by that testimony. I think you are broadening it to go way back into the early 1950's. 159
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU said in none of the years between 1958 to 1968 did I personally engage in challenging the qualifications of any voters. Did you do it before that? Did you challenge voters before that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I did, no. Again, I point out that that is 30 years ago.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. A person who is identified only as a Phoenix lawyer, is quoted in the Washington Post as stating that he visited a minority precinct in 1962, and that: We walked up a flight of steps to a schoolhouse. Bill had a camera and he took a picture of us as we came up. The Post story also says: The lawyer said that Rehnquist acknowledged he had been taking similar pictures all day. The attorney said that they asked whether this amounted to harassment of voters. Rehnquist reportedly laughed and said there was no film in the camera. Did you ever have a camera at a voting place?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think so, no. I cannot imagine why I would have had one. I have no recollection.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That attorney is misstating, 100 percent misstating the facts?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think he is.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Melvin Murkin, an attorney in Phoenix, told the FBI that he recalled seeing you give instructions to challengers in a polling place, and that voters in line began to leave as a result. He said he confronted you and told you that people did not want to be embarrassed like that. Is he being untruthful as well?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS to the first part, Senator, if he saw—he certainly could have seen me giving instructions to challengers in a polling place. As to the second part, would you read that again.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. He said he confronted you, and told you that people did not want to be embarrassed like that. And he also said that voters in line began to leave as a result of your having given instructions to challengers.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have no recollection of that, no.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And what instructions did you give to the challengers?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. We gave instructions to challengers generally the night before the election, or maybe two nights before the election. Read the statute to them, told them what could lawfully be done, what could not lawfully be done.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But Mr. Murkin is saying that he recalled seeing you give instructions to challengers in a polling place.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think I said in my 1971 statement to the committee, Senator, that on one occasion, in some polling place—and I do not think I specified it then, and I certainly do not remember it now—I came upon one of our challengers exercising challenges in what I thought was an unlawful manner, and told him to stop.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU told the committee in 1971 that you recruited lawyers to work on a lawyers committee on election day in 1960. What were your activities in connection with that committee and what was the committee? 160
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have only the most general recollection now, and I think I stated, in more detail, in 1971. I think it was a committee to assist in the poll watching and challenging process in the 1960 election.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Ralph Staggs, who was Republican county chairman, has stated that he established a committee of 12 lawyers, with you as the chairman, to oversee the challenging of voters during the 1962 election. Did the challengers take their instructions from you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would think that we probably had some sort of a challengers' school at which one of the lawyers spoke. At this passage of time I could not say whether it was me, or somebody else.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. DO you know Charles Hardy?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. He is a Federal judge now?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And he described the Republican challenger program in Phoenix, in 1962, in a letter to Senator Eastland. He stated: In 1962, for the first time, the Republicans had challengers in all of the precincts in this county which had overwhelming Democratic registrations. At that time, among the statutory grounds for challenging a person offering to vote, were that he had not resided within the precinct for thirty days preceding the election, and that he was unable to read the Constitution of the United States in the English language. In each precinct every—and that every is his emphasis, he underlines it— every black or Mexican voter was being challenged on this latter ground, and it was quite clear that this type of challenging was a deliberate effort to slow down the voting so as to cause people awaiting their turn to vote to grow tired of waiting, and leave without voting. In addition, there was a well organized campaign of outright harassment and intimidation to discourage persons from attempting to vote. In the black and brown areas, handbills were distributed warning persons that if they were not properly qualified to vote, they would be prosecuted. There were squads of people taking photographs of voters standing in line to vote and asking for their names. There is no doubt, that these tactics of harassment, intimidation, and indiscriminate challenging were highly improper, and violative of the spirit of free elections. Yet despite your leadership role in that area, you stated in 1971: The practices described by Judge Hardy to the extent that they did in fact obtain did not come to my attention until quite late on the day of the election in 1962. Now you have already told us that you were head of some of these committees, that you may or may not have been giving the instructions to the challengers. How do you reconcile Judge Hardy's comments concerning what the challengers were doing, and what you, Justice Rehnquist, were doing at that time, since they seem to be inconsistent with each other?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I did not detect inconsistencies.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, you indicated that you were only advising them what the law was, that you had only explained the law to them, and that you had tried to help resolve issues. Judge Hardy indicates that there was a deliberate effort of harassment, intimidation and indiscriminate challenging. 161
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Those challenges that Judge Hardy described were not following the instructions that they got from the lawyers group.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Did you know about it at the time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I said in the affidavit that you just quoted that I learned about it late in the day.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. What action, if any, did you take?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not remember it.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me ask you some other questions. When you were a Supreme Court Clerk—how much time do I have left? Mr. SHORT. Approximately 4 minutes. Senator METZENBAUM. When you were a Supreme Court Clerk, you prepared a memorandum regarding the Brown v. The Board of Education case. The memorandum recommended to Supreme Court Justice Jackson that he vote to uphold segregated schools by upholding the old separate but equal doctrine. Now you told the Senate in 1971 that this memo was not a cause for concern because it represented Justice Jackson's views, not yours. I must say that, in reviewing the record, I have a hard time accepting that statement. I should also say that although I am concerned about the views you held as a Clerk 30-years ago when you were a Clerk, I am more concerned about what you told the Senate during your confirmation hearings to be on the Supreme Court. At that time, you wrote. "It was intended as a rough draft of a statement of his"—that meaning Jackson's views at the Conference of the Justices—"rather than as a statement of my views." Now, the first point that troubles me in this memo is that this memo is simply not written as if it is supposed to be someone else's views. It does not say Justice Jackson, in such and such a case, you said this, and in another case, you said that. Instead, it uses the pronoun "I" several times. And it concludes by saying, "I realize it is an unpopular and nonhumanitarian position. I think Plessey v. Ferguson was right and should be reaffirmed." Again, Mr. Justice, we now not only have the question of your point of view, we have the question of the accuracy of your representations to the committee at that time that is of concern to this Senator and, I would guess, to a number of other members as well. Does not the memorandum that was written, that you wrote, does it not have language that would indicate that you were indicating your views, not Justice Jackson's views?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I suppose one could read it either way. The "I's" in it certainly could have been mine rather, just looking at it as a text, rather than Justice Jackson's.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, there were other memos. As a matter of fact, Justice Jackson had different views on the case and then joined the decision to strike down the separate but equal doctrine, did he not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. He did in the second argument. Chief Justice Warren, however, says that in the conference after the argument in December 1952, that the views Justice Jackson expressed were contrary to what he ultimately came up with. 162
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. This is your memo. I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use at conference. The informal nature of the memorandum and its lack of introductory language made me think, and then it goes on. What concerns me is that thereafter you represented that it was not your position. You had a perfect right to have that position. Nobody would argue about that. What would concern me and others is that if that was your position, why did you indicate to the committee that it was the position of Justice Jackson? We have other memos of yours where you marked as a section, Your ideas, referring to Jackson. And how do you explain the fact that here is one that talks about I, I, I; others say your ideas, and then you come back and say to the committee I think those were Justice Jackson's views? How do you explain that to us?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Justice Jackson was a great believer in the idea of whatever you want to call representative democracy, the Court having made mistakes in the past by reading its own moral views into the Constitution. And much of the theme of the one and a half page memo is along those ideas that the Court has run afoul in the past by reading into the Constitution what it felt were the morally right views, only to find that it had made a mistake. And this apparently was an effort to apply those ideas to the Brown case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But you said to the committee in 1971, "I am satisfied the memorandum was not designed to be a statement of my views on these cases."
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [presiding]. Senator Metzenbaum, your time is up.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have not had a minute.
Staffer
N/A
()
Mr. SHORT. NO. It blinked a few seconds.
Unclear
Unclear
()
Your time is up.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I did not realize I was presiding.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I have difficulty in understanding why you said it was "my views," and then you make this distinction with Justice Jackson's views, and then say to the committee that those were Justice Jackson's views and not yours. Nothing in the memo would seem to confirm that at all.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. IS that a question, Senator?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have tried to explain that the theme of the memo, the failures of the Court in the past was a very strongly held value of Justice Jackson.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I will reserve the balance of my questions until later.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. Mr. Justice Rehnquist, let me just clarify the record to a degree, because Judge Charles L. Hardy, whom Senator Metzenbaum has just mentioned, of course, is a lawyer in charge of the Democratic Party Committee which served as an arbitrator of voter challengers and disputes in the 1962 election. In his letter to the Judiciary Committee back in 1971, Judge Hardy unequivocally states that you, Mr. Justice Rehnquist, were 163 not involved in the Bethune precinct incident. And specifically he stated this, and this is a Democrat, the leader of the Democrats in that State at the time on this issue: I can state unequivocally that Mr. Rehnquist did not act as a challenger at the Bethune precinct. Because of the disruptive tactics of the Republican challenger at that precinct, I had occasion to be there on several occasions. About 4 p.m., after a scuffle, this Republican challenger was arrested and removed from the polling place by sheriffs deputies. Thereafter, there was no Republican challenger of Bethune. Challenging voters was not a part of Mr. Rehnquist's role in 1962, or subsequent election years, nor did he have anything to do with the recruitment of challengers or their assignments to the various polling places. I think pretty good language to show backing by those who were partisan basically differing from you, though what you have been saying here is correct. Matter of fact, in his interview with the Federal Bureau of Investigation, Judge Hardy made it very—I will just cite the conclusion that he made. He said, Judge Hardy stated that he and Justice Rehnquist are politically opposite, but that there is no question in his mind as to Rehnquist's legal ability and qualifications for the position for which he has been nominated. So that the record needs to show that. Second, there was a comment that Senator Goldwater had voted for the 1964 Civil Rights Act. He had not. He voted against it. Just so the record is clear on that. Now, on this last point, Mr. Cronson, one of the points Senator Metzenbaum was making, is it not true, to your knowledge, that Mr. Cronson said in a 1971 New York Times article, that "Both of us personally believe that Plessey was wrong." And that he further said in a 1971 telegram that, "It is probable that the memorandum is more mine than yours?" Are you familiar with both of those quotes?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am familiar with both of those quotes, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Are they not true quotes to the best of your knowledge?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. They are certainly true quotes in the sense that I am sure that Don Cronson said them.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, that is what I am concerned about. Now, it seems to be most important that both people present at the time the memo was drafted agreed that you were not expressing your own views in that document. Cronson's explanation was that you were assigned to write one side of the issue and that the memo was a joint product which may have been more his thoughts than yours. Now, your remembrance is that Mr. Justice Jackson wanted the memo to reflect his own views in conference, but both agree that the views were not your own in that memorandum. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it is, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Now, with regard to being the lone dissenter, there has been some criticism that you have been in dissent quite a few times on the Court. I personally find no problem with that. I think the dissenters in the courts—on the Supreme Court sometimes turned out to be the greatest Justices of all. Mr. Justice Holmes is probably one of the all time great dissenters is a good illustration. 164 But you are not the greatest sole dissenter on the present Court. Mr. Justice Stevens has dissented many more times during the period in which your terms have overlapped. For instance, Stevens had 51 merit dissents and you had 40 and full opinions over the last 10 years. I might add that Justices Brennan and Marshall remain the greatest dissenters on the present Court together, dissenting alone together hundreds of times over the last few years in particular. In the last 2 years, they dissented all by themselves many more times than you, who have dissented only seven times during that same period of the last 2 years. In fact, you wrote only 75 dissents in the 5-year period, from 1980 to 1984, as compared to 106 for Justices Brennan and Marshall, or should I just say just for Brennan, and 145 for Justice Stevens during that same period. I just think the record has to show these things because I think it has been misconstrued by some of my colleagues. Now, total dissenting votes which would measure who was on the losing side show that over the last 5 times, that is from 1980 to 1984, you dissented in 152 cases, as compared to 245 cases for Mr. Justice Brennan. And I find no fault with Mr. Justice Brennan for doing that. I think when you disagree and think the law is incorrect, as enunciated by the majority, you ought to dissent. And you have had the courage to do that. You could go on and on. Let me just ask you a couple of questions about the Brown decision. Because you have had some questions on that in the last while. Your 1952 state of mind, when you were working as a law clerk to Mr. Justice Jackson, was not unusual. We have to remember that the Court itself struggled with this case as it had struggled with no other in recent memory. And I think we have to remember, No. 1, that the Court ordered a reargument on that case. No. 2, the Court ordered a separate hearing on remedy. And, of course, the records of the Court show that. It seems to me that the Court was very confused on that case and it was cautious, and it is understandable to me that a clerk would be similarly cautious. For instance, you said on March 3, 1985, in a New York Time magazine article, entitled "The Partisan," that your views on Brown have probably changed since 1952. You stated repeatedly that your co-clerk thought and agreed that you thought plus he was wrong in 1952. In other words, you never doubted that State-sponsored discrimination or segregation ought to be held unconstitutional. That is true, is it not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have always held that position?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. There is nonetheless a perfectly reasonable argument the other way, as cited by your Partisan article, the article was called a Partisan article. We sometimes forget that in 1952, the Court had struggled greatly with the Brown case. For instance, I have the notes here, Justice Jackson's notes from that conference in his own handwriting. And those notes show that from the first 1952 conference on Brown, they indicate that then Chief Justice Vinson stated that he was not sure what to do to resolve that case. It was not Chief Justice 165 Vinson, according to the notes. He noted that there were 60 years of precedent behind the Plessey decision, and the Congress had itself passed no statute to the contrary, which was a matter of great concern to him, at least from these notes of Mr. Justice Jackson. In fact, as he pointed out, Congress had affirmatively acted to segregate the District of Columbia schools even after the Harlan dissent in Plessey, which did not refer to schools at all, as you know. In other words, even the Chief Justice, the then Chief Justice made an argument before his colleagues that it was "perfectly reasonable to argue the other way." So I just want to point that out, that it was not unusual for any sincere person to be concerned about the massive change in law that that was going to bring about, that your position has never been inconsistent, even then against the Plessey decision. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. Now, your 1952 state of mind is important also because, as I reviewed the cases, I found that you have supported and cited the Brown v. The Board of Education decision as you have supported the Brown decision in 34 cases since you have been a Justice on the U.S. Supreme Court. Are you aware of that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am, Senator. And I made an excerpt here of a case in which I joined the Chief Justice's opinion in a case called Milliken against Bradley.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Right.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Where the Court said—this was not just kind of citing Brown as authority—here is what the Chief Justice's opinion said in that case. Ever since Brown v. The Board of Education, judicial consideration of school desegregation cases has begun with the standard, and this is a quote from Brown, "In the field of public education, the doctrine of separate but equal has no place. Separate educational facilities are inherently unequal." And the Chiefs opinion goes on to say this has been reaffirmed time and again as the meaning of the Constitution and the controlling rule of law.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, there is no question that you have stood very firmly behind the Brown decision, and I find it a little reprehensible that people come in here and try to say that you have been against civil rights when you actually supported at least 34 cases, citing Brown as the reason for that support. I might say, in the first place, I think it is important to establish that there is nothing extreme about your views on civil rights. And I think that term has never been abused as much as it was yesterday and probably will be throughout the remainder of these hearings. Nonetheless, I think it might require a little bit of time here to show that you are in the mainstream. To start with, let us look at the constitutional issues. In the Wygant case, you joined the plurality opinion written by Mr. Justice Powell, is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Yes, I did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. In other words, you joined in opinion with four of your other colleagues which stood for the proposition 166 that a school board could not give racial preferences to some teachers when deciding who to lay off.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I am not sure there were four other colleagues on the opinion. I think there might have been just a total of four people, maybe even a total of three people on Justice Powell's.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. But I understand that case, in that case the school board was using race in its lay-off decisions to retain proportional representation on the faculty. And as I recall that decision, the plurality decision in which you joined, agreed that strict scrutiny applies to racial classifications, but concluded that there was not sufficient evidence to justify the conclusion that there had been prior discrimination. That is what the plurality decided, is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. TO the best of my recollection, yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. In the absence of a showing of discrimination, societal discrimination without two or more imposing a racially classified remedy. Now, do you recall if there were any dissents in that case?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I have a feeling that as to whether the judgment of the court of appeals should have been affirmed or reversed, there were five to—I am not sure. But the more I think about it, it seems to me it came out 5 to 4, but I could be wrong on that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, it seems to me that there were dissents, of course, and that the Senators who find your views extreme on this particular issue or this type of a case are only upset because their preferred view was not the one which prevailed in the Court. They wanted the dissents to prevail, but they did not. Now, their dissents, as I recall, wanted quotas to be used in layoffs, in these layoffs, even if there was no showing of past discrimination. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is certainly the best of my recollection, Senator. But I want to state that it was a fairly complex fact situation
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Of course, the opinion itself would be the authoritative statement of what the facts were.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. All right. But if that were true, then it seems to me that winning quotas to be used as an extreme position in civil rights law. Let me just go to another case, and that is the Fuller-Love case. You were joined in dissent on that case by Mr. Justice Stewart, who I think has been a very fine Supreme Court Justice before he died.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly agree with you 100 percent on that, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. He was a wonderful man. I knew him well. In other words, you were not alone or even the lead opponent or adherent of this point of view, although it was, I think, a commendable point of view. Justice Stewart based his dissent to the Court's decision to uphold a racial setaside on Harlan's dissent in Plessey, which begins, "Our Constitution is color blind." 167 Now, it was Stewart's opinion which you joined that "except to make whole the identified victims of racial discrimination, the guarantee of equal protection prohibits the Government from taking detrimental action against innocent people on the basis of the sins of others of their own race." Now, that sounds pretty mainstream to me. You seem to be saying, and certainly Mr. Justice Stewart seems to be saying, that when racial discrimination is proven, it should be remedied swiftly. You believe that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Otherwise, the Government ought not to presume to use quotas or other race-conscious remedies unless discrimination is first established.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I draw back a little bit at paraphrasing there, Senator, because we had the Wygant case and we had a couple other cases up there, and your summary may be entirely accurate. But I'm loath to subscribe to it unqualifiedly without a better recollection.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, I'm not trying to put you on the spot, but I am trying to say there was a good reason, or there were good reasons, for your dissent in that particular case, because here were racial set-asides that were preferentially made, without a showing of real discrimination, or discrimination at all, other than statistics, and they don't, in and of themselves, prove discrimination. There is a considerable body of law, and there are considerable legal advocates, who would sustain throughout this society your particular position. In fact, there are some who say we shouldn't have discrimination in any form, whether it's in forward gear or reverse gear. I just wanted to make that point. In the Bakke case, which concerned the impact of title VI, in a special admissions program, you joined the opinion of Justice Stevens.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, Mr. Chief Justice Burger and Justice Stewart were also joiners on that opinion as I recall. Now, the argument of you four Justices was that exclusion of any individual on the basis of race would violate the plain language of title VI of the Civil Rights Act of 1964. Once again, it seemed to me you were right in the mainstream of the Court. Incidentally, Bakke was admitted to the school. In title VII cases, we could start with the Weber case. That was a case upholdinq the collective-bargaining agreement which contained a hiring quota, as you know. You dissented, in an opinion again joined by the Chief Justice; is that right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Once again, I would note that no one here I think can assert that Chief Justice Burger is out of the mainstream. Your dissent, as I recall, once again maintained that a quota is, per se, violative of the notion of equality and that title VII does not permit that interpretation. Again, it seems to me that this is not something that could be called extreme because, again, your logic prevailed in the famous Stotts case, when the Court held that court-ordered preferences based upon the color of a person's skin, solely on that basis, vio- 168 lates section 706(g) of title VII. That case decided that court-ordered relief was to provide "make whole" relief only to those who have been actual victims of discrimination. Do you see the Stotts case as beneficial to a policy of nondiscrimination for all Americans?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, that's an issue that was before us in the Stotts case; it was again before us in Wygant and a couple of other cases. It is going to come before the Court again, I'm sure. It's a very critical issue right now.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. SO you would rather not comment on it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If you would forgive me, I think I would prefer not to comment on it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, all I'm saying is, anybody who thinks about it can see that there are two legitimate sides to these arguments. You're not extreme because you might take one side or the other. There are good arquments to be made here. I think you could go on to note that in the Stotts case, that Stotts was not applied to court decrees entered with the consent of the employer. For instance, in the Firefighters v. Cleveland case, just decided this year, you were amongst the dissenters in that limitation and in the EEOC case decided the same day. The Equal Employment Opportunity case said that court-ordered relief need not be limited to actual victims but must be narrowly tailored to correct past discrimination. So, in summary, all I'm trying to bring out here with this line of remarks and questions is that you interpret the Constitution, as I see it, to protect all individuals from racial discrimination.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I'm glad you see it that way, Senator, and I agree with you.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In other words, the engines of discrimination are just as insidious, whether—as I have said before, whether they run in forward gear or reverse gear. Reverse discrimination is maybe just as insidious or invidious, to use the Supreme Court term, as forward discrimination. Now, it seems to me this utter distaste of yours for discrimination is a mainstream position. You may differ on these points, like many great constitutionalists do. But you, like most Americans, believe that the Constitution is color blind and I, for one, want to compliment you for recognizing that and I personally resent you being called an extremist because you don't always agree with one point or the other with regard to civil rights law, which is complex, difficult, and, of course, very controversial in every debate we have on the Judiciary Committee and in every debate you have there.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I think, Mr. Chairman, that's all I will take for now.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Arizona.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Justice Rehnquist, we have had a lot of affidavits read to you from people who have said you were involved in challenging and abusing voters and what have you in 1962 and 1964. As the Senator from Utah pointed out, Judge Charles Hardy stated in his recent statement to the FBI that he knew there were incidents which occurred in the Bethune precinct in 1962 or 1964. He has been active 169 in the Democratic Party for a long time. He said it is no doubt that Republicans were engaged in a deliberate attempt to discourage minority voters for a period of several election years—that being the Judge's statement. Were you involved in any way to discourage minority voters in 1962 or 1964?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Only in this very possible way, which I would not think would be a correct answer to your question. But if you say you were discouraging minority voters by putting a challenger in at precincts which were heavily Democratic and which certainly had a number of minority voters voting at them, in order to lawfully take advantage of the State law which permitted observing the election board functioning and challenging as provided by law, one could say, I suppose, that that did discourage minority voters. But not lawful minority voters. So if you would just amend your question to say lawful voting by minorities, I could answer unqualifiedly "yes".
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU were not involved, then, in discouraging, from your standpoint, in discouraging lawful minority voters?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. NOW, Judge Hardy goes on to say that he does not recall seeing Rehnquist at the precinct; he has heard others say Rehnquist was there, but he did not see him. We have seen the letter that was written. Now, I want to read to you something of one other prominent Democrat at the time—his name is Judge Thomas Murphy. Judge Murphy was interviewed this month. He was presiding president of the Young Democrats in Phoenix, AZ during the 1960 s. He says he did not recall the incident during either of elections, and he described the 1962 election as not that exciting. He did become chairman of the Democratic County in 1964, so the record has it, and as that County Chairman, Murphy describes the Republican observers as "nice ladies", and thought the allegations being made about William Rehnquist were "a bunch of crap." Murphy described William Rehnquist as a man of the highest integrity, a gentleman, a fine lawyer, et cetera. The reason I get into this, Justice Rehnquist, is because I would much prefer to have Mr. Hardy here, Mr. Pine here, Mr. Harper, Mr. Brooks, Mr. Smith and the others who have been quoted here, indicating that you acted improperly. As long as we're qoing to get into that game here, I think it's important that those who felt you acted properly during that time should also be on the record. Your involvement as a challenger, can you tell us for the record, in those days I was a challenger also for the Democratic Party in Pima County those very years. Can you tell us what that amounted to as far as your interpretation of what a challenger was?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. In the years that we are talking about in the 1971 affidavit which I think is 1958 through perhaps 1968 or something like that, and I think I stated that I was not myself, I did not myself challenge during that time.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU never were a challenger?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot say going back way further into the 1950's that I was not, and one of the reasons it is hard to say is because to even watch an election counting in a precinct where you 170 did not have someone on the election board, the only way to get in, perhaps you recall or maybe the law was changed by the time you younger people came along, was to send someone in as a challenger. Then they would frequently let the person stay to watch the counting of the ballots, but in the years that we are talking about in the 1971 affidavit and conflicting testimony and so forth, I stated as fully as I could on the basis of my recollection in 1971 what I had done in each of those years, summarizing on the basis of a much fainter recollection now. I think my activity was primarily that of a member and perhaps 1 year a chairman of a lawyers committee that tried to tell the challengers in advance what they could do and then one biennial election—I cannot remember which it was—I know that Charlie Hardy and I made rounds on occasion to try to settle
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU are in the position, Judge, as a lawyer or the head of the committee advising challengers, what were the specifics as you can recall that a challenger could do? What could a challenger do that was legal?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot recall from memory now what a challenger could do. But I notice Senator Metzenbaum and Senator Kennedy said that a challenger could challenge on the basis of reading the Constitution in English and failing to reside at the place where you claim to reside for 30 days before the election. I do not vouch for that. That rings a bell with me. I think perhaps that is the way it was.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you recall giving that type of advice to Republican challengers?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly gave that type of advice, reading from the statute probably. I cannot remember exactly what was in the statute.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. What exactly was the committee that you headed up 1 year or part of? Was this a lawyers committee to give advice on call or something?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, it sounds perhaps a little more glorified than it was. It was lawyers who would volunteer a couple hours on election day to come over to county headquarters perhaps or sometimes work out of their offices in case legal disputes arose, you know, some question was raised by someone on the county committee somewhere else as to some election practice, and we wanted a lawyer handy to give a legal answer.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU are familiar with Ralph E. Staggs?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I am.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. He was, I think, county chairman in 1962 for the Republican Party. He indicates that he was responsible in January 1961 and he organized the challenging committee in preparation of the 1962 general elections in November. He goes on to say that he was advised that the Democratic Party was very strong during the early 1960's. The Republicans were concerned about challenging any and all fraudulent voters in the 1962 elections. Staggs advised he organized a committee of 12 lawyers to oversee the challenging of unqualified voters and he appointed William ( Rehnquist chairman of that committee. Is that accurate? 171
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would have no reason to doubt it certainly. I cannot presently think back and say yes. But I have no reason to doubt that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. He goes on and says that he himself sent two precinct committeemen to voters precincts in the Bethune School in Phoenix. One of the committeemen was named Wayne Benson. Do you remember that name?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I remember that name, yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you recall that Mr. Benson, as Mr. Staggs says here became embroiled in a confrontation in which he displayed a card with an excerpt from the Constitution and asked various voters to prove their literacy by reading the excerpt aloud?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I might have heard about it on the phone the day it happened, and I think that I read about it in the paper the next day.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And some of the voters happened to be black—this is according to Staggs—and other minorities and several became discouraged from voting. Staggs suggested that one of the reasons these voters did not vote was because they were aware that their illegal status had been discovered by Benson and other poll watchers. He, Staggs, advised that he dispatched Rehnquist from the Republican county headquarters, located at 32d and Oak Street, to go to the Bethune School, clear up the disturbance involving Benson. Do you recall that that he dispatched you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU do not recall him asking you to go?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. He goes on and says that Staggs advised he also sent Harold Musgrave to replace Benson as a poll watcher for the Republican Party. Do you remember Harold Musgrave?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Harold, I could not give you a face, but certainly the name Harold Musgrave sounds familiar.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Stagg emphasized that Rehnquist was not involved in any direct challenge to any voter at the poll. He added that Rehnquist's roll was merely to serve as a peacemaker and resolve a dispute between Benson and officials of the Democratic Party. Staggs said that Rehnquist returned about an hour and a half later to Republican county headquarters. Staggs could not recall any explanation by Rehnquist concerning the Benson confrontation. So you do not remember this incident at all even being asked by Staggs or
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I really do not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you recall the committee of 12 lawyers?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I recall a committee of lawyers. I could not tell you if there were 12 of them.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. AS part of that committee of lawyers and being the chairman of it, is that something that you probably would have been doing at the request of the chairman if there was a confrontation at a precinct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It certainly could have been, yes. 172
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I mean, was that not what the committee was supposed to do which is go and resolve matters or disputes?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If trouble came up, it was our job to go out and see if we could solve it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. When you and Judge Hardy, the quote I think you said "made some rounds", is that what you were doing then?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Exactly. Troubleshooting.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU say "troubleshooting". You were seeing whether or not challengers on either side of the political aisle were involved in any disputes that needed to be observed by the party officials?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Our problem, as I recall, was usually getting our challenger into the election place and the Democrat on occasion has complaints about the qualification that our challenger would have.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you recall what a challenger had to do? Did you have to submit this challenger's name to get him in there before the election?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, I do not have a very clear recollection.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I remember, I would hate to be asked what I did on challenging in 1962 and 1964 in Pima County, because I was a challenger and a legal observer for the Democratic Party, but I can't remember which precincts I went to. But I was on call, as apparently you were, Judge Rehnquist. According to Staggs, there were "the good old days", we Democrats' days, back in 1962. The Democratic Party was very strong during the early 1960's. Things have changed a bit in our State. Let me turn to something else because I have a feeling, Judge Rehnquist, we're going to revisit this question of this particular subject matter probably time and time again. There have been witnesses asked to come, and I hope they do come, including Judge Hardy, perhaps, to testify in this matter, and those that have reported to the FBI and signed affidavits regarding your alleged improprieties back in 1962 and 1964, so we're going to have this subject matter before us for another day or two. I would like to turn to another subject matter which has been touched on, Justice Rehnquist, and that is, as the Chief Justice, you are the Chief Justice of the United States. You head up the—you are the Chairman of the Judicial Conference and other administrative powers. One of the interests that I have had a long time is the judicial branch of enforcing judicial discipline, and there has been some legislation passed back in the late 1979's which I authored, but I was very disappointed what we finally put through, mainly I might say because of the objections of judges around the country. I wonder if you have a knowledge of the Judicial Tenure Act that was passed, whether or not you think that the circuit judges should complete the work of that act and/or whether or not you think they have, what could be done to see that the circuit judges, in accordance with that act, set up their procedures for reviewing complaints about judges?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I realize that is very much the prerogative of the Chief Justice to keep abreast of matters like that. 173 But I must confess that I am much less abreast of it than I would like to be. I know that the act was passed and that it gives the judicial council, the collective judges of the various court of appeals some disciplinary powers over other judges. And I have a couple instances in mind where I have a feeling that those powers have probably been exercised. But I simply have not made enough of a study of it, and I am not familiar enough with just what each circuit council has done to be able to give an informed answer to your question.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Let me just quickly review title 28 of the Judicial Discipline Act. Section 372 says, and I quote, "Any person alleging that a circuit or other judge is engaged in conduct prejudicial to the business of the court may file with the clerk of the court of appeals a complaint." It goes on to say, "Complaints are to be reviewed by the chief judge of that circuit." Section 372 says, goes on to detail the process, including the formation of a special committee to investigate the facts and allegations in the complaint. As the Chief Justice of the United States, do you care to comment of your views of this act and what you intend to do if in fact it has not been implemented in all of the circuits?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I would certainly think that was something that would merit the serious attention of the Judicial Conference of the United States which has the sort of administrative capacity to see whether the various circuit councils were doing what they were required to do under the law.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Can I take from that that you indicate an interest in that yourself, and you intend to be involved in the implementation of that act?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly. Certainly.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I just want to, as one member of this committee, encourage that. Justice Burger has done some great things on the Judicial Conference, including setting out some guidelines for this. I know he has been very busy, and I hope the new Chief Justice, which I think is going to be you, would take a careful look at this and see that these circuit courts have implemented this act. And I think the personal attention of the Chief Justice would have a lot to do with that coming about. Mr. Justice, we are constantly besieged here and told about the crisis in courts. Justice Burger justified the need for the intercircuit panel by emphasizing the crisis nature of the Court's caseload. Do you believe that we are in a crisis level and that the caseload is too heavy for the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I do not believe that the current caseload is too heavy for the Supreme Court, as I indicated to Senator Mathias. But I respect the Chief Justice's contrary view. He is following Justice Frankfurter's idea, I think, that ideally when you are dealing with very important cases that take a lot of thought and have a lot of arguments, pro and con, maybe a nine-judge court would do better to take 100 cases a year rather than 150. My own feeling is that all the courts are so much busier today than they have been in the past, that there would be something almost unseemly about the Supreme Court saying, you know, ev- 174 erybody else is deciding twice as many cases as they ever have before, but we are going to go back to two-thirds as many as we did before. I think that we can manage to decide 150 and do a reasonably competent job.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you believe that we should consider or pass the intercircuit panel?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe very strongly that you should pass that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. HOW do you believe those judges ought to be appointed? Do you think they should be appointed from the circuit, from the Supreme Court, or the President? Do you have an opinion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have an opinion which I think may disappoint you to a certain extent, Senator. The Chief Justice proposed in his bill or draft, suggested that they be appointed either by the Chief Justice or the Supreme Court. And I do not regard this as terribly desirable because the Supreme Court as a body, I do not just think it is very good at administrative tasks like that. I believe your bill calls for appointment by the circuit councils?
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Correct.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And I share some of the Chiefs misgivings about that. They were not expressed the same way I think he expressed them, that it could make the new court a kind of a United Nations where each of the circuit judges is primarily loyal to his circuit or her circuit and the doctrine of that circuit rather than being an independent member of the new court. I think in time and, goodness knows, it is obviously going to take time to ever get the intercircuit tribunal passed, we are going to have to recognize it as a new court with judges appointed by the President and confirmed by the Senate, and not as a borrowing proposition.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. IS it your belief, Judge, that that court should be a totally separate court of other judges or should it be—I mean new appointees, or should it be existing circuit court judges appointed to that by the President?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is my view that in the long range it ought to be new judges appointed. The judges of the Court of Appeals for the Second Circuit did some careful thinking, and I remember reading their submission to—I do not know whether it was your committee or Congressman Kastenmeier's committee. And they came up with what I thought some very reasonable objection to the proposal as they understood it. And one of them was if the court is just temporary, the court is never going to establish the sort of reputation for excellence that would make its decisions followed by the courts of appeals. And it is going to be controversial with the courts of appeals anyway. I think that is a valid point, that we are going to have to set up an institution that does have prestige and the dignity of brand new judges.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. YOU think this is worthwhile doing it on a temporary basis to see whether the need is really there? 175
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that would be a perfectly sensible way to approach it, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I thank you, Justice. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. I think we will take a 10-minute break now. We will be in recess for 10 minutes. [Short recess.] The CHAIRMAN. The committee will come to order. The distinguished Senator from Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you, Mr. Chairman. Justice Rehnquist, you stated in your confirmation hearings when you were up here to be Associate Justice, and that was back in 1971, that you would be able to separate your personal views from your role as a Justice when interpreting the Constitution. Now that you have been on the Bench for quite awhile, do you think that personal philosophy and judicial decisionmaking can be separated?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not suppose they can be entirely separated, Senator, since judges are human beings like everybody else. But certainly one mark of a good judge is the extent to which he is able or she is able to separate personal philosophy from judicial decisionmaking.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. To that extent, do you believe that you have been successful in separating these roles as a Supreme Court Justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think I have.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. On another point dealing with the legislative veto, I happen to be chairman of one of the subcommittees of this committee, and I have long been interested in issues dealing with the powers delegated to Federal agencies by the Congress and the extent, of course, to which Congress ought to be able to review regulations issued pursuant to that delegation of power. And I speak specifically then of the veto and an important means this is for Congress to check overreaching administrative agencies. Now, you dissented in the Chadha case, though you did not join, as I understand it, Justice White's dissent for he generally defended the use of the legislative veto. Now, I do not expect that you would respond to the constitutionality of specific legislative proposals pending before the Congress, and I appreciate your reluctance to discuss past cases as well. But I would like to ask you, if I could, along this line what your personal opinion of the concept of a legislative veto is and do you find anything repugnant in it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I have some reservations about answering that question, and let me tell you what they are. I think that when you have a nominee here who has not much of a prior judicial record, so that it is very difficult to figure out what their judicial philosophy would be. Perhaps the only way the committee has of getting at the nominee's possible judicial philosophy is to ask about personal views on things, thinking that no judge is going to completely succeed in separating personal views from the way they vote. 176 But, in my case, I have been on the bench for 15 years. As you point out, I voted in the Chadha case. I did not join the Chief Justice's opinion. I dissented. But, likewise, as you point out, I did not join Justice White's opinion. I am very loath to give you, and I think I feel perhaps constrained that I cannot give you at the present time, but I think I did work with it when I was in the Office of Legal Counsel before I ever went on the bench, and I remember thinking at that time, as something that had kind of been worked out between Congress and the executives in a way that, you know, might raise considerable legal questions, but it struck me that, as a practical matter, it worked quite well.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, do you personally feel it is a responsible way for Congress to deal with perceived unaccountability of agencies?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I do not feel I can answer that now in view of the Chadha case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Thank you. I respect your position that you are in, and so let me go on to something else. Some jurists have suggested that the legislative history of a law is to be given little weight in interpreting the respective law. Generally, how much weight should legislative history be given by the courts when interpreting law?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the cases that have come down since I have been on the Court have pretty well established a general approach that, first, you look to the works of the statute that Congress enacted. And if those words are clear beyond per adventure of a doubt, in applying to the particular fact situation before you, you do not go to the legislative history to support any contrary claim. But if there is ambiguity in the application of the words Congress used to these, then you can go to the legislative history to try to clear up the ambiguity.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. During his tenure, Chief Justice Burger spoke out frequently on judicial administration issues, such as lawyer advertising, frivolous lawsuits, and the quality of lawyers admitted to the bar. What issues are you as Chief Justice going to take a leadership role on in your public pronouncements as head of the Federal judiciary?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, I like to think when I do make those pronouncements, I will know more about those issues than I do now. Just because I have not been Chief Justice and have not really organized my thinking. But I think one of the most critical things in American society today is the cost of litigation, and the implementation in some places, but not everywhere, of alternative means for dispute resolution, the tremendous delays that people encounter in getting a dispute settled. I think back to the time when I was in practice, when things were not nearly as congested and the courts were more accessible in the sense that you could get a case tried in 5 or 6 months if you filed it. And some of my clients, we were in a four lawyer firm, and some of our clients were quite small people. And I think to say a material man's lien claimant, a person who put some—either some 177 labor or some material on a construction job, the contractor does not pay. So he has got a claim for $15,000 or $20,000 against the contractor. You walk into any good sized law firm nowadays and they will tell you no, we just cannot handle your case. It would cost you more than $20,000 to have us litigate it. Now, some people have kind of scoffed at alternative dispute settling means as kind of a denial of access to the courts. But I know from some of the clients I had back in practice, they wanted their disputes settled. They would have even accepted a negative decision sometimes. But the idea of paying nearly as much as what is involved in order to get a judgment was what really angered them. And, you know, I think that is a real concern that I hope to look into as Chief Justice.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, those are very worthy areas to work in. And if you can accomplish some progress in that area, you will be making a very real contribution. Let me ask a little bit about the workload of the Court and some suggestions that have been made for maybe reducing that workload. Would you favor legislative changes in the statute on diversity jurisdiction as a way to reduce the Court's workload?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am reluctant to comment on statutory things except in the area that you picked out, which seems to be so closely related to the way the courts function, that I could not be criticized for responding. I have mixed feelings. I think analytically diversity jurisdiction ought to be repealed. It exists solely by reason of the fears in the early days of the United States that a State Court judge in Iowa could not be fair to a litigant from Missouri. And I simply do not think that there is much ground for that any more. But I have talked to people around the country, and the Bar Associations in the West, I was looking up for Senator DeConcini, because I think the Arizona Bar Association and many of the Bar Associations in the small Western States have taken the position they do not want diversity repealed. Perhaps Iowa has too. And when you start asking them why, they like the option of having two courts. And they generally have the feeling that because the State Court judges are paid less than the Federal judges, that the Federal judges, by and large, are going to be somewhat better judges. And I have also talked to a number of the judges in the lower Federal court, the courts of appeals, and the District Courts, and a lot of them, although they concede analytically diversity jurisdiction should be repealed, they said I would rather try a diversity case than a title VII case, or some other kind of a statutory case because it is more interesting. Or it is the only chance I have to see 90 percent of the lawyers that come into my court is diversity jurisdiction, because that is the only kind of cases that most lawyers in the State have. So I am not sure that you can just say analytically it ought to go contrary to the wishes of a lot of the judges and a lot of the people who think they are benefitting from it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. At the very least, I hear you saying it does not serve the practical purpose it did at one time in our history. 178
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think it does, although people have argued with me about that too.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Some Supreme Court historians have criticized the Burger Court for failure to establish a common body of law in many areas. They might pick out criminal procedure and affirmative action as a couple. The criticism is that the Supreme Court has qualified its holdings too much to fit the specifics of each fact intensive situation. How important do you believe it is that the Court attempt to lay down bright line rules? Let me follow up with whether or not you would be steering the Court down such a path in your position as Chief?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think I would have much success in steering the Court down any path that my colleagues did not agree with me on. And on the bright line rules, there is no question but what the typical practicing lawyer, the typical trial judge is going to get more satisfaction out of a case enunciating a bright line rule than out of a case which has a lot of ifs, ands and buts in it. And yet when a case comes to our Court, in some cases we will find we have laid down a bright line rule that sounds great. Then it comes back on slightly different facts, and some of the people who joined it before say, well, gee, if I had known it was going to be this kind of a thing, I would not have subscribed quite that broad language, and it ends up qualified. I think that, Senator, is the nature of the judicial process.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Reportedly you have said that you agree with Chief Justice Burger that the Supreme Court has built too high of a wall between separation of church and State. Is this an accurate characterization of your views on this aspect of the First Amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is an accurate characterization of the views I expressed in my dissenting opinion in Wallace against Jaffrey last year, yes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Now, referring to the Jaffrey case, you stated that the establishment clause should extend no further than the prohibition on establishing a State religion. In your personal view, what exactly are the boundaries of the establishment cause in regard to religious activity in State-controlled institutions?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, with all respect, I feel that since this is a case that—the kind of issue that constantly comes before the Court, I must respectfully decline to answer.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And do not smile when I refer to the ninth amendment. I would like to focus on that or the protection of unenumerated rights for just a minute. No specific right is actually mentioned in that amendment, as you obviously know. Exactly what specific rights do you think the framers intended to protect under this amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, you are going to find me obnoxious, I am sure, because there was at least a concurrence, I think, in one of the contraceptive cases that said there was a penumbra of rights that perhaps flowed partly from the Ninth Amendment, and just 179 because we recently had a case of Bowers against Hardwick, I forget whether the ninth amendment was directly involved, but it was the same type of case. I just feel I can't answer as to my personal views because I have participated in some cases and they are bound to come again.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, do some unenumerated rights exist that have not yet been defined?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly—that have not yet been defined?
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the only correct answer to that is that it may develop, as future decisions come down from the Court, that just what you suggest will happen. But it simply can't be predicted one way or the other profitably now.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. What is your view on what the framers intended when they drafted article III, section 2, where the Supreme Court has appellate jurisdiction, where it says "with such exceptions, and under such regulations as the Congress shall make"? In other words, do you think that it was intended for Congress to have authority to actually restrict Supreme Court jurisdiction?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I know there have been bills to that effect pending in Congress. There is a case decided right after the Civil War, and let me think
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. The McCardle case.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Correct, right, ex parte McCardle—where the Court seemed to say that Congress did have that power. In fact, it didn't seem to say it; it said it, I think. But then there has been a great deal of, I think, quite hostile criticism of the McCardle case, not from our Court, I don't believe, but from scholars and commentators. And just because that kind of bill has been pending here, again, I don't feel I can express a view on the authority of Congress under article III, section 2.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLSY. What is your opinion of television coverage of the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Under television coverage in the Supreme Court, if the lights shine in the eyes of the lawyers, the way these lights shine in my eyes, for the sake of the lawyers I would be against it. I have a feeling—and I thought about that, Senator, because I sat back there for a couple of hours this morning, and if I were a lawyer arguing before the Supreme Court, with these sort of lights on me, trying to make contact in my argument with nine Justices, I would be kind of unhappy. If I were convinced that coverage by television of the Supreme Court would not distort the way the Court works at present, I certainly would give it sympathetic consideration. But if it meant a whole lot of lights that would disturb the present relationship between lawyers and judges and arguing cases, I don't think I would be for it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you support television coverage of Court proceedings?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I participated in the Chandler decision that the Chief Justice wrote a number of years ago, saying that where Florida had provided that, there was nothing in the Federal Consti- tution that prevented it. So I suppose you would say from that that each State is free to chose for itself.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. I'm done with my questioning, and I see we have a vote on.
Staffer
N/A
()
Mr. SHORT. Yes, sir, if we could recess.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. DO you want me to recess?
Staffer
N/A
()
Mr. SHORT. If you would, please.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. We will recess the committee meeting until the chairman returns after the vote on the floor of the Senate. [Whereupon, the Committee was in recess.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will come to order. The distinguished Senator from Vermont.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. I appreciate the chairman's indulgence while we had to go and vote. Judge Rehnquist, we discussed earlier the fact that you spend part of the year in my own State of Vermont—that's in Greensboro, VT, is it not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, it is, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And am I correct that you have—that you and Mrs. Rehnquist actually have a summer home there?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, we do.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. When did you purchase that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. In 1974,1 believe.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Justice Rehnquist, I am told that you have a warranty deed, the normal form of transfer in Vermont, and gave back a mortgage deed. But in the warranty deed there is this sentence: No fee to the herein conveyed property shall be leased or sold to any member of the Hebrew race.' Are you aware of that covenant in your deed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not at the time, Senator. I was advised of it a couple of days ago.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Did you not read the deed that you got on your property?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly thought I did, but I'm quite sure I didn't note that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. This is not a very lengthy document, is it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I don't recall, not having it in front of me. I relied on a lawyer in St. Johnsbury to close the title.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU signed the mortgage deed back?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I'm sure I signed whatever deeds were necessary to sign.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would you be surprised to hear that the deed is basically a boilerplate printed deed, but then the items of description of your property and this restricted deed are typed in?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I wouldn't be surprised.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you do not recall reading that No fee to the herein conveyed property shall be leased or sold to any member of the Hebrew race"?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I don't.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And you just heard about this 2 days ago?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What was your reaction when you heard about it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was amazed. 181
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. AS a lawyer, how do you feel about that language?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think it's unfortunate to have it there. But it's meaningless in today's world, I think.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Why is it meaningless?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The covenant is unenforceable under Federal constitutional law and I think under Federal statutory law.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I should note for the record that it is also illegal under—or it's invalid under Vermont law, title 13, section 1452, VSA. So it is your opinion there is no legal effect of that being in your deed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, certainly.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Will you do anything to have that language removed from your deed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Did I do anything
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO; would you—will you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I don't know exactly what the point of having it removed from the deed would be, other than to get rid of something that is quite obnoxious, because it's unenforceable now. Is there some procedure under Vermont law where one could have it removed?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I would assume you could go through a straw man and a quick claim back. I mean, do you not see a question of appearance, if it is noted that the Chief Justice of the U.S. Supreme Court has a restricted deed in his property?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Yes; I certainly do. And if there is a procedure under Vermont law where one could avoid it or get rid of it, I would certainly go through it.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. I must admit that I was also surprised to see that, because in my own experience of years of private practice, I never once saw a deed go through with a restrictive covenant. In fact, in our law office, I can't imagine even representing somebody who would want to put that in. But I appreciate and accept your statement that you would move to get rid of it. Mr. Justice, in 1971, you gave a speech before the National Conference of Law Reviews, and you said you did not believe there should be any—and I quote—"judicially enforceable limitations on the gathering of this kind of public information by the executive branch of the Government." And "this kind of public information" you were referring to was the collection and storage by law enforcement personnel of public information about individual Americans. Do you still hold that same view?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. You're talking about simply viewing people in public places?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. YOU said there shouldn't be any judicially enforceable limitations on the gathering of public information by the executive branch of the Government. I understood your speech to say that you could not think of any kind of judicially enforceable limitations, that I would assume there might not be any cases 182 where that would be possible, to have judicially enforceable limitations.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think at that time I perhaps wasn't aware of a case that I later became aware of, and it must have been shortly afterwards, because I think a similar question was asked in my 1971 hearings. There was a case decided in the Federal court in Chicago, I think, that suggested that if there was an element of harassment about the information gathering, that that would be judicially enforceable. I certainly agree with that case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What about the advent of modern computer technology, this ability to prepare and collect and build up enormous, almost an Orwellian dossier on people; does that change your views in any way?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, if we're talking about the Constitution, I'm not sure that it does. But it seems to me that's what we have to count on legislatures and Congress for, to regulate where regulation is necessary.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. At the Constitutional Rights Subcommittee hearings in 1971, when you were a witness for the Department of Justice, you may recall—there's been a lot of discussion since—about Senator Ervin discussing the incidents where Army intelligence officers are pretending to be photographers and took pictures of individuals at antiwar rallies and then compiled dossiers on them. You testified at the time the activity was a constitutional stature, but you are saying that this activity, while perhaps wrong, did not violate the first amendment rights of those individuals at the rallies. Do you still feel that way?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I am reluctant to answer that question because we have had a couple of cases involving surveillance of people in public places come before the Court, the Knotts case and in the Carroll case. They weren't precisely in this context, but it seems to me that I really have to draw back there.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me ask you this. Suppose the person that is carrying out the investigative activity, instead of a member of the executive branch or elected official, rather than photographing antiwar protesters, he or she is photographing black voters entering a polling place, with voters claiming they're being intimidated by that activity. If the black voters brought a case in Federal Court, would there be a justiciable controversy under the 15th amendment in your mind?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I honestly feel that I can't answer that question. It's the kind of thing that might come before the Court.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, let me go into an area that did come before the Court and involved you, and that's the Laird v. Tatum case. You had refused to recuse yourself in that case. At the time when you refused to recuse yourself, you acknowledged that you had served in the capacity of an expert witness for the Justice Department during congressional hearings that concerned, among other things, domestic military surveillance. During those hearings you made statements concerning the Laird case which was pending then in the court of appeals, and you said they were merely person- 183 al interpretations of the Constitution. I think I'm accurately describing the situation. Now, here is a quote from the exchange with Senator Ervin. Senator Ervin said, You do take the position that the Army or the Justice Department can go out and place under surveillance people who are exercising their First Amendment rights, even though such action will tend to discourage people in their exercise of those rights? Mr. REHNQUIST: Well, to say that I say they can do it sounds either like I'm advocating they do it or that Congress can't prevent it, or that Congress has authorized it, none of which propositions do I agree with. My only point of disagreement with you is to say whether, as in the case of Tatum versus Laird, which has been pending in the Court of Appeals here in the District of Columbia, that an action allowed by private citizens to enjoin the gathering of information by the executive branch, where there has been no threat of compulsory process and no pending action against any of those individuals on the part of the Government. Were you saying at the time of those hearings that the Laird case presented a nonjusticiable controversy?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, the transcript of the hearings would certainly be the best version of what I was saying at the time. I don't recall it now, at the time, but I am sure the transcript you're reading from is accurate.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Assuming that that is accurate, doesn't that say, in effect, that you are concluding that the Laird case presented a nonjusticiable controversy?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The term "nonjusticiable" troubles me because it could be taken to mean something that, although there is a constitutional violation, the courts can't remedy it. I don't think that's what I was meaning to say. Again, just trying to interpret portions of the transcript you read, I think it certainly could be interpreted to say that, under those circumstances, there was no constitutional violation.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But weren't you saying, as an expert witness, the same thing that you then handed down or didn't vote on in the decision in Tatum v. Laird when it came to the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I want to make sure I understand your question. You're not talking about my remark about Tatum against Laird as a case during that hearing, but you're talking about the statement I made about the more general proposition?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. NO; I'm talking about your statement about Tatum v. Laird. You discussed Tatum v. Laird in the Ervin hearings. You subsequently voted on or were the ruling opinion in Tatum v. Laird—in fact, it could be said that you or any of the five who were in the majority would be the swing vote in that case. You had been asked to recuse yourself and you said there was no need to recuse yourself, and yet you discussed it in the form of an expert witness before the Ervin hearings before. What I'm saying is, had you not in those hearings, in effect, stated what would be the decision, your decision, in Tatum v. Laird, and if that was the case, should you not have recused yourself in Tatum v. Laird?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Should I have recused myself?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yes. 184
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS you know, Senator, I wrote a fairly lengthy opinion explaining why I didn't think, under the law applicable then, I ought to have to recuse myself, because I didn't think the law required that simply the public statement of a view prior to going to the bench foreclosed one's consideration of the issue, even though the same view was involved in a litigated case. I realize people might disagree with me, but that was the position I took in that case.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. DO you have any second thoughts about that position?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I never thought of it again until these hearings, to tell the truth. I have gone back and read the opinion, and I think, under the statute as it was changed after Laird v. Tatum, I think there would be probably a very strong ground for disqualification. But I didn't feel dissatisfied with the way I had behaved under the statute as it then stood.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In your memorandum you said that you felt you were not disqualified based on the statute then—in other words, prior to being amended, the action you just referred to. But you said also you would not give separate consideration to the ABA standards of judicial conduct, saying that you didn't read them as being materially different from the standards in the congressional statute. But then, a couple of years later, and before the New York City Bar, you referred to those standards as being more stringent.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Justice Stewart, who was a good friend of mine, I remember, after I wrote this opinion—you know, it may have been months afterwards—he had been on the drafting committee of the ABA standards, and he told me that in some respects he thought my comparison of the ABA standards and the statutory standards was incorrect and that the ABA standards had intended to be more stringent.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Looking at the ABA standard, if that was what you had used as your guide, would you have recused yourself?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I just can't put myself back in that position, Senator, not having the ABA standards in front of me. I really just can't answer.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me ask you this. This would not be a subjective thing, but let me ask you an objective question: Did you have personal knowledge of the disputed evidentiary facts in Laird?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. When you were in the Justice Department, did you have knowledge about the military's domestic surveillance policy?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I had—if you would consider information obtained in the course of preparing for the May Day demonstrations, which did involve some military activity, I suppose you would say yes.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But you deny, you were not aware of the evidenciary, or the disputed evidenciary facts?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. In 1975, Senator Ervin wrote a letter, saying that you should have disqualified yourself from participating in that 185 case because you had acted as counsel for the Defense Department in a hearing before the Senate Subcommittee on Constitutional Rights. Are you aware of that letter?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I am not.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I will ask staff to make sure a copy of the letter be given you. Once you have had a chance to read it, then I would ask, Mr. Chairman, to have unanimous consent to have the letter included in the record in connection with the testimony and my questions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection. [The letter follows:]
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Justice Rehnquist, on another area, the Chief Justice is known for his adamant coverage to television coverage of Supreme Court proceedings. Knowing what it has done to the cave of the winds over here, now that we have had it for a few months in the Senate, I can somewhat understand some of his feelings. But let me ask you: As Chief Justice, what would your view be of television coverage of arguments, or proceedings before the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I responded to Senator Grassley a little
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am sorry. I missed that.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST [continuing]. That if the lights came down in the face of the lawyers in the Supreme Court, the way the lights come down on the face of the witnesses here, I would have real reservations about it. Because our operation is a fairly small one; it is fairly intimate between the lawyers and the judges. If television coverage would not distort the way the Court now operates, I would certainly give it sympathetic consideration. But if it turns out to be just to make it a totally different ballgame, I would have real reservations.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. SO that you would not have any objection to it if they are able to put, some way of putting the coverage in there in an unobtrusive fashion without these lights?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Unobtrusive, in the view not of the television people, but of the Justices.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. That is what I mean. Having come here and seen how these lights work, I now have more sympathy for some of the people who had a chance to meet me in less than favorable circumstances, when I was a prosecutor, in lineups. Thank you. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The distinguished Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Mr. Justice Rehnquist, the relay questioning which you have been subjected to here today, is somewhat reminiscent of some Supreme Court decisions, Ashcraft v. Tennessee. I think it may be that defendants in proceedings have more rights than nominees, even if they are Associate Justices of the Supreme Court. The questioning has gone on by relay, longer than I think the Supreme Court precedents would permit that kind of drilling by district attorneys or by police detectives. But we are proceeding to try to move ahead as fast as we can. Let me start with the very basic proposition that I believe you have already responded to, but one that I think is important to put on the record. And that is the binding precedent of Marbury v. Madison, 1803. That the Supreme Court of the United States is the final arbiter, the final decisionmaker of what the Constitution means.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Unquestionably.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. SO that if the Supreme Court has ruled on a legal issue, the executive branch, the legislative branch, have a responsibility to observe the decisions of the Supreme Court of the United States on a constitutional matter?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I think they do. 65-95 3 0-87- 7 188
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Let me now turn to the subject of the jurisdiction of the Court, a question which is of great concern, and it bears upon the first issue as to the binding authority of the Supreme Court of the United States to interpret the Constitution. There may be some effort to undercut the final authority of the Supreme Court by saying that the Court has no jurisdiction on a given issue. If the Court cannot interpret the Constitution or apply a remedy, then the Court realistically is unable to carry out the function of constitutional interpretation, as I think Marbury v. Madison requires. Do you think that the jurisdiction of the Court can be limited, for example, on the first amendment right of freedom of speech?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, as you know, I am sure, as well as I, there was a case right after the Civil War, ex parte McCardle, that held that Congress could limit the jurisdiction of the Supreme Court; even require that a case which had already been submitted to the Justices for decision, be dismissed. Since that time, there has been a lot of scholarly criticism, criticism from commentators, something along the lines I think your question suggests. That this thing cannot just be allowed to sweep away the power of the Court to finally adjudicate cases. I know there have been bills pending here, in the last 2 or 3 years, testimony as to their constitutionality, and I feel I cannot go any further than that, for fear that that sort of issue will come before the Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Mr. Justice Rehnquist, I am very sensitive to the issue as to commenting on matters which may come before the Court. It seems to me, however, that when you deal with the issue of the ultimate authority of the Court to interpret the Constitution, which is bedrock in our society—I do not think you can find a more fundamental principle—that if you can undercut the authority of the Court, by saying that there is no jurisdiction, then Marbury v. Madison is really meaningless. As a lawyer of some 30 years standing, I think it is very important for the committee—and I think for the whole Senate—to really get an idea as to your judicial approach on an issue which is that fundamental, and that important.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, as you can imagine, I would like to oblige, but the fact that the issue is fundamental, and important, does not make it any less one that could well come before the Court. And I think that the approach I have to take is, in a case like that, I ought not to attempt to predict how I would vote in a situation like that.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, suppose the issue of Marbury v. Madison comes before the Court again. Suppose there is a challenge made by the President of the United States; that he asserts that he is separate but equal, and does not have to obey the decision of the Supreme Court of the United States. Have you already foreclosed that situation?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think this type of question, like most other questions that lawyers and judges deal with, has elements of degree about it. Whether Marbury against Madison is good law is something that—no one has challenged Marbury against Madison, 189 it seems to me, for a century, perhaps, you know, nearly two centuries. I do not think that the question you pose is quite the—in light of the McCardle case, is quite as totally free from doubt as Marbury against Madison.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, what is there to Marbury v. Madison, which says the Supreme Court makes the decision on constitutional issues, if the Congress can say the Court has no jurisdiction over a constitutional issue?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, there would certainly be some loggerheads there. It might put Congress at loggerheads with—I suspect it would—with the Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, that is easy. If the Congress is at loggerheads with the Court, the Court wins, as long as Marbury v. Madison is the law of the land.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, perhaps it is easy, Senator, and I realize the arguments you advanced are persuasive ones, but even if the question is easy, I do not think that permits me to indulge in speculation about its outcome.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Mr. Justice Rehnquist, I am sensitive to the issue about your not being asked to comment on cases which may come before you. But it seems to me, with all due respect, that a nominee for the Supreme Court should be willing to give his or her views on something which is as fundamental as the authority of the Court to decide constitutional issues.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I understand your position, and I honestly feel that I must adhere to my view that it would be improper for a sitting Justice to try to advance an answer to that question.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, let me carry it just a moment or two further. Beyond McCardle, in the case of United States v. Klein, decided in 1871, so it is an old case, the Supreme Court of the United States held unconstitutional a particular congressional statute limiting the appellate jurisdiction of the Supreme Court and the original jurisdiction of the Court of Claims. And I realize, Mr. Justice Rehnquist, that notwithstanding your extraordinary record of scholarship, that you cannot have all the Supreme Court cases in your head. Would the doctrine of United States v. Klein perhaps settle the question of the jurisdiction of the Court, making clear that the Congress could not take away the jursidiction of the Court, or do you still feel it is an open question which might come before you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, when I say open question, Senator, I do not mean one that is 50-50, or something like that, that are equally plausible arguments on both sides. Just it is a question not settled totally by a precedent, that could very easily come before us.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, between now and the time of my next round, if it is tomorrow, or if it is today, I am going to go back and do some more research on the issue of appropriate questions to ask, because this matter is of great concern to this particular Senator. In effect, you say there is an open question as to whether the Congress can limit the jursidiction of the Court to decide a first amendment question of freedom of speech or freedom of press. Is that a fair statement? 190
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I think it is.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I would find that of considerable concern, if the Congress can do that. The Congress did
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I would find it of considerable concern, too, Senator. But that does not make me feel that because I would feel it was wrong, or mistaken, that one would automatically come to the conclusion that it was unconstitutional.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there are certain principles which, at least in my view, are so fundamental as to require a statement, or an understanding as to where a person stands. I understand the competing consideration of not asking you to discuss or comment on cases which may come before the Court.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would certainly, you know, reconsider my answer—I do have the feeling, and I may be wrong, that Justice O'Connor, in her confirmation hearings, was asked similar questions, and I believe she took much the same position that I am taking.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I do not believe she was, but I will check it. I was present at Justice O'Connor's confirmation hearings, although not for as long as Justice O'Connor was present during her own testimony. I am concerned about this issue because there is a move, through the route of limitation of jursidiction, as I see it, really, to undermine Maibury v. Madison. That is why I pressed it to the extent that I have, and I would ask you to reconsider it. We will take a look at Justice O'Connor's testimony and we will take a look at some of the precedents on the appropriate scope of questioning in other proceedings, and follow up on it. Mr. Justice Rehnquist, on the issue of the incorporation doctrine, that is, the extent to which the 14th amendment of the U.S. Constitution, through its due process clause, picks up prohibitions within the Bill of Rights, I have noted your opinion in Trimble v. Gordon, where you express some doubt as to the first amendment being fully incorporated in the due process clause of the 14th amendment. And I would ask you, if you recollect the case, what your position is on that issue?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not recall it in Trimble against Gordon but I remember writing to that effect in a couple of other cases: the Buckley against Valeo case, and I think the First National Bank of Boston versus Valati. And the position I took there, and I think I took it without any support from my colleagues, but it was following a view held by the second Justice Harlan and by Justice Jackson, for whom I clerked, and I think by Justice Holmes at one time—was that the freedom of speech and press clauses were directed against—by their terms, directed against Congress. And that the 14th amendment carried over the general prohibitions of those clauses against the States, but not with, necessarily, the same specificity. And in Buckley against Valeo, I wrote it, a partial dissent from a rather small part of the opinion, because I expressed a view there, that whereas the States had, if there were going to be elections at all, there had to be State regulation of the ballot process, when you vote, how you get on the ballot, and that sort of thing. And there were precedents from our courts saying that there was a fair 191 amount of latitude on the part of the States to favor a system which favored the two major parties—the Democrats and the Republicans at the expense of splinter parties. And the position I took in Buckley was that that was perfectly good for the States who had to regulate ballots, but that the Federal Government was more restricted by the first amendment, because if there were going to be elections the States had to step in and establish the process. The Federal Government did not have to regulate the things it regulated in Buckley, in order for elections to take place at all. And so I felt that the Federal statute—and expressed the view in the dissenting opinion—discriminated, unconstitutionally, in favor of the Republican and Democratic Parties against the splinter party.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Mr. Justice Rehnquist, as to the scope of the due process clause—of course the due process clause of the 14th amendment says nothing about freedom of speech. I have read your statements on the issue, where you have said that it is a matter of trying to reconstruct the intent of the framers at the time. And it is a very difficult job, obviously, to undertake that. But how do you, in interpreting the breadth of the due process clause, come to that kind of a delineation, when you are seeking the intent of the framers of the 14th amendment? How can you separate off first amendment speech rights, how can it really be severable?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, if you are looking at the language of the due process clause, as I recall it, Senator, it says: "No State shall deprive any person of life, liberty or property without due process of law." And the question then becomes, you know, as you know perfectly well, what is included under liberty, or, what provisions from the Bill of Rights are carried over by that language? And I would say that, from the language itself, it is not evident that any particular provisions are carried over, not inexorable; but if you look at the word liberty, and you wonder what kind of liberty are they talking about, surely one liberty was freedom of speech, freedom of the press. So, it seems to me it is quite natural to carry those over. But I do not know that the language of the due process clause, nor necessarily, what I happen to recall about the debates, and that sort of thing, necessarily indicates that the full rigors of the first amendment as applied to Congress, necessarily were to be applied to the States.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, the difficulty with that, it seems to me— and I am just probing to get your line of reasoning on it—is that it is so speculative. If you are picking out a portion of the first amendment, the freedom of speech—if you seek to avoid putting your own personal views, as they arise in a case, which I know you have testified in the 1971 proceedings, that you are very much opposed to—how can you really separate the various aspects of something as fundamental as speech? Isn't it really all in there? Once you say that the due process clause incorporates freedom of speech under the first amendment, isn't that all there is to it? How can you separate any of it out as not incorporated? 192
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, if you say that the due process clause incorporates and makes applicable against the States, the first amendment in haec verba, so to speak, the question is answered. If it does that, it does carry it over in precisely the terms that it is applicable to Congress against the State. But I think the argument on the other side, is that—and I think this is made very well in Justice Jackson's dissent in the Beauharnais case—is that there was a good deal of understanding of what freedom of speech meant at the time the Constitution was adopted, that was undoubtedly applicable against the States, but that there were perhaps slightly more latitude allowed to the States than were allowed to the Federal Government. Justice Harlan took that position in his opinion in the Roth case. That the States could proscribe certain kinds of obscenity but that the Federal Government could not.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Justice Rehnquist, at the risk of asking questions which may come before the Court, I think these are pretty well established principles, but, there is considerable concern on the part of this Senator about the applicability of the due process clause of the 14th amendment to certain fundamental liberties, as embodied in the first 10 amendments. And I would like to ask your view as to the inclusion of the free exercise of religion in Cantwell v. Connecticut. It was a unanimous opinion. Does that matter rest, so far as you are concerned?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Most certainly, yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And the establishment clause in Everson v. Board of Education?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I think I criticized the Everson case in my dissent in Wallace against Jaffrey, not for the result it reached at all, but for its use of the term "wall of separation between church and state," which I felt was simply not historically justified.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, the red light is on. May I have leave to ask one final question, Mr. Chairman?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And I will come back to this line later. And this is somewhat less philosophical or constitutional than the matters I have been discussing with you, but there are some people very interested in this in Pennsylvania. Mr. Chief Justice Burger said that he would take the Supreme Court for a sitting in Philadelphia in 1987, where the Supreme Court once sat, probably still should. My question to you, Mr. Justice Rehnquist, is whether you would honor that commitment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would certainly make every effort.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you. Thank you very much, Mr. Justice. Thank you, Mr. Chairman.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Delaware was the first State, Mr. Chief Justice. We would like to talk to you about that.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Several, or two have questioned you about TV in the Supreme Court. You mentioned the lights. I would suggest that you go down and look at the Supreme Court of Alabama and see how they have arranged the lighting in regards to TV coverage. I do not think you have any conflicts of fair trial, free press issues, that would arise with an appellate court argument, and I think 193 that sometimes maybe the U.S. Supreme Court can learn from the State courts. I think it might be interesting to see how it has worked there. It has worked quite well. I want to pursue a little bit more about this issue that has arisen: the role of the first amendment as opposed to the role of an Associate Justice, that we have outlined either through questions to you, or to other witnesses relative to that role. The leadership on the Court is one, and the leadership of the entire judicial system is another area. On the Court, there has been a good deal written about a consensus builder, the first amendment and the Chief Justice as a consensus builder. I have read with interest a speech that you made, which is published in Constitutional Commentary, the summer issue of 1985, that was at the University of Minnesota Law School, where you were the jurist-in-residence there in October 1984, entitled, "Presidential Appointments to the Supreme Court." In it you trace somewhat the history of various Presidents as they had the opportunity to appoint a good number of the members of the Supreme Court, and, in doing so, attempted to appoint Justices of their philosophy and ideology. Two come to mind from reading it: Lincoln and Roosevelt. There were a number of factors that took place. For example, with Roosevelt, a number of deaths took place, so really, they did not live to fulfill what he perhaps had as his desire to the way they would interpret the Constitution and the statutes that were passed by Congress. Then in your article, you say that a second series of centrifugal forces is at work within the Court itself, pushing each member of the Court to be thoroughly independent of his colleagues. The Chief Justice has some authority that Associate Justices do not have, but this is relatively insignificant compared to the extraordinary independence that each Justice has from each other Justice. And it goes on in the article, and then, in the closing paragraph, you indicate that, "An appointment to the Supreme Court is immediately beset with institutional pressures," which you had described, and he identifies more and more strongly with the new institution of which he has become a member, and he learns how much store is set by his behaving independently of his colleagues. I believe these institutional effects, as much as anything, have prevented even strong Presidents from being any more than partially successful when they sought to, quote, "pack in," unquote, the Supreme Court. Now those unusual pressures that are within the Court to push a member of the Court to be independent of other Justices, would you elaborate a little bit more on that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I will try to, Senator. One occasionally, looking back at times where the Chief Justice has changed, whether it was Hughes to Stone in 1941, or Stone to Vinson in 1946, and you will read press accounts, that the new Chief Justice is expected to "harmonize" the Court and resolve the disputes. He will clear up these five to four decisions, because he is a great negotiator, and that sort of thing. 194 Most predictions have just never come true, for the very reasons, I think, that you stated. That if
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, they are really what you stated. I was quoting you.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, OK, what I stated, Senator. If the President appoints a Cabinet member, the President has a great deal of authority over the Cabinet member. If the Cabinet member does not do what the President likes, the President can fire the Cabinet member. But the authority of the Chief Justice over the Associates is just very, very minimal, and you get no kudos from the people who are watching your performance—the law reviews, the bar associations, and that sort of thing—for voting with the Chief Justice. There is just nothing ever said about, you know, let's get one for the Chief.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. DO one for the Gipper. For old Burger, do one.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The Chief does not correspond to the Gipper, at least in the eyes of Associate Justices, except in those rare situations like Brown, or the Nixon tapes case. And there I think there is a little of that. But generally, each Justice wants to be regarded as totally independent, and you are praised in law reviews, if you are regarded as quite independent of everybody else, and if people vote together. You know, there is the Minnesota twins, or something like that, or the Arizona twins, or something like that. It is regarded as something of a stigma to vote regularly with someone else. My own opinion is it should not be, but nonetheless, the fact that it is perceived that way produces those sort of pressures. Not to join up with any alliance, not to be regarded as carrying water for the Chief Justice, or any other Justice, but just being totally your own person.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW there is the other role of the Chief Justice, his function as a leader of all of the judicial systems in the United States. As a leader of the State judicial systems, that is more as a symbol. But nevertheless, I think Chief Justice Burger has been of great encouragement to the State judicial systems to improve. He also has been instrumental in calling for the creation of certain organizations and bodies. One is the National Center for State Courts, which he advocated, I believe in a speech at Williamsburg in 1971 when the president was at Williamsburg at a first conference of the judiciary. Chief Justice Burger also was instrumental in calling for the creation of an institute of court management, which has trained court executives, whom now you have in the Federal judicial system, certainly at the circuit level—Court administrators. He was instrumental in what Congress finally passed as the State Justice Institute, which is to be of some assistance to State courts. There is the work that the Chief Justice has done by encouraging judicial education among all judges and all supportive personnel in the State justice systems, particularly the National College on the Judiciary and the American Academy of Judicial Education. He has encouraged and spent a lot of time on some of tjiese organizations, visited various State courts, and also developed or encouraged State organizations like the National Conference of 195 Chief Justices, the National Conference of State Court Administrators, and others like it. So he has had an impact on the State judicial systems, and has been, in my judgment, very beneficial to them; and they have, as a result, been very helpful. While this is not a statutory duty, it is rather, an extraordinary effort on his part, to try to improve the system of justice. To me this is an area that, I hope, if you are confirmed, or whoever is the new Chief Justice of the United States, will endeavor to carry on, and to do those things because they are extremely important in my judgment.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I unreservedly agree with you, Senator. I do not think the State courts or State court judges have ever had a better friend in the Office of Chief Justice than the present incumbent. I like to think that while perhaps not having all the innovative capacities that the present Chief Justice has, I am not sure that there is need for those with all the institutions that he founded. If I am confirmed I will at least follow in his footsteps, and see to it that those institutions work.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In addition to being the Chief Justice of the Supreme Court, and the internal workings of that Court—and I do not endeavor to minimize that—but I think, in directing this, you are being nominated for Chief Justice, regardless. Whether you are confirmed or not, you will still be on the Court. So I think that there is some distinction, and I hope we have brought that distinction out and focused on that issue. You, of course, will also be the head of the Judicial Conference of the United States, which is in effect a body that has certain rulemaking power, certain powers of recommendation pertaining to legislation, and reviewing legislation that affects the courts. The Chief Justice appoints the chairmen, members of the committees, including the administration of criminal law, court administration, operation of the jury system, rules of practice and procedure. The Chief Justice oversees the administration of the bankruptcy system, judicial ethics, administration of the magistrates system, and others. In addition to this, the Chief Justice also chairs the Federal Judicial Center which is largely the research, training and educational arm of the Federal court system. The administrative office works under the direction of the Judicial Conference. Then there is the role as the building manager of the Supreme Court building. Now what is your intention relative to these types of endeavors? Are you interested in trying to work in these capacities, with an idea of improving the Federal system of justice, and the various duties that are called for by those specific functions and specific responsibilities?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I am interested in working in those areas but I do not think perhaps all of them equally. I certainly would have to find out a great deal more about it. The Miller Center, I know that you know this, Senator, at the University of Virginia, did a very substantial study on the Office of Chief Justice, and there are something like—I forget—50 or 60 statutory responsibilities that the Chief Justice has, which the Associate Justices do not have. 196 So I certainly do not know these by experience at all. I think one of the suggestions that was made by a number of the people who participated in this program at the Miller Center, was that the Chief Justice ought to give serious consideration to delegating some of these responsibilities and perhaps ask Congress to authorize delegation in some situations. Now I know that you introduced a bill a few years ago to provide for a chancellor, who would perhaps correspond partially to a 10th Justice or a Justice for administration, and I believe the provision was that that person would be a delegate of the Chief Justice to preside over the Judicial Conference. Certainly, I think that is an idea well worth exploring. I have a feeling that the consensus of these people in the Miller study seems to be so heavily on the side that there should be some delegation, that the Chief should not keep it all in his own hands. But I would give the most serious consideration to that, hoping that it would enable me to devote time, selectively, to the things that it seemed to me that I could not delegate.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I believe Chief Justice Burger has advocated a 10th Justice of the Supreme Court, which you would call an Administrative Justice, which we called in the bill that we had, the chancellor. That chancellor would have been a permanent member of a group, sort of like in a circuit tribunal, as a permanent judge. But now, this raises another question, which is a question that concerns me, and I think it should concern all members of the judiciary and Congress, which is the relationship of Congress and a Chief Justice, on the improvements in the machinery of justice. There is a certain feeling on the Court and feelings by Chief Justices that Chief Justices do not lobby, and there is a feeling up here that Chief Justices or Justices should not lobby for legislation. But there is a void as to how the needs of the courts and the opinions of those that are mostly concerned with it, how they are made known to Congress, and how Congress should respond to them. And in some court systems in the States, they have had a legislative liaison, in effect, that represents the court or represents the Chief Justice in making known and following legislation. Of course, the Chief Justice has an administrative assistant, but there is still a great reluctance in this field because of the separation of powers. It is an area that is not clearly defined; it is an area that is blurred. To me it is an area that needs some clarification, because certainly, we do not want the Court or the members of the Court or the Chief Justice to do anything that would interfere with their independence; and at the same time, there is probably some feeling that there ought not be lobbying over here in that sense, or to demean themselves in that manner. But still, at the same time, there is that area of how do you get things done for a judicial system? To me, I think that in my observation here, that there is a terrible void in this, and there needs to be some leadership and trying to improve the machinery of justice through congressional activity. We have had the Williamsburg Conferences and that sort of thing. It may have been fairly well-attended for a while, and then I do not believe we had one this year. But, if you become Chief Justice, would you be prone to be willing to sit down with the chairman of the committee here and attempt to work out some type of 197 machinery by which the overall court system and its needs would be given attention as to how we might try to take care of the needs of the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would regard it as a high priority, Senator. It seems to me there is a great deal of mutual interdependence, whatever you want to call it, between the Congress and the Federal courts. And that does not mean that one should obviously be lobbying the other for things that are not properly lobbied for, or that there be lobbying in reverse. But just the concept of judicial machinery that I think you told me was covered at the Williamsburg Conference—I think Senator Specter also said something like that—I do not think Congress with all of its other responsibilities and the Judiciary Committees of the two Houses, with all of their other responsibilities, are going to necessarily know in detail the problems of the Federal courts, or at least the problems that the judges of the Federal courts see to be those things, unless someone from the Federal courts comes and tells them about them. I would think the logical person to do that would be either the Chief Justice or some recognized delegate of the Chief Justice that the Judiciary Committees had confidence in.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, I know right now we have this question of the issue, and you have been asked previously about this Inter-Circuit Tribunal, and of course, it has been around now for a long time on the national court of appeals, starting with the Fraun Commission back in 1973, and then the Hruska Commission in 1973-75, I believe, making its reports, and the problems. You have outlined it pretty clearly with your analogy of the 150 cases over the history of the Supreme Court that we have, and that that is about the limit, but that we do it. Now, do you have any particular preference that you would like to express on what you might like to see concerning the organization of some type of relief structure for the Supreme Court, pertaining to conflicts and its heavy load?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I think it was Arthur Vanderbilt that said, "Judicial reform is no sport for the short-winded." And I think the Inter-Circuit Tribunal is proving to be that. Since the idea was first advanced more than 10 years ago, many respected students of the subject still have substantial reservations about it. And I have no doubt at all that if Congress would prefer to see a temporary Inter-Circuit Tribunal put in that that is the way it ought to go, rather than have no reform. But ultimately, and I think if Congress could be persuaded, not ultimately but very presently, there ought to be a new national court, frankly recognized as such, with judges appointed by the President and confirmed by the Senate, who would act as something of a junior chamber of the Supreme Court, to hear primarily statutory cases about which there are presently conflicts in the circuit. It seems to me that this new junior court, or national court of appeals, poses no threat at all to the Supreme Court, because the kind of cases that I envision the Supreme Court referring to them are not the controversial, highly-charged constitutional issues upon which the Supreme Court has staked out positions, but statutory cases where I think most of us would trust five or seven competent 198 judges to reach the same result as any other five or seven competent judges, with some differences, naturally. But it would not be doing the kind of, what I think of as the five-to-four work, five votes to four, that our Court often comes up with. I think the sooner that kind of a tribunal is in place, the better off the country will be.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Wyoming.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Mr. Chairman, I thank you, and let me yield to my patient colleague from Kentucky who has been here and would do something bad if I did not yield to him. [Laughter.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Kentucky.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Nothing other than faint. Never have I been sorry to see the Senator from Wyoming show up. Mr. Justice Rehnquist, harking back for a moment to the line of questioning by Senator Leahy with regard to Laird v. Tatum, during your 1971 confirmation hearings, were you questioned about prejudgment of issues as grounds for recusal?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I have been over the testimony of those hearings, and I am honestly trying to think whether I was or not. I think I was. I am not positive.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Were you questioned during your confirmation hearings about your testimony before Senator Ervin's Subcommittee on Constitutional rights, testimony which touched on the issues later involved in Laird v. Tatum?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I may have been, but I am not positive.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Didn't you address your comments in Laird v. Tatum, in the memorandum in Laird v. Tatum, to the propriety of judges participating in cases over which they had formed some prejudged opinions on constitutional issues?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Previously stated positions, I think, yes.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Didn't you state in that memorandum that it would be extraordinary if Justices came to the Supreme Court without at least, quote, "Some tentative information that would influence them in their perception of the sweeping clauses of the Constitution and their interreaction of one another ?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Didn't you also say that, quote, "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of Constitutional adjudication, would be evidence of lack of qualification not lack of bias"?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. AS I read it, yesterday's New York Times article that suggested you had not even mentioned your prior testimony on recusal and your participation memo in Laird v. Tatum is incorrect. It is my understanding that you did generally refer to prior congressional testimony in your memorandum as one source of prior experience that does not require recusal. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe it is, Senator.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Moving on to another subject, Mr. Justice Rehnquist, in a 1974 ABA Journal article entitled, "Whither the Courts," you called attention to an explosion in constitutional litigation. Mentioning several possible solutions, none of which you found acceptable, you concluded that, and I quote you, "Frankly, I 199 do not know what the solution is, but I have enough evidence, enough confidence in the genius of our country's institutions to think that it will be found." It seems to me that 12 years later, this litigation explosion has ventured well beyond constitutional law and has permeated virtually every facet of the law. I am curious to know what, 12 years later, you believe to be the role of the judiciary in general and the Supreme Court in particular in grappling with the runaway litigiousness of our society.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The judiciary is kind of fettered by many restraints, many put on it by Congress. Congress has a propensity to create new causes of action every session, and each one of them by themselves may be utterly unobjectionable, perhaps beneficial. But gradually the same thing is happening to the Federal court system as the environmental people saw was happening to Lake Erie 25 years ago. We have a system that has only a finite capacity, and more and more is being expected of it. And it is quite understandable that the system cannot perform quite the way it did in the past and that there are real problems ahead. I think that Congress is going to have to in the near future ask itself, do we repeal diversity jurisdiction. Repeal of diversity of jurisdiction—and I remember looking at some statistics when I went down to Lexington and spoke at the University of Kentucky 3 or 4 years ago; I think the Federal courts in Kentucky have a great deal of diversity jurisdiction, cases based on diversity of citizenship. Now, that would help the district courts a great deal. It would help the district courts in States like Kentucky and the less populous States more than it would help some of the very popular States, where I think there is a smaller percent of diversity jurisdiction. It would help the courts of appeals some, but it would not help them as much as the district courts, because a lot of the diversity cases are strictly demands for money judgment, the kind that can be settled on appeal. Whereas, if you are talking about some more personal claim, a constitutional claim, it is much more difficult to settle that case after you have won a judgment in the district court and are talking about appealing to the court of appeals. Repeal of diversity jurisdiction would not help the Supreme Court of the United States at all, because we never grant certiorari in diversity cases. So that diversity would help at the trial level of the Federal court system; repealing that would help a great deal. It would not solve our problem, the Supreme Court's problem. The national court of appeals situation would help the Supreme Court most of all and not give great benefit to the other courts. What type of help the judges of the courts of appeals feel they need to handle this mounting explosion is something I think they are probably far better to speak up about than I have, and very likely they have spoken.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Let me ask you, in your opinion, about the frivolous lawsuits problem—you hear a lot about that these days. Under the Rules of Civil Procedure, there are supposed to be some penalties for bringing frivolous lawsuits. Do you think that is a problem, and if it is a problem, are the penalties not adequate, or are they not being enforced? What is your view about that? 200
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I think that a lot of times, Supreme Court Justices are thought to have a far greater grasp of the facts of the professional world and the legal world than they do. It has always seemed to me that the provisions of the Federal Rules of Civil Procedure, the affidavit of bona fides required under rule 11, the provisions for assessment of costs for frivolous motions, that the tools are all there for any district judge who wishes to use them to dispose of frivolous lawsuits the way they are supposed to be disposed of. On the other hand, it may be that there are some judges who do not take advantage of these rules. I cannot think of anything now that comes to mind from what I know as a Justice of the Supreme Court, which does not cover the whole waterfront by any means, that would lead me to think significant changes are necessary to solve the problem of frivolous lawsuits.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. A frivolous lawsuit does not make it to your level
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, do not kid yourself, if I might use that rather familiar term to a U.S. Senator. Because of the in forma pauperis rules, litigants in our Court can file petitions for certiorari without paying costs, and they can file petitions for rehearing when their petitions for certiorari are denied. And a substantial part, not a major fraction, perhaps not a large minor fraction, but a significant minor fraction of the petitions for certiorari we get in our court each year are people who just are outside—to talk about outside the mainstream, they are really outside the mainstream of litigation. They have started a lawsuit in a trial court somewhere, they have lost it, so they bring another suit, and they now name the judge who ruled against them as a defendant. And then they appeal the decision against them to the court of appeals; the court of appeals says no, there is nothing to it. They petition for certiorari; we deny it. They petition for rehearing. And then they start all over again, adding everyone who has decided against them along the way as defendants. Now, this is not a major problem. The courts know how to handle this thing. But I did want to correct the impression perhaps that lots of people share with you, Senator, that frivolous lawsuits do not make it to our Court. They are not granted, but there are efforts made.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. In your view, then, could or should judges do more to enforce or impose the penalties that are currently available for the bringing of frivolous lawsuits?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have a feeling that that might be desirable, Senator, but again I do not know. I would want to know more about what is going on in the various district courts, the various courts of appeals before I simply leap to kind of a facile conclusion yet.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. IS that the sort of thing that you feel might be appropriately addressed if you become Chief Justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that is something that might be very appropriately addressed by a committee of the Judicial Conference which would represent people from different circuits, different parts of the country, perhaps district court and courts of appeals 201 judges, who would have more hands-on feeling for how this thing is working than, frankly, I would.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. YOU mentioned the transaction cost a while ago; the cost of litigation is obviously enormous these days. And you mentioned an example of a type of case that a firm of some reasonable size might not even accept because the fee could be greater than the amount of money involved. I have not given a whole lot of thought to this, but in regard to the whole area of alternative dispute resolution. I am wondering if you think that it provides some opportunity for relief in the future to further promote alternative dispute resolution as another way of settling disputes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it does, Senator. I was up at an Allegheny County, PA Bench Bar Conference early in June and talked to several lawyers and a couple judges up there. And it sounds to me that in Pennsylvania they really have a system working that requires arbitration before you go to court, given certain jurisdictional limits and certain other facts. I am obviously not familiar with the details. But my impression, talking to people up there, it is a success, it is well-regarded by lawyers and laymen alike, and the limits have been steadily raised so that now the limit is much higher before you can go directly into court without going through court-attached arbitration.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Some of the lawyers at home tell me that one of the problems they have experienced with ADR is that the party who is disappointed in the outcome is inclined to go back and start the process all over again. I am guessing you will not answer this, but I am wondering, and I will ask it anyway, if you see any constitutional problems with the following kind of approach: (a) that the lawyers for all the parties would have to certify to the court within a certain period of time that they had apprised their clients of the various alternative dispute resolution techniques available, and (b) if the parties signed off on that and agreed to an alternative dispute resolution approach that the option to go back would then be waived; that if all the parties agreed to ADR as a way to settle a dispute, they would thereby waive their option to go back through the court system. Would you see some constitutional problem with that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. SO there would be no hearing in any court?
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. They all waived it; they all signed off on an agreed alternative dispute approach; they would in effect waive their right to go back through the court system.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, that is not Marbury against Madison, when I was talking to Senator Specter a while ago. To me, that is not so clear that I feel free to answer it.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. I thought you might not want to do that. Let me ask just one other general question, Mr. Chairman, and I will be through. We talked about caseload in general. Is there anything else that you can think of beyond the points that you have made that you could do as Chief Justice to help lessen the Federal caseload beyond the suggestions that you have made?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the present Chief Justice's proposal of some sort of an impact statement requirement for committees of Congress which propose bills which create Federal causes of action might be useful if Congress thought it were useful. That is, if you are going to have a new cause of action created, or a new right to sue in Federal court, let us try to figure out how many cases are expected to be brought, and might they be concentrated in one part of the country rather than the other; is this going to take new judges. Certainly, it is always Congress prerogative to create those. But what so often happens is that the causes of action are created, and then the new judges are not forthcoming.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Thank you very much. No further questions, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you, Mr. Chairman. Mr. Justice, there should be no question about your endurance after today, if nothing else. I noticed when we arrived this morning, there were long lines in the hallway to get in here. The lines have disappeared; the audience has virtually disappeared. But we are still here. You have discussed your ideas on the position of Chief Justice. Let me just ask one other question in that connection. Chief Justice Burger has, in the area of funeral reform for example, spoken out in a very healthy way and made a real contribution to the Nation. Is there any area like that that you have thought about in which might contribute something special to the Nation?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I would certainly want to give some thought before coming up with a conclusive answer. But I think the business of alternative dispute resolution that I have mentioned to several of your colleagues is probably as important a concern to me as penal reform is to the Chief.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Well, I would welcome a contribution in that area. Then, let me discuss some of my concerns. There is no question in my mind about your ability, no question about your integrity. I guess I do have questions about your sensitivity in the area of civil liberties and your ability to function as the kind of symbol for everyone which I think a Chief Justice must be. Let me go back—this is a White House tape. John Ehrlichman is talking to President Nixon July 24, 1971. The President complains: Nobody follows up on a 'blank-blank' thing. Do you remember the meeting we had when I told that group of clowns we had around here, Wrenchburg and that group—what's his name? Ehrlichman responds: "Rehnquist." Anyway, you at that point had headed this classification group, and I believe one of the people who was working for you was David Young. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I knew David Young. But I am not sure I was head of any classification group. I was part of a project in the Office of Legal Counsel to recommend revision in the classification regulations. It might be that David Young worked with me; if he did, I do not remember it.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. That is the group I am referring to. The document I have indicates you were named chairman of that group.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, then that is it. 203
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And David Young, and you may or may not— Egil Krogue, do you recall him working?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, certainly, yes.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And Mr. Hunt—I forget his first name already— Howard Hunt?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Was he on that?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. He apparently worked for the committee, according to the document I have, yes, for that group.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly do not recall it. If that is what it says, maybe that is the way it was.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And Gordon Liddy?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. He worked for the group, too?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. That is correct.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And I was chairman of it? [Laughter.]
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes. And I do not know that they worked fulltime or anything like that, but they were doing some work for it, according to the documents we have now. But that leads to a question—and I am just probing here on September 4, 1971, Ellsberg's office was burglarized. Since they were at least working part-time on a project that you were involved in, did you have any knowledge of this, were you in any way involved in it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I was not.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. And you had no knowledge of that in advance at all?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. In probing this whole area of sensitivity on civil liberties, we dig out things that people write and say. We could pull out some things that any of us have said that we would probably not be exactly proud of. But at one point, you wrote a memo to Justice Jackson, referring to "some outlandish group like Jehovah's Witnesses," and there was the decision, the Jehovah's Witnesses decision, in regard to Indiana, the Buddhist Prison decision. Now, I recognize that neither Buddhists nor Jehovah's Witnesses are particularly popular groups in our country, but I think it is important that we defend the liberties of the most isolated, unpopular groups.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I agree with you.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I know you declined to answer any questions from Senator Grassley on the Establishment Clause, but do you have any reflections on the important role that you have to take as a Justice of the Court in defending the most unpopular causes? And incidentally, I differ with some of my colleagues, as I indicated yesterday; I think your willingness to be "the lone dissenter" is, a plus rather than a minus. But do you have any reflections on that without getting into areas that I should not be getting into or where you feel uncomfortable or would be improper.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I have no reluctance at all to defend either the Establishment Clause or the Freedom of Religion Clause. Now, I have in my opinions read the Establishment Clause more narrowly than some of my colleagues. For instance, last year in the Wallace against Jaffrey case which, as I recall came out 5 to 4, as to whether the Establishment Clause prevented the moment of silence in Alabama, and I think a majority of our Court held it did, for different reasons, and I and several others felt it did not. Now, 204 obviously, the four of us in dissent took a somewhat narrower view of the Establishment Clause than the five who said it prevented the moment of silence that Alabama had enacted. And I suppose in that sense you could say the person who is in dissent there is not as sensitive to the Establishment Clause as the person who voted to expand it. But I also think, Senator Simon, that these are almost questions of degree and that there is not a tremendous amount of difference there as to the broad principles of the establishment clause are uncontroverted, and those kinds of cases do not get up to us because they are pretty well settled. It is these kinds of frontier-type cases that come up and reflect divisions among us—and I certainly have read the establishment clause more narrowly than some of my colleagues.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I think you are correct in saying these are questions of degree. There are some of us—I include myself among them—who think we have to be very, very careful as we look to history, not only our own history, but the history of other nations, so we maintain that freedom of religion and do not get Government involved unnecessarily. Let me turn to another aspect of this. I questioned the two representatives of the Bar Association on this subject. As I look at your record—and I have read all 47 dissents as well as a few of the other opinions you have written, and incidentally, I am a journalist by background, and I appreciate someone on the Court who writes using the English language and who writes clearly—but as I look at your decisions and at the background, including the Phoenix, not what happened at the precinct, but the letter to the editor of the Phoenix newspaper, and the decisions through the years, I guess I do not see someone who is a champion of justice for all citizens, for the minority, for women, for people who need a champion and who may not have one. Am I misreading that record?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would say partly but not entirely. I mean, I do not think any person who studied my record would have any question as to my fairness or lack of bias toward any litigant or any cause appearing before me. But I think that certainly, groups who are going to have litigation insofar as a broad reading of the equal protection clause are going to see in me not a champion, but someone who more frequently votes against them than someone who would read the equal protection clause more broadly than I would. And in a sense, therefore, you have a spectrum where the person who appears as the champion, perhaps a real champion to women's groups or to minorities, is going to appear as a good deal less of a champion to the citizens of a community who vote and pass a legislative act which is held to be limited by the equal protection clause, because I think, Senator, there are two sides—in fact, it is almost trite to say it—in almost every one of these cases where the equal protection clause, which I think is the main clause, is claimed under and often decided in favor of the people whom you refer to. Every time the equal protection clause is invoked, it means that an act of some State legislature, or an act of Congress, is struck down. 205 Now, certainly, it was intended that the Bill of Rights and the other restrictions on Congress and State legislatures be applied in just that way. But occasionally one gets the sense that it is a victory for the Constitution every time a court invokes a constitutional provision to strike down a law. I do not subscribe to that, and I do not think most people who approach it from that direction would think so, either, because you know, every bit as much as the Bill of Rights are protecting the rights of the individual in this country, we certainly also believe in representative democracy where a majority can make rules that bind the rest of them unless they do conflict with some provision in the Bill of Rights. All I am saying is that more often than one might think sometimes, there are really factors to be weighed on both sides.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Using the office of Chief Justice as a symbol, which you really are in addition to fulfilling a very important function in our society—in the same way the Statue of Liberty is a symbol—do you think you can be an effective symbol of justice for all?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think I can, Senator. And if I thought in order to do that that I would have to change the philosophy, or the judicial philosophy evidenced in 15 years of decided cases, I do not think that would be a proper thing for me to do, except perhaps where there are constraints that there ought to be a court opinion rather than a plurality opinion. Those are not the principal things I am sure you are asking about. But I think the Chief Justice as symbol has so many nonadjudicative functions—you know, whom he speaks to, whom he works with and that sort of thing—there, believe me, my door would be open as wide as anyone else's door in that office.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One of the other charges that is made about you, Justice Rehnquist is, as I read the literature—and that can distort the view of any of us; I read about myself once in a while and I do not recognize myself—but one of the charges is that you are not open-minded, that you in a sense have made your mind up, and have fit the facts to that rigid ideology and to that preconceived notion. How would you respond to that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would respond to that by rejecting it quite emphatically. You know, that is not to say that I do not have ideas, which I certainly have followed; I have a sense of what I think the Constitution means. But it certainly is not a sense that is, fixed in concrete at all. I am one of the few members of our Court who can present both exhibit A and exhibit B in support of open-mindedness. On two separate instances since I have been on the Court, I have written opinions for the Court overruling earlier opinions that I have written, which certainly is some testimony to openmindedness.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Excuse me. What were those opinions? I am just curious, if the Senator would not mind—not to explain them, but just name them.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. United States v. Scott, overruled Jenkins; and either Davidson or Daniels this past term, overruled a significant portion of Parratt against Taylor.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you. 206
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. One other question. I do not want to get into any past health problems or anything like that. But Justice Powell has been very open about his difficulties. We had a situation that was not a good situation during the final months of Justice Douglas' tenure, before he died. What about the Chief Justice in the future if, 3 years from now, 5 years from now, health problems arise? Do you intend to deal openly with the public on that kind of matter? Have you thought about that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I have thought about it, frankly, since I called on you and you mentioned it to me. And I think there is a tendency—I think judges have much more of a tendency to—I cannot think of the expression—something about "pulling the wagons around" or something like that—than people in public elective life, the way Senators are. Just because—particularly on our Court, where there are only nine seats, the health of every individual Justice is an endless subject of speculation. You know, is he sick, or really sick? And I went through that when I was in the Justice Department in 1971, when Justice Harlan was ill in the hospital, and Justice Black was ill in the hospital. Some of the calls I got from people I knew in the press were almost goulish. And perhaps that is it partly, that I have brought with me a sense that so long as I can perform my duties, I do not think I have any obligation to give the press a health briefing. But I also see the point you made when you and I talked, and particularly in the office of Chief Justice, I think I would have to approach it differently. Senator SIMON. Thank you, Mr. Justice. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The distinguished Senator from Wyoming. Senator SIMPSON. I look at my colleague Senator Broyhill. Have you had your day yet in the one round? Senator BROYHILL. NO. Senator SIMPSON. YOU were here before I was, but let me then just shorten; I just have a very few remarks and questions, and then I will yield to Senator Broyhill. Thank you, Mr. Chairman. I have been informed of the proceedings and have been watching some, and I am very interested in the questions and your responses. It has been very important that you have addressed each and every issue that has been presented, and I think you have responded fairly in the circumstances. I would come back to a thing I dabbled in a little yesterday, and that is the issue of ballot security issues. I think that I would really be intrigued as to how many young lawyers who decide to go into politics, or become involved with a party, do not find that one of the first things you seem to get into is, first of all, to be a precinct committee man or woman, which is a ghastly experience in many ways. And then to go canvassing, which is another remarkable process which you really did not believe you had to do when you got to be the precinct committee man or woman. But then when the county chairman would tell you to go to this precinct where they vote all these Republicans all the time—or where they vote all these Democrats all the time—and check it out, that was always an interesting ritual 207 In my county, rather loaded with those of the Republican bent, they used to have ballot security checks. The Democrats would do that to see that all was appropriately done, and then the Republicans would do that, too. It was called ballot security, and each State has its own differing laws on that, and I know, at least in my State of Wyoming, each party selects a person. They actually can go to the polling place to challenge or to review the voting to be certain that it is carried out appropriately. In those former days, you could also present whatever the law of that State was before those who were preparing to vote. So I just come back to that briefly about your activities concerning the polling places in 1968. We went through that before in the hearings of 1971, where you responded that you were not engaged in any sort of poll-watching, and that accusation involving 1968 was dropped. Other allegations were made regarding the alleged personal challenging of voters in 1962, and those were found to be "wholly unsubstantiated and totally unfounded." The same was true in 1964; a charge was made and disproven. In rereading the committee report, I see that other unrelated charges were also raised and then disproven and dropped. And so it is interesting to me to see those comments, that alleged misconduct, accusations, come up today, 25 years later, inconsistently. I fully realize we are talking of that time ago, and you have given us your best recollection. Anyway, you testified in 1971 that you believed that, in your capacity as chairman of the Republican Lawyers Committee, that you visited these certain polling places in 1960 and 1962, and that is a correct statement, is it not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If that is a quote from my testimony, it certainly is.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. In 1971 you testified that in 1960 and 1962 you went to those precincts where disputes had arisen, it being part of your duty as chairman to attempt to negotiate for your side in resolving such disputes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, yes; if that is what the statement says, that is correct.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And in other testimony, you stated in 1962 you witnessed a Republican challenger engaging in what you considered to be harassment and intimidation, and that you advised that challenger to cease and desist.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. DO you recall that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not recall it now, but I recalled it in 1971,1 think.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. But that at no time did you yourself engage in the harassment or intimidating activity?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is correct.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. I just wanted to review that again. That seems to come back like an old saw—and it does seem old to me. But to comply with my statement so I can yield to the fine Senator from North Carolina let me recognize the presence of Senator Heflin. I have come to have great respect and admiration for him in his work as a lawyer, and chief justice. He was chief justice of the Ala- 208 bama Supreme Court, and he has some very fine approaches toward modernizing the courts' review systems. He is most serious about that, and I have heard him ask some questions about that. Would it be your intent as Chief Justice to be accessible—and I think you already addressed this—to the Judiciary Committee, to the young lawyers, to the law schools, to the students? That is not to say that Chief Justice Burger has not, but would that be your intent to let people know that this is not the Chief Justice sequestered; but that this is the Chief Justice, the human being, the person you can visit with, to have seminars with? As I say, Justice Burger has done that. What would be your intent about that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, if I am confirmed, I think I perhaps ought to sequester myself for a short period of time until I understand the job better, and then I certainly propose to behave just as you suggest.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. YOU have traveled a great deal and made yourself accessible as Associate Justice, have you not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I have. I think I have visited, you know, a great number of law schools. As you well know, I visited the University of Wyoming Law School in Laramie last year.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. And you would intend to continue that communication with the bar and the young lawyers and with students?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I have the feeling—I enjoy that, and I certainly hope to, if it is possible. But I have the feeling from some of the concerns expressed by the Senators and some of my own feeling that there is probably work to be done in the sense of the Brookings-type meetings at Williamsburg and some of the other duties that the Chief Justice has that are not going to enable me to enjoy that sort of thing as frequently as I did when I was an Associate Justice.
Senator Alan Simpson (WY)
Senator
(R)
Senator SIMPSON. Well, I was one, along with Senator Heflin, who attended those quite regularly. They were good, and we had a fine relationship with the Supreme Court Justices, the Judiciary Committee of the House, the Judiciary Committee of the Senate. I like those; I wish I could get to more of them, and will hope to do so in the future. But I just wanted to briefly inquire on those issues, then when you get to the issue of how you are as a Justice—what is your position as a dissenter or a nondissenter—I guess there are as many Court watchers as there are Congress watchers. Rating systems—I am always fascinated by those; dissent dissectors. And we all get rated, scored. I understand that there is not any area that we do not get examined on, and then they have the scorecard and the flunk test, and we get that. Obviously, you have groups watching the U.S. Supreme Court doing that, and I am always fascinated by that. So we will not try to peg you as to where you are. Senator Simon has read more opinions of the Supreme Court now than I did when I practiced law. [Laughter.] He said he read all 49 dissents Anyway, I would hope you would continue as your predecessor, Chief Justice Burger, in being accessible to the bar and telling 209 them things they really do not want to hear, sometimes. For example, about responsibility and greed and where the profession is going if it just is dedicated to how much money you can scratch together in the course of practicing law, without ever doing the pro bono and the other things that make me proud as a lawyer. I hope you will be doing that as Chief Justice, and I hunch you will from what I know of you and about you. I thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The distinguished Senator from North Carolina. Senator BROYHILL. Thank you very much, Mr. Chairman, and I know the hour is late and I appreciate your patience and your stamina as you have stayed here all day and have answered articulately all of these questions. I am, of course, the last of the questioners as a result of the fact that I am a new member of this committee and a new member of this body, only having joined this body 2Vz weeks ago. Both of my predecessors, however, who occupied the seat that I now occupy in the Senate were both members of this committee, Senator John East and Senator Sam Ervin. Thus, it is a high honor for me and a privilege, a nonlawyer, to occupy this seat on this committee at this time in history. I do not pretend to be a constitutional scholar. I am not going to really ask you a lot of fine points of constitutional law. But I know one thing I have learned around here in my 23x /2 years' experience in the Congress of the United States. Every day the Congress is faced with deciding issues that at one time in our history were decided at the State or the local level. They were decided by school boards; they were decided by city councils, county commissions, or State legislatures. And it is also sad to say that we often find that these local and State officials are here urging us to assume an even greater role. I am not asking you to talk about that, but as a member of the Supreme Court, of course, you do deliberate from time to time on this issue of division of powers in our system of government, and you have a reputation as one who is a champion of the right of local government to govern themselves. I wonder if you would, for a moment or two, at least, give us your general views as to the proper division of powers in our Federal system.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I will certainly try, Senator. I think I said some time earlier today that since the Supreme Court has so expansively construed Congress' power under the commerce clause, that how power actually is divided between the States and Congress is now very much a matter for Congress to decide and no longer that much of a constitutional question. And as to how Congress exercises that power, certainly that is not a judicial question in the ordinary sense. But my personal preference has always been for the feeling that if it can be done at the local level, do it there. If it cannot be done at the local level, try it at the State level, and if it cannot be done at the State level, then you go to the national level. And I suppose much of the difference in how many Federal laws, how many State laws we have depends on how people think how 210 well the local and State governments are doing. But I certainly share the concerns you expressed, and I think that the decisions our Court has handed down in the area are an effort to fairly divine the intent of Congress to whether a Federal law shall prevail or where a State should prevail when the two conflict. And that, really, I think is about the extent of the function of our Court in that area.
Senator Jim Broyhill (NC)
Senator
(R)
Senator BROYHILL. One other area. You know, there is a great deal of criticism I hear from time to time about what I think is called judicial activism. Of course, our Constitution is celebrating the 200th anniversary of the writing of that document, and it is a remarkable document. I think that those who wrote it intended it to be a framework where men and women could govern themselves and not necessarily have someone at a central place governing them. The criticism, of course, is that the Federal judiciary is making law; that is, not interpreting, but, through their decisions, actually making laws. I wonder if you would elaborate for the committee your views on the proper role of the judiciary in our democracy.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, certainly, it is a fundamental principle that it is the legislative bodies that make the law and the courts that interpret the law. But when you get to some of the broad phrases of the Constitution, you know, what does due process of law mean; what does equal protection of the law mean. When the constitutions are drawn in those phrases, you are drawing them in a way that necessarily is going to give the judges some authority to—some latitude to construe them, just because their meaning is not self-evident at all. And I think the general differentiation in that area between judicial activism is perhaps seeking to cure a social evil by an expansive construction of the Constitution. And I think my record of 15 years on the bench reflects that I do not subscribe to that view. I think that it is—the meaning of the Constitution is best possibly found from relevant materials that you have got to be guided by, even though it does not lead necessarily to the solving of the social evil. But in other areas, we have real problems of determining intent because Congress—I will be frank to say that I think Congress does not legislate as carefully now as it did 30 or 35 years ago, perhaps, when I was a law clerk, when I was in law school. Perhaps it is because the bills are 200 pages long, and that sort of thing. And frequently we get cases where I must say that it looks like the proponents of the bill have been given the right to draft section 1 and the opponents of the bill have been given the right to draft section 2, so that the result is you read one section of the statute and it seems to mean one thing; you read another section and it seems to mean another thing. And there, again, it is not really a matter of judicial activism. It is a question of trying to find out what Congress meant, but often being quite unsure about it.
Senator Jim Broyhill (NC)
Senator
(R)
Senator BROYHILL. Well, in a way, it related—Congress over the years has added and given more and more power and authority to various administrators, as well as independent groups that, actually—you know, they are appointed by the President; some are inde- 211 pendent; some are subject to their continuing in office by Presidential powers. But they are given tremendous powers to write rules and regulations that have the force and effect of law; in fact, in some cases have even the effect of overturning State law. And, also, they do have the powers to impose sanctions in many cases; that is, to impose fines, the judicial power. Now, I have worked for a number of years to try to get some more control over this rulemaking or regulatory power of these independent agencies or the independent rulemaking powers of these administrators. In fact, a bill was recently passed out of this committee that would, in part, give the Congress the right to look over their end work products. Now, I wonder if you could articulate your feelings as to how far constitutionally the Congress should be going, or how far they have gone. Perhaps you have articulated opinions on this issue.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I do not think I ought to address a specific question of how Congress could go in regulating this, in view of the separation of powers. I would like to address myself to a point you made in your question and something that I have expressed concern with in an opinion I filed a couple years ago—I think there were only two of us on the opinion—and that is the authority that is given to agencies to preempt State laws, as opposed to Congress. There is no question, Congress, under the commerce power, can preempt as much State law as it chooses to do so. But I have always felt it was another kettle of fish, if not jurisprudentially, at least practically, for the agency to say, well, now, we are preempting the law, the State law, where perhaps Congress has not specifically given them the authority at all. I think that is an area we are going to see more of, and in my de la Cuesta dissent, I think I expressed some of the concerns that you are questioning.
Senator Jim Broyhill (NC)
Senator
(R)
Senator BROYHILL. One final expression of concern that I hear— one of the ones that really is more often expressed to me than others—is that the courts, in their zeolous guarding of rights of those who have committed crime, sometimes overlook the right of the victims of crime. While the rights of criminal defendants are vital to our system of criminal justice, of equal importance, it seems to me, is the right of the law-abiding citizens to have safe streets and safe neighborhoods. I wonder if you would give us your views on this balancing of rights, as you have viewed them in your past decisions.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is exactly the word I would use, Senator, is balancing. And just as I said to Senator Simon about the equal protection clause in that area, the constitutional rights of the defendants are essential and vital. But they also stand against the right of society and limit the right of society, in the traditional view of criminal law, to apprehend the guilty and exonerate the innocent. And, obviously, it was intended that the Bill of Rights have this restrictive function, but I have expressed the view in my opinions 212 that this endless expansion of constitutional rights for defendants by judicial construction is not a welcomed thing because it does tend to impair in a way that the Constitution did not intend to have it impaired, the right of society to fairly and justly administer criminal law, with proper respect not just for the defendant, but for the victim and for the social interest in seeing the law enforced.
Senator Jim Broyhill (NC)
Senator
(R)
Senator BROYHILL. I thank you very much for your patience, and I thank you very much for your responses to my questions and comments.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That now completes round one for all the members of the committee. I want to announce that tomorrow we will meet at 10 in executive session. We have a few matters to take up before we go back to the hearing. We will try to get back to the hearing about 10:15, or as soon after that as we can. So if you will be here tomorrow at 10:15, Mr. Justice.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Hatch may have some statement he wants to make. I see him sitting here.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO. I would just like to say, Mr. Justice Rehnquist, I think you have done very well today. And it has been very difficult for you and it is a tough process, but we appreciate the patience, forebearance, good humor, and I think the intelligent way you have answered all of our questions.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you so much.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We now stand in recess until tomorrow at 10 o'clock. [Whereupon, at 8:10 p.m., the committee was adjourned, to reconvene at 10 a.m., Thursday, July 31, 1986.]
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Justice, you and I spoke briefly yesterday about the role of Chief Justice Warren in the Brown case, and we ended, when my time was up, beginning to speak to the role of the Chief in the Nixon tapes case, which was as we both know—you, better than I—a different role; the Chief was in that case the one person that was slightly out-of-sync with the other eight Justices, according to historical—he ended up voting the same way, but the issue there was not the Chief bringing along a potential dissenter; the issue there was the Chief, who thought the tapes should be given up, having a rationale the same as the other eight Justices. And I think it has been characterized by everyone as the Chief having compromised somewhat—not compromised in a bad way, but having compromised some to gain again total unanimity on the Court. Is that your perception of how that occurred? TESTIMONY OF HON. WILLIAM H. REHNQUIST 220
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. YOU are talking about cases in which I dissented in lone dissent?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Where you were the one dissent.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not have those readily before me. And I am trying to think whether any one of them might have. My feeling is no.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Can you tell me why you dissented in the Bob Jones case?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I can, Senator, and the reason for that is that I think that would be a form of being called to account here before the Senate Judiciary Committee for a judicial act which I performed as a member of the Supreme Court of the United States. My opinion, of course, is available, explaining reasons. But how I came to that conclusion I think is something that I think ought not to be inquired into here.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I think your reason is a valid one.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. DO you think that decision in the Bob Jones case was an important decision in terms of how black Americans think the Supreme Court thinks about them? I mean, do you think that is viewed as a seminal decision by black Americans?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. They would be better spokesmen than I would, but I should think—I do not know seminal, but I would say important.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That was the one case where you—and I will go into it in my next round with you—your rationale—we can speak to your rationale, I assume, as written, was as I understand it, the end result of it was that had you been in the majority, we would have been able to continue to subsidize a private institution that is segregated. And that is not to suggest that was the reason you decided—we will go into that later. It related to your—well, I will not characterize it now.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, I might say his opinion is available, and if you want to put it in the record, you are welcome to do that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I will put it in the record, and before the day is over, we will discuss it in detail. I am prepared to do that, and I am anxious to do that. Let me if I may
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, if I might, the Bob Jones case was a statutory case, not a constitutional case in any significant way.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, I understand that. But the end result would have been, had you been in the majority, had your fellow Justices agreed with you, the end result would have been that Bob Jones would be able to continue to segregate and get Federal funding.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The end result would have been that that would have been left up to Congress. Congress could have changed the law, as I saw it in my dissent, simply by a legislative act.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Unless Congress changed the law, they would have been able to.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Right.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN YOU pointed out yesterday, and I thought with some great facility and clarity, that your role as you saw it for the Supreme Court to recognize and protect the rights of the majority. 221 And you talked about communities, and the right of victims, and the like. Let me ask you a broader question. You point out—let me back up. It seems to me that the majority has ample access to at least two of the branches of Government in a direct electoral way, that they can make their will felt by showing up at the polls, and they do; and that oftentimes, that pure majoritarian role at the polling place, notwithstanding the fact that the Founding Fathers gave Senators 6 years instead of two to provide some
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up, but he can answer this question.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I guess the best way to put the question is this. Isn't part of the role of the Court, isn't the Court uniquely suited, more than either of the other two branches, to be the guardian of the rights of minorities?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think it is.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Arizona.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Wrong State, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Excuse me—from Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I do not mind the association at all, however.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. The Justice and I had an extended discussion yesterday, and he certainly cleared the areas of my concern, so I will follow the chairman's lead and pass on my time. However, Justice, there may be some matters arising that we might submit written questions to you.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would be happy to answer them.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I will yield my time to Senator Hatch, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman, I would like to point out a few things about the Bob Jones University case. I happen to agree with the majority of the Court in that particular opinion. It is safe to say that of the four judges who ruled on the Bob Jones case before the Supreme Court, two of them took the view that the University was entitled to an exemption under section 501(c)(3) of the Internal Revenue Code. This demonstrates that the question was not an open and shut question as some of my colleagues would indicate. It should also be pointed out that District Court Judge Chapman ruled in favor of the University and believed that it was entitled to section 501(c)(3) exemption. And that is in a 1978 decision. In the 2-to-l fourth circuit ruling reversing the district court judge, Judge Widener dissented. He expressed his view that section 501(c)(3) exempted the University. There have been a number of scholarly Law Review articles written that sustain and have supported the Government's section 501(c)(3) argument, including the prestigious Supreme Court Review for 1983, published by the University of Chicago Law Review. And of the 26 articles which were published on the case up to 1985, 18 of those articles were critical of the Supreme Court's majority decision. 222 Rightly or wrongly, the point I am making is that there were legitimately two sides to the question. And in the zeal to make points sometimes we fail to look at some of these very critical points. I believe that Prof. Lawrence Tribe of the Harvard Law School, truly one of the great constitutional law professors in this country—with whom I disagree on a lot of occasions, and agree on some—severely criticized the Government's action in the case. However, he later published an article in the Indiana Law Journal that the Court's use of congressional inaction in Bob Jones was not a legitimate method of inferring congressional intent. We can beat these things to death, but there are two sides to them. These are intricate, difficult questions, and it takes courage to stand up on one side or the other. I happen to have agreed with the one side, but that does not mean that there was not a legitimate point of view on the other side. I waive the rest of my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. All right. The distinguished Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Justice, as this hearing develops, I think it is on a double track—maybe a triple track—one part of the track has to do with your ability to lead the Court, to be an individual who can weld the Court together. The second part relates to whether indeed, you are an extremist and relates to some of your opinions. But there is a third part that probably disturbs me as much or maybe more than any of the first two portions. That has to do—and I want to use the most sensitive language I can—with your credibility, with the honesty of your representations to this body in 1971 and the present time as well. On the voter challenge issue, we have the matter of your making a specific representation to the committee at that time, and then we had the total disavowal yesterday as pertains to the facts. That is an issue that is still left unanswered because the witnesses will not be here until tomorrow. But it has to do not with whether you did or did not do something, but whether you did or did not represent the facts correctly to this body. Then, the second part of that whole credibility question relates to your answer to Senator Leahy yesterday that you did not know of the typed-in restrictive covenant. This was a boilerplate form that had a typed-in restrictive covenant with reference to selling or leasing your property to any member of the Hebrew race. Well, just as something on its face, something typed-in, a good lawyer, an excellent scholar, it certainly would have been normal to expect you would have noted that. I guess as one of the most knowledgeable people that graduated from Stanford high honors, everybody agrees you are extremely intelligent, and it almost stands out: "Hebrew race." There is no such thing as a "Hebrew race." It is the Hebrew religion. I mean, that would obviously be a point that almost would stand out. So, when you say you did not know about it, that concerns me. It is bad enough that it is in the deed; it is worse if it was in the deed, and if you knew about it in your representation to the committee. And the third aspect having to do with the matter of credibility relates to your claim that the memo to Jackson was not representative of your views, but were those of the Justice himself. I had 223 some questions of you yesterday on that subject, and I did not get a chance to finish. I have a few more. But I wanted you to understand what is going through this Senator's mind as to one of the most important issues that I believe this committee has to deal with, and that is credibility, integrity. The title of the memo is "A Random Thought on the Segregation Cases." If these were Jackson's views, why would you describe a statement of Jackson's views in that way?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not know, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Isn't it illogical—you wrote a two-page memo, and across the top was written, "A Random Thought on Segregation Cases." It just perforce comes out that that would be your thoughts, not his thoughts. The memo says, "I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by liberal colleagues. But I think Plessy v. Ferguson was right and should be reaffirmed." Now, if it is supposed to be Jackson's views, then was he excoriated by his liberal colleagues, and if so, who excoriated him—the other Justices?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was not a party to the conference discussion or any of the discussions of the Court on the Brown case.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I understand that. But what I am saying is that in the memo, and I am quoting your language, you state, "for which I have been excoriated by liberal colleagues." And this relates to the question of whether it is a memo from William Rehnquist, stating his views, or a memo which reflected the views of Justice Jackson, which is the point that you made. And in fact, you say, in your letter to Senator Eastland, "It was intended as a rough draft of a statement of his." And the word "his" is even underlined—"his views at the conference of the Justices, rather than as a statement of my views." Again I am saying, Justice Rehnquist, that I am not questioning your views; I am questioning the reliability of your representations to the Senate back then in 1971, because that issue had been raised, and in order to put it to rest, you took the position that all that was in that memo was a rough draft of a statement of "his" views. And I believe that—in fact, you even try to prove that point by saying, "Because of these facts I am satisfied that the memorandum was not designed to be a statement of my views on those cases," and again you underlined the word "my. And then at another point, you say, "I am fortified in this conclusion because the bald, simplistic conclusion that Plessy v. Ferguson was right and should be reaffirmed is not an accurate statement of my own views at the time." My difficulty comes about by reason of the fact that the memo by its language, by everything in it, including its title, would indicate it was yours. But in your letter of December 8, 1971 when you were up for confirmation, you went to great lengths in a three-page letter to say to the chairman that it was not really your views that were being stated; those were the views of Justice Jackson. And I think you ought to have an opportunity to explain to us why that which would appear to be an obvious conflict with the facts was 224 the statement of Mr. Rehnquist at that time, subsequently Justice Rehnquist.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not know if it was you, Senator Metzenbaum, or Senator Biden, that asked me about this yesterday, but one thing I said yesterday was that the thesis which is very roughly and very shortly, certainly, developed in the memo that most of the Court's mistakes up to that time had been reading its own moral notions into the Constitution was a view that Justice Jackson was a champion of. His entire book, "Struggle for Judicial Supremacy," is devoted to that thesis. I also would like to point out—and I think that would conform to what I said yesterday—that one reason that makes me think it was not simply a memo of my views to him is that the bald statement that Plessy was right and should be reaffirmed was not an accurate reflection of my views at the time. Also, I think that the tone of this particular memorandum is not the tone of a law clerk even expressing a great deal of his own opinions and submitting to a Justice; it is a tone of one equal speaking to another.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, are you now saying that this memo that has the initials at the bottom, "W.H.R.," was not your memo?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am certainly not saying that, Senator. The reason I know of the authenticity—I had no recollection in 1971 and do not have now of ever having actually sat down and written out these particular memos. I recognize the typescript. This was the way the office proceeded. I am sure this was typed by me, initialed by me.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. SO it was your memo, and yet you went to great lengths to tell Senator Eastland that the memo reflected the views of Justice Jackson. And I have difficulty in reconciling the facts. Here is the memo, which is very clear, and it is written as a memo from a law clerk to his Justice, and it goes on to say—it talks about all the things that—your position—and you actually state, "I have been excoriated by liberal colleagues." My question to you is doesn't that absolutely make it your memo? It was your liberal colleagues who were excoriating you. Wasn't that the fact?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, a lot depends on what you mean by my memo. If you are suggesting that I am saying that someone else prepared the memo, no. The memo was prepared by me, typed by me. The question that I understood you to be asking is whose views does the body of the memo contain. And there, I have answered you, I think it is principally, in fact, entirely, Justice Jackson.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator's time is up, and you are a minute and a half over. On this point about the deed, I might state that the Washington Post this morning had an article, headed, "Deed Excludes 'Hebrew Race' ."I want to read a couple of excerpts for the record since this matter was brought up. Greensboro, Vermont, town clerk and treasurer Bridget Collier said in a telephone interview yesterday that it was unnecesary for Rehnquist to sign the deed 225 and that it carried only the signatures of John and Joan Castellvi, who sold the property to the Rehnquists. He did not necessarily sign anything, said Collier, who said she had no record of Rehnquist's signature on documents. Collier said the language in the deed dates from 1933. "You find them (such restrictions) once in a while in some of the older deeds," she said, noting that the provision is no longer binding. Collier said FBI agents asked for copies of the deed when they visited her office recently. "They asked me if that was a legally binding provision in Vermont, and I checked with the Secretary of State's Office and said 'no,'" she said This article was written by Susan Benesche and Jonathan Karp.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman, do I have any remaining time? I would like to make a point on the deed, along with the chairman. Do I have some time left?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. HOW much time does the chairman have left?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I have not taken any time yet.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Could I just take a minute, Mr. Chairman? Let me just point out one thing.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Yes, go ahead.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We have special clocks.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Under chapter 31 of the Vermont Code, entitled, Discrimination, the appropriate provision which was enacted in 1967 is under section 1452, "Real Estate Exception." The sale, lease or other transfer of title occupancy or possession of real estate offered for sale or lease to the general public shall not be denied to any person because of the race, religion, creed, color, or national origin of that person. I do not think anybody really gives much credibility to that argument. Everybody knows it is void under law. And some of these vestiges of the past do exist in boilerplate.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would the Senator yield for just a moment on that point?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We requested the FBI, at the request of Senator Leahy, to look into this matter. The distinguished Senator from Iowa.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Justice Rehnquist, when you are a law clerk, are there times that you should play devil's advocate and raise arguments that you may not always be in full agreement with?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think there are.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Would private informal memos be used to raise and discuss such arguments?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think they were on occasion in Justice Jackson's chambers.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Well, then, Justice Jackson did ask you to prepare memos making arguments for a position with which you might not agree?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It was not necessarily that he would say, You do not agree with this position so make an argument. But he would say, I want both sides presented."
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. OK. Justice Rehnquist, after several decades of legal experience and including your 15 years on the Supreme Court, do you personally agree with everything that was said in these private, informal memos to Justice Jackson?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, no, I do not.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. And of course, isn't this true then of the Justice Jackson memo that is under discussion at this point? 226
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I certainly tried to make clear to the committee that I did not agree then, and I certainly do not agree now, with the statement that Plessy against Ferguson is right and should be reaffirmed.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Mr. Chairman, I have no more questions at this time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Arizona.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Mr. Chairman. Justice Rehnquist, I want to proceed with some questions regarding the 14th amendment and your interpretation of it. Scholars of your decisions agree that you have a limited view of the 14th amendment—limited in comparison to some of the other decisions that the Supreme Court has handed down. I do not say that critically. I just state that as what some scholars have said. These scholars, in reading your opinions, suggest that it is your view that the 14th amendment should apply only to racial discrimination. Do you agree with that analysis?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you believe that women should have equal rights as men have under our Constitution?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I certainly do.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And does that fall within the 14th amendment, in your judgment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think it does.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you believe that permanent resident aliens should have equal rights with citizens?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If you are asking me, Senator, whether under the Constitution
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Under the Constitution.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST [continuing]. Permanent resident aliens should have equal rights, there has been disagreement on our Court about that. And I do not know that any of the positions would be phrased in terms of saying that permanent resident aliens ought to have every right that a citizen does. For example, I do not think anyone on our Court has contended that a permanent resident alien ought to be entitled to vote even if a State statute says that you have to be a citizen to vote. But there is no question that the 14th amendment protects permanent resident aliens; it is just a question of how much it protects.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO who makes that determination—the court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; if a claim is made under the 14th amendment on behalf of a permanent resident alien, a court would have to decide it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. If the popular elected branches of Government want to ensure equal rights for some segment of our society— say, women—what do you think of a constitutional amendment to guarantee equal rights for women? Have you ever taken a position on that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think on behalf of the Justice Department, I presented the administration's view that the ERA should pass.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Should pass?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Should pass, yes. 227
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. When was that done, Justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it was in 1971. It was when I was in the Justice Department.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Did you write a memo, or something to that effect?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I presented testimony which had been prepared for me.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And do you have copies of that testimony?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I would think it would be in the records. As I recall, it was a House committee, because I remember Congressman Wiggins gave me a very hard time on the testimony.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Your recollection is that you presented the administration's position in support of passing the equal rights amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, it is.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Was that your view personally, too?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I had reservations, I think, at the time. You know, I could see arguments pro and arguments con. But I do not think I was as enthusiastic—I thought there were more problems with the ERA than the administration's position would have indicated.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO you took the administration's position to support the ERA because that was your job and your position at the Justice Department?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Had you exercised, or do you remember giving your opinion prior to that position being taken? Were you part of the process, in other words, of what that
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, sure; I am sure there was discussion back and forth, and it was just simply resolved.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And in any event, officially, you stood by the Justice Department's position or the administration's position, which was clearly in support of the equal rights amendment.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Justice Rehnquist, some of your critics have attempted to make much of the fact that you have written so many dissenting opinions. I believe that the criticism is unfair and quite frankly irrelevant. Let me ask you some questions. Do you believe that it is your responsibility to keep voicing your view on an issue even if stare decisis leads the Court to decide a specific case in another way?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think generally, yes, Senator, that if one sees a constitutional issue a particular way and simply is not persuaded, that in most cases it is a part of a function of a judge to say something in dissent. I think on statutory cases, it may be somewhat different. The ballgame is over when the Supreme Court decides a statutory case. Congress can change the result if they do not like it. And I think there, a dissent, particularly a sole dissent, has a good deal less to be said for it.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. SO it is your position of course, if I can assume, that you will continue to dissent when you feel the compelling legal reasons to do so, but less so in the cases where stare decisis is applied to a statute. 228
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Exactly, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. That does not mean that you would not dissent, but less so?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. DO you believe there is much difference in one Justice dissenting or two Justices dissenting or more?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I never thought a great deal about it, to tell the truth. It is regarded as some evidence of the strength of the majority opinion, the number of dissents it attracts. But I had never thought there was a lot of difference between one Justice and two Justices dissenting, other than the obvious fact that the numbers are different.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Isn't the number of times one votes with the majority and the number of majority decisions one is selected to write a better example of one's position with respect to the "mainstream" of thought on the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think that is quite right, Senator.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. And you measure up rather well in that criterion, do you not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think so, when compared with a number of my colleagues; the number of times I have been with the majority as opposed to in dissent is greater for me than with some of my colleagues. I am by no means the person that is most often with the majority.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Thank you, Justice Rehnquist. I just want to comment on the question that was raised regarding the deed and your property in Vermont. I am satisfied with the explanation you gave yesterday. I also would suggest to my friends that maybe they should look at all their deeds. I have not done that myself, but having several pieces of property in the State of Arizona, it would not surprise me if some of them might have embarrassing clauses that were put there before I was born. And I certainly would resent anybody—and I am not accusing anybody of doing that—who raised the issue that I was unsensitive to the Hebrew religion or any other sect, because I do not think that is the case at all. And I think the Senator from Vermont spelled it out very clearly yesterday. There is a procedure to rectify the problem of the restrictive covenant. I understand from the testimony yesterday that you are prepared to rectify this situation, even though it may not be necessary, to demonstrate your sensitivity to that subject matter.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I am.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I thank you. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Kentucky.
Senator Mitch McConnell (KY)
Senator
(R)
Senator MCCONNELL. Mr. Chairman, I will be happy to yield back my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from North Carolina. Senator BROYHILL. Mr. Chairman, this committee has a great number of witnesses that are waiting to testify, and I would like to yield back my time so that we can finish our work. It seems to me that we need to move ahead.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman. 229
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Massachusetts. The next one would have been Vermont, but I can take you since you are ranking. What do you want to do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have got some questions.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Certainly, I will yield to the Senator from Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I will yield, too, to the Senator from Massachusetts. Would you yield,
Senator Paul Simon (IL)
Senator
(D)
Senator Simon? Senator SIMON. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I hope my time is starting now.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Ten minutes, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Justice, the Senator from Vermont brought up some questions yesterday about the restrictive covenants in certain titles, and Senator DeConcini has referred to it again. The FBI report indicates that also on October 24, 1961, you obtained a title to lot 3, which is in the Palmcroft subdivision in Phoenix, AZ. Are you familiar with that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly, we owned a home in Palmcroft, AZ from about
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, did you acquire it in 1961?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, that sounds right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And October 24 sounds like about the time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, that sounds right.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. DO you still own that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU sold it. When did you sell it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe early 1969.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. On that particular provision, there is a report by Mrs. Gladys Cavett, who is the Customer Service Department, Arizona Title Co., who advised that further research of the records of the title company revealed a warranty, deed number 328623, dated July 30, 1928, relating to lot 3 of the Palmcroft subdivision, Maricopa County, AZ. And article 11 of the warranty deed is as follows: No lot nor any part thereof within a period of 99 years from the date of filing of the record on the plot of Palmcroft shall ever be sold, transferred or leased to, nor shall any lot be a part thereof, within said period be inhabited by or occupied by any person not of the white or Caucasian race. Were you familiar with that particular provision?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly do not recall it, no.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, would you have read through the warranty deed when you bought the land? Do you have any recollection? It is a long time ago.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is 1961. I simply cannot answer that, Senator. It was a title company transaction, I think, and one relies on the title company for the sufficiency of the deed. I simply cannot answer whether I read through the deed.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. But you have no knowledge whether in that warranty—you did not examine the warranty deed about any restrictions on the property? 230
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly have no recollection of it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would you now, if you purchased property?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Would I
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes. Would you now examine the warranty if you purchased property today?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, if a lawyer were handling the thing for me, and there were any sort of a complicated warranty, I think I would tend to rely on the lawyer.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Even when you are familiar that there were those kinds of restrictions in many parts of the country—I expect even in my own part—with regard to either Caucasians, whites, blacks, or Jews?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Your question is would I examine a warranty deed now?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Yes, to see if there is any restriction. Would you care if you joined a country club or something that restricted women or Jews
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, no, certainly not.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [continuing]. Or blacks?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you would know about that, then. You would find about that before you made application, I assume.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I would.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, would you check and see if there were any restrictions in terms of the purchase of property?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, in terms of—yes, I think I would.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you did not before, evidently; you did not in 1961.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It simply had not occurred to me.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, when did it start occurring to you?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, the discussion today, or last evening certainly has brought it out. [Laughter.]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, you do not think that you should have before, any time? You do not think you should have before today, or yesterday?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I must say my normal approach in looking at a statement, or a statement of title, was does it convey good title and that sort of thing. I certainly not only thought, but knew, that this sort of a covenant is totally unenforceable and had been for years, since a Supreme Court decision a long time ago. So, while very offensive, it has no legal effect.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, did you sign the deed of transfer when you sold the property?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am sure I must have.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, was the restriction still in it then?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot answer from my own knowledge, but certainly, we had done nothing to remove it, as I recall, in the years—I would think it probably was.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Let me go to the Laird v. Tatum situation Mr. Justice. You wrote a memorandum justifying your decision to sit on the case, did you not?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did. 231
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And you talked about the ABA standard, that it talked about not just impropriety, but the appearance of impropriety, and you basically had already made up your mind about that issue and about the very case that raised the issue in Tatum v. Laird. And I would suggest there was no abstract constitutional question. You were discussing the very case you later decided to rule on. You told Senator Ervin when you thought about the merits of the case, which was then in the court of appeals. You in the case arrived on the Supreme Court decision, sat on the case, and made the ruling, and cast the deciding vote, 5-to-4. In your testimony before Senator Ervin in the subcommittee you said, My only point of disagreement with you is to say whether, as in the case of Tatum v. Laird that has been pending in the court of appeals here in the District of Columbia, that an action will lie by private citizens to enjoin the gathering of information by the executive branch, where there has been no threat of compulsory process and no pending action against any of those individuals on the part of the government. One of the obviously fundamental principles of the judicial system is that the judges have to be fair and impartial, and judges are not supposed to sit on cases where their minds are already made up. You had basically made up your mind on that issue, had you not, Mr. Rehnquist?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, as you say, I prepared a memorandum considering the request that I disqualify myself in deciding that I was not obliged to, and that I should not. I think disqualification is a judicial act, and I do not believe that I ought to be in a position here of defending something that I did in that capacity as a Supreme Court Justice.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the question, I think, is whether you had taken a position on it. This is not what you may consider an ordinary case. It was involving the demonstrators—it involves first amendment rights—demonstrators, surveillance by military personnel. You basically resented those demonstrators. Now you had a chance to do something about it. You indicated what your position would be; whether it was a justiciable cause, in response to an exchange with Senator Ervin. You made up your mind evidently that those demonstrators were not going to get their way in the Supreme Court, even if you had to sit on the case to break a tie, even if you had to violate the ABA rules and the fundamental principles of justice to do it. I thing that is wrong. I am not alone in that thinking. I do not know if you are familiar with the articles that were written by Jack MacKenzie about this case. It says, "Justice Rehnquist called this exchange"—the one I just read, where you indicated that there was not a justiciable cause in the Tatum v. Laird—"in his memorandum, 'a discussion of the applicable law' "—these were the words you used in your memorandum on this issue. And then MacKenzie continues, "But this, as all lawyers will recognize, and most lawyers will freely state, is not a mere discussion of the applicable law; it is a statement of how the law should be applied to a particular case. And, try as he might to restate the matter, Rehnquist judged the rights of parties after giving his view." What is your reaction to MacKenzie's conclusion on this as well? 232
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That I was performing a judicial act, and that
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator's time is up, but we will let him answer this question.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST {continuing]. I ought not to be called upon somewhere else to justify this.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, I would just ask that the Rehnquist memorandum, the exchange with Senator Ervin, and the McKenzie article be printed in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered. [Documents follow:] The CHAIRMAN. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Just one comment. Why don't we clear this up. This is the biggest "red herring" I have seen in the whole hearing. There are a number of them, is this business of these titles. Justice Rehnquist did not know about it. He found out about it through this hearing. It is good that he has. Under Shelly v. Kramer, everybody who understands constitutional law knows that these provisions are unconstitutional and may not be enforced by the courts in this country. I wonder if I could ask my two colleagues from Arizona and from Vermont if they would just ask the public officials to strip those deeds of those provisions, and let us get rid of them. Or I suppose you could go through a quit-claim process and just get them stripped off. As I understand it, Justice Rehnquist has suggested he is going to take them off.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Just a minute. Let Senator Hatch get through.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Justice Rehnquist said he did not know about them. He is going to take them off. I think it is ridiculous to make a big brouhaha about something this ridiculous.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, they are unenforceable, anyway. They do not amount to anything. They will all go out.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It is ridiculous.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I do not know if it is ridiculous.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Of course it is ridiculous. You know it is ridiculous, I know it is ridiculous. It is not enforceable.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NO, I do not know it is ridiculous at all.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. If the Senator would
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Hatch has the floor.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU are jumping on every little possible detail. Let us be honest about it. I do not know a lawyer alive who goes through a house closing who reads every one of those documents if he has another lawyer doing it for him. I never have; I do not think you have.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would the Senator just yield on that point?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would be happy to.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I think part of the question is, this nominee was an official of the Justice Department, the Justice Department of the United States
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Well, what has that got to do with it?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY [continuing]. In 1969 when he transferred a property that had that kind of a restrictive provision in it. And I think that is completely
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And 2 years before, Vermont enacted a statute saying that is not possible to do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That is completely—we are not talking about a person who transfers a home who has not that particular responsibility. This is a member of the legal counsel of the Justice Department.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. If the Senator would yield
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I might make this statement
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would you do that for us, Senator DeConcini. I would be happy to yield. 263
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I might make thi& statement. We have had numbers of nominees here that have been involved in this way.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. This is ridiculous.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. They bought property and did not realize it had certain restrictions. But whether it had restrictions or not, they are unenforceable, and they do not amount to anything, and that has all been acknowledged, so why waste more time? The distinguished Senator from Vermont.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The Senator from Arizona asked me to yield.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Oh. I thought you were through.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO, I was not.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Would the Senator from Utah yield?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would be happy to yield.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I just wanted to pose a question. I wonder how many of us on this committee could say that we have never owned a piece of property, either in trust or in escrow or in our names, without being completely familiar with the provisions of the deed. Maybe the Senator from Ohio can say that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That is right. I could not buy my home, according to the seller.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. I would be glad to yield to him. I just made reference to the Senator; I did not yield. It just seems to me that perhaps we should ask the FBI to look at all of our property
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would like that.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI. Of everybody here, and those properties
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I do not know what is in my deed.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. If the Senator would just let me finish
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Just a minute. The Senator from Arizona has the floor.
Senator Dennis DeConcini (AZ)
Senator
(D)
Senator DECONCINI [continuing]. That are held in trust for our beneficial interests, to see whether or not there are any such restrictions that might have been put there years ago, because I suspect that we would find such restrictions. And if we did, that would determine absolutely nothing as to the character of anybody on this committee, or to their insensitivity, in my judgment.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Would the Senator yield on this point?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would be happy to yield to my esteemed colleague.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have no objection to the request. I think the point that has to be made is the real question of the sensitivity of this nominee on the issue of civil rights. That is a major issue concerning this nomination.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It may be in your mind, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. None of us are being nominated for the Supreme Court. The question with this nominee is the sensitivity on the issues of civil rights. And I think that these are not matters which are inconsequential for us or for the members of the Senate to draw some
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman, if I could just finish on my time, Mr. Rehnquist, this matter is blown way out of proportion. It is difficult to see you getting raked over the coals about events that happened 34 or 35 years ago. I could hardly believe my eyes when I 264 watched the headline news this morning on television. It was as though it was really something. These types of covenants are vestiges of a very bad past. Everybody knows they are illegal. They have been illegal since Shelly v. Kramer. There is no legal reason to remove them. However, we all wish they were gone when we find out about them. You have made it clear that now that you have found out about it, you want to purge any deeds that you and your wife hold with this type of language. I suspect that there are a lot of sincere, decent, wonderful people in this country who are totally against discrimination. However, they probably have these covenants in their deeds because they have not read them. Now, to blow this out of proportion as though this is something this important, with a man who has sat on the Supreme Court for 15 years, who has an excellent record in all respects and who every member of the present Supreme Court looks forward to serving with as Chief Justice, is ridiculous. That is what you have to go through. Senator Simpson summed it up in his opening remarks.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Vermont.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you, Mr. Chairman. Justice Rehnquist, to follow up a line of questioning that Senator DeConcini had earlier, do you—and I realize this is a subjective question; you have been the lone dissenter in many, many cases— do you feel a greater independence in dissenting if you are the lone dissenter than if you were the swing vote in a 5-4 decision?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, very much so, Senator. If you are the swing vote in putting together a five-judge majority, you have some leverage, obviously, but so does everyone else. The opinion, if there is division among the five, is apt to be a composite; whereas if you are a sole dissenter, you are writing only for yourself.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And do you find if you are one who may well be the swing vote or the person writing the majority opinion, especially in a 5-4 decision, that some of the expressions or—I hate to use the word "extreme" position—some of the very strong positions that you might take as a lone dissenter are no longer available to you? I am not trying to put words in your mouth. I am just wondering how that process goes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. There is no doubt that when a Justice is assigned an opinion to write where the majority has only five people in it, the Justice cannot just write the ticket the way the Justice himself sees it. You have to accommodate the views of the four other people whom you hope to join your opinion. So, there is often compromise, because it is unlikely that five people are going to see any important issue just exactly alike. And, on the other hand, as you point out, when you are writing for yourself, there are not those constraints on you.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, while the Senator from Utah is still here—if I might have the Senator from Utah's attention just for a moment—well, even without the Senator from Utah's attention, I will continue. 265
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah, he v/anted you to hear something if you would care to.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I know my good friend from Utah would like to hear it. [Laughter.] I know the Senator from Vermont has expressed the opinion that the question of restrictive deeds has been somehow blown out of proportion and is a "red herring." I would remind the Senator from Utah that I think about 90 percent of my time yesterday was talking about the Laird v. Tatum case and involvement of it.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I agree with that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I do feel, however, with this issue, we should have at least raised it, and I do not think Justice Rehnquist would have expected it to not be raised. I would
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would the Senator yield on that point?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY [continuing]. If I could just finish, I would be happy to—I would note that under Vermont law, it is indeed null and void—and as the only member, I think, of the Vermont Bar here on this panel, I can state that with a great deal of certitude— it would be certainly null and void under any Federal law. And I was asked this morning by some in the press how I would determine whether you were indeed going to have it removed. I said it is very simple: You said you would. And I accept that assurance completely. I do not need any proof or followup. You have said that you will have it removed. There is a fairly simple procedure using a strong deed. I accept your assurances completely, and I think that that—to save all the telephone calls that I might be receiving in my office as we follow that. You said it; I believe it. I would also point out that there has been nothing in my review of your statements—and I have done a very exhaustive review of your statements, cases, and your background—I find nothing in your statements or your background to suggest any anti-Semitism in that background. This was a covenant added to your deed. It was brought forward from an earlier deed. The fact that that covenant is in there, I find regrettable that it is, and I am glad you are going to remove it. But its inclusion in no way suggests to me any kind of an antiSemitic background. I note that just so that following the statements from the Senator from Utah, I would not want any of my questions to be misinterpreted. But I would also say that as I go through the report and see obviously a Vermont deed, and seeing something that I have never seen in my years of practice in Vermont, that probably, it should be asked.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Would the Senator yield on that point?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Hatch asked you if you would yield.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Of course.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I would like to just compliment my colleague from Vermont. I find no problem with raising the issue. What I find problems with is blowing it out of proportion. I know the distinguished Senator from Vermont did not. The Justice has spoken very carefully and accurately on it. The distinguished Senator from Vermont has spoken carefully, accurately and compassionately on this issue. And I appreciate it. It is time to put it to bed. To make this issue the No. 1 story on major network news this morning was reprehensible, but that is what happened. It has been blown out of 266 proportion. Those who made it the No. 1 news story know the law too. I am suggesting that if there are good points, they should be brought up. However, they should not be blown out of proportion like this. I want to thank my colleague from Vermont for his fair comments.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Vermont may continue.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I think Justice Rehnquist wanted to say something, and we cut him off.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I did. I completely agree with your characterization of me, and the statement that I plan to do something about it is correct, and I will see that it is done.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Thank you. I have no further questions, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Mr. Chairman, the Senator from Pennsylvania has asked if I would yield.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. IS that any problem for you, Senator Mathias? Senator MATHIAS. NO problem as long as we do not fall too far down the ladder. Senator SPECTER. I thank my distinguished colleague.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I want to make an announcement at this time. So, Senators come here and stay for hours, and then some other Senator who normally would have ranked him comes in and gets ahead. Hereafter, I am going to go right down the line, and if any Senator is not here, then he will have to wait until the end to question. It is not fair to other Senators who have been here for hours. The distinguished Senator from Pennsylvania.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mea culpa, mea culpa.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Chairman. I think I do fall within the category of Senators who have stayed here for hours. I thank the Chair.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I thank you for it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Justice Rehnquist, just one or two questions on the issue of the restrictive covenant, which does concern this Senator. When did you first find out about it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The last couple days.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. And have you had an opportunity to do anything about it in the interim since you found out about it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I frankly have not, Senator. I have been so busy with these hearings that I simply have not devoted myself to anything else.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. When would you anticipate that you will be able to have the matter corrected?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I intend to write the lawyer in Vermont who handled the transaction for me today when the hearings are over, if they are over for me today.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Justice Rehnquist, I want to pursue the question which I had asked you about yesterday, because I think it is a very fundamental one. We started with the case of Marbury v. Madison, which you testified you had no trouble adhering to, and that is the basic authority of the Supreme Court of the United States to interpret the Constitution and to hand down rulings 267 which are binding on both the executive and legislative branches. And I then asked you about the question of whether that rule could be circumvented directly by a legislative enactment which would take jurisdiction from the court. And the area of concern illustratively that I posed was, could Congress legislate and say that the Supreme Court had no jurisdiction to decide cases involving freedom of speech, freedom of press, freedom of religion, taking those as the most fundamental of our rights under the first amendment. And I do believe that it is an appropriate area of inquiry, and when my time expired, I said that I would review some of the authorities in the field; and I have found some of your own statements on the subject which support the position that I am asserting in asking the question, and I will reference them to you at this time. There was a memorandum prepared in anticipation of the hearings of Justice O'Connor, prepared by Grover Reis, who was on the staff of Senator East, chief counsel on the Subcommittee on Courts. Mr. Reis had been assistant professor of law at the University of Texas, and then he went to work for Attorney General Meese at the Department of Justice, screening judges, and now, as I understand it, he is the chief judge of the United States-operated court system in American Samoa. And it is an extensive commentary, and I shall quote from only limited parts of it because of the limitations on time. The basic outline is summarized by Professor Reis, or Judge Reis, as follows: The controversy over questioning at confirmation hearings stems from a tension between two incontrovertible propositions. First, the Senate has a duty to exercise the advice and consent function with the most careful consideration and the greatest possible knowledge of all factors that might bear on whether the nominee will be a good or bad Supreme Court Justice. Second, a Justice of the Supreme Court owes the litigants in each case his honest judgment on what the law is and such judgment would be compromised if the nominee were to promise his vote on a particular case or class of cases in an effort to facilitate his confirmation. There are a great deal of other important matters which follow, but I am not going to go into it at this time; I may come back to it later if it is warranted. Judge Reis then quotes from Professor Black, and then he quotes from you, Justice Rehnquist, on writings that you made in 1959, discussing the nomination of Justice Charles Whittaker. Mr. Rehnquist complained that the discussion had, "succeeded in adducing facts, (a) proceeds from a skunk-trapping in rural Kansas assisted him in obtaining his early education," referring to Justice Whittaker; "(b) that he was both fair and able in his decisions as a judge of the lower Federal courts, and (c) he was the first Missourian ever appointed to the Supreme court; (d) since he had been born in Kansas and now resided in Missouri, his nomination honored two States." Judge Reis goes on to say: Mr. Rehnquist distinguished the Senate's duty in voting on the nomination of a judge of a lower Federal court, whose principal duty is to apply rules laid down by the Supreme Court and whose integrity, education and legal ability are the paramount factors in his qualifications from the confirmation of a Supreme Court Justice. Then he continues to quote you: 268 The Supreme Court in interpreting the Constitution is the highest authority in the land; nor is the law of the Constitution just "there" waiting to be applied in the same sense that an inferior court may match precedents. There are those who bemoan the absence of stare decisis in constitutional law, but of its absence there can be no doubt. And it is no accident that the provisions of the Constitution which have been most productive of the judicial lawmaking, the due process of law and equal protection of the law clauses, are about the vaguest and most general of any in the instrument. The court in Brown v. Board of Education citation held in effect that the Framers of the 14th amendment left it to the court to decide whether due process and equal protection, what they meant. Whether or not the Framers thought this, it is sufficient for this discussion that the present court thinks the Framers thought it. 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? The only way for the Senate to learn of these views is to inquire of men on their way to the Supreme Court something of their views on these questions. Now, I do intend to ask you some questions about due process of law and equal protection. But at this juncture, I want to make a sharp distinction between the interpretation of due process of law and equal protection, which is subject to certain vagaries, as you noted there, and the jurisdiction of the Court. It seems to me that questions of jurisdiction are much more, infinitely more, fundamental than how you interpret due process or equal protection, because the Court cannot get to that question or those questions until the court decides it has the power to decide the case. And it is in that context that I do press, for an answer on the issue of whether the Congress, in your view, has the authority to say the Supreme Court does not have jurisdiction on* first amendment issues of freedom of speech, press and religion, because if the Congress has that authority, then it seems to me there is nothing left of Marbury v. Madison.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, you said yesterday that you thought Justice O'Connor in her hearings had answered a similar question. I still have considerable reservations about it, whether I ought to do it, but I am sure you are correct, if one of my colleagues has felt that that was proper, I certainly will resolve doubts and try to give you an answer. The answer obviously is not one that comes with the benefit of reading briefs, hearing arguments, conferring. It is very much of a horseback opinion; it has to be in a situation like this. And I think that it would be very hard to uphold a law which carved out certain provisions of the Constitution such as you are describing, the first amendment, and said the Court should have jurisdiction over everything except first amendment cases.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, the statute could be enacted which would say the Court shall not have jurisdiction over first amendment cases involving freedom of speech, press, or religion. That is my area of concern, specifically stated. And I take it from your answer you think that the Congress would not have that authority.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is correct.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I am glad to hear you say that, Mr. Justice Rehnquist. When you make that statement with respect to the absence of Congress' power
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator's time is up, but you can go ahead and ask and let it be answered, and then we will pass on. 269
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I have more to ask, Mr. Chairman, so let me pick it up on the next round.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. OK. The distinguished Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Justice Rehnquist, you have been asked about the memorandum authored when you were a law clerk with Justice Jackson, and particularly this language: "I realize that it is unpopular and an unhumanitarian position to which I have been excoriated by my liberal colleagues." When you were a law clerk for Justice Jackson, I believe there has been testimony that each Supreme Court Justice had one law clerk each. Did the law clerks refer to themselves as colleagues?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not that I recall, Senator. I believe there were two law clerks each in most chambers at that time.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU do not recall whether or not the law clerks referred to themselves as one would speak of his relationship with other law clerks as being my colleagues?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I honestly do not, no.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. DO you recall whether, if that was prevalent, a law clerk would refer to his principal, to his judge, as saying that my colleagues have said such-and-such?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, it is 32 years ago, or whatever it is. I just have very great difficulty remembering whether something like that might have been said or might not. I am sorry.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, I have inquired of my staff whether the staff of the Judiciary Committee refers to other members of the staff as members of a group—as colleagues, and I am informed that they do not; but, of course, there could be a distinction between institutions and close-knit groups. Now let me ask you about your law practice. I gather from your questionnaire, that you practiced law for 15 or 16 years in Arizona. In that law practice, did you become involved in real estate practice to any degree?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think you would say my practice had a large element of real estate in it. I know I handled some commercial closings on occasion, but I do not think it was a significant element.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, now, some bars write title opinions, examine abstracts; some bars in some cities rely upon a title company to do it. I, as a small-town lawyer, used to write title opinions, and I would come across clauses like Caucasian or Jewish. One would note it as an exception to the fee simple title, but universally all title opinions that I recall writing or reviewing, would recite that this is void and unenforceable. I just wondered whether or not you might have had any experience in your law practice writing title opinions, whether or not you first did it in Phoenix, whether or not you did write title opinions, and whether or not it was written as I have recited?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, Arizona was pretty much of a title insurance State. That is, the title companies had taken over from the lawyers, at least by the time I left, most of the kind of title opinion work. And people who were simply handling a real estate transaction did not feel they needed lawyers. 270 But I think the title insurance company report followed exactly the procedure that you suggest, a notation of the covenant in question and the notation that it was void.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NOW let me direct a little bit toward the issue of federalism, about which a good deal has been written concerning your concepts. Of course, I have a strong belief in federalism, not as an old-fashioned concept of States' rights, but as a belief in State's responsibilities and confidence in the States to govern. This belief is buttressed by the realization that State and local government is closest to the people. We see unusual things happening on the congressional scene today. We see the left wing knee-jerk liberals and the right wing knee-jerk hardliners all embracing the concept of one Federal legislative act as the cure for any major problem. Now, these widely diverse ideological groups are soulmates on procedure as to finding a single cure. For example, this may sound unusual for the people on the right, but we have had legislative proposals here that would in effect, by a single stroke of the legislative pen from one single legislative act, cure all of the problems dealing with abortion, gun control, tort reform, labor violence, and others. My question is, does your belief in constitutional government include a belief that there should be a deference to the States in seeking solutions in areas that traditionally and historically have been considered to be within the jurisdiction of State governments?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, certainly, constitutionally, I feel that way any time the Constitution speaks to the question. I think I said yesterday in answering a question from Senator Broyhill that a lot of those decisions are really nowadays for Congress rather than for the Court, because the commerce power of the Congress is so sweeping. It is a question whether Congress leaves part of it to the States rather than whether the courts are going to set aside part of it for the States.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, does this include criminal laws dealing with the protection of life?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, certainly Congress has never made the slightest suggestion that any State law, any State criminal law of the area you describe should be superseded. And I would be very, very reluctant to read that into anything read by Congress. The Bill of Rights, applicable to the case, obviously limits the way a State can proceed against someone who has violated its criminal laws, but it certainly does not say that you cannot have the criminal laws.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Does this also include legislation dealing with the civil tort system of the country? Is your belief that there should be a deference to the States?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, my belief in that area is certainly that the civil tort area is one of the few Congress has still left to the States, and it would be nice to see them keep it for a while.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. YOU are basically considered a conservative. Would you give us your thoughts on how a conservative looks at stare decisis?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Stare decisis is the principle, of course, that once a case has been decided—let us take the Supreme Court, for 271 example, because that is what I have been nominated as Chief Justice of—once the Supreme Court has decided a case, that that decision settles the law for the future. And I think—and I am not sure that there is a great deal of difference between conservatives and liberals here, though perhaps I am wrong—when you are looking at a statutory question—that is, let us suppose that in 1950, the Supreme Court has said that a particular act of Congress means thusand-so, and now, 36 years later, someone is coming back and saying, "Well, the Court was wrong in 1950. If you really look at the legislative history and construe the words the way they ought to be construed, it did not mean thus-and-so." I think every responsible judge would reject that sort of an attack, except under the most extraordinary situation, because when you are talking about a statute, Congress can change the result if it does not like the conclusion the court reaches. If you turn to a similar constitutional question that perhaps was decided in 1950, and now you are urged to reverse it and overturn it in 1986, there is more flexibility, more play in the joints, but still a very strong presumption in favor of the earlier decision, it seems to me. But nonetheless, the stare decisis principle has a more flexible application when you are talking about constitutional decisions than when you are talking about simple statutory decisions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up. We will now take a 10-minute recess. [Short recess.] The CHAIRMAN. The committee will come to order. The distinguished Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. Justice Rehnquist, let us see if we can put this covenant question to rest. Did you personally attend the settlements for the Vermont property or the Arizona property, or did you handle that through counsel?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS to the Arizona property settlement in 1969, I can answer with certainty, because I was back here in Washington by that time, and the house was sold in Arizona. In fact, my wife and kids stayed in Arizona to handle the house sale. So I did not attend that. The Vermont settlement, I do not believe I attended, but I cannot be sure. Since I was represented by counsel there, I have a feeling I probably did not.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. SO you simply, to the best of your recollection, provided him with a check and told him to go ahead and settle the property and record the deed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is my recollection, and of course, signed the necessary instruments.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. At the time of the 1969 sale of the Arizona property, you were here in Washington and your representative in Arizona forwarded you the deed to be executed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, we were selling at the time—the deed, yes, I would have, I think, signed it back here and sent it back to Arizona.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. DO you recall whether the covenant was merely back in the chain of title and referred to by kind of general 272 language about, "being all the same property, conveyed by John Jones, and subject to the restrictions therein," or was the covenant set out in explicit words?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I just do not remember.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, I assume that that is a matter of record, and we can determine that.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would think so.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. If we could turn to the question that we addressed yesterday: the alleviation of the docket burden. It is my understanding that a committee of four Justices decides whether to grant certiorari.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It only takes four Justices to grant certiorari. When you say a committee, Senator
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, that was my word.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is just nine people, basically, sitting around a conference table, and it takes four votes to grant certiorari.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I did not mean to imply there was any committee structure. I understand that it takes four votes for the court to grant certiorari. Would it be more restrictive, or would there be a lesser number of certs granted, if five Justices were required?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think obviously it would be a smaller number if you require five than if you require four.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. would that be desirable in the interest of justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I suppose it depends in a way on how you define the interest of justice. My colleague John Stevens made the suggestion several years ago that one way to help the court's docket would be to require five Justices rather than four to grant certiorari. And it would help the court's docket in a sense in that you would have fewer cases granted, or perhaps different cases granted. But it would also mean it would be more difficult to get certiorari granted; that someone who now gets a hearing in the court by virtue of getting four votes might not get that hearing if five votes were required.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Considering the overall interest of the administration of justice, if that would relieve the docket and provide the court with more time to be thoughtful and effective, that might promote the overall administration of justice even though fewer writs were issued.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly it would limit probably the number of cases the Court takes. I do not right now feel that the court is taking too many cases, but I think some of my colleagues probably do.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Based on your years of experience as a member of the Court, do you believe that any legislation is required to effect reforms to alleviate the court's docket? For example, would Chief Justice Rehnquist recommend to this committee that we act to abolish the court s mandatory jurisdiction?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, it sounds trite to say that I am glad you asked that question, but in fact I am glad that you asked that question. That is a matter upon which all nine members of the Supreme Court, I believe, have expressed agreement. And there is not 273 that agreement on the national court of appeals or on four versus five votes to grant certiorari. I believe all of my colleagues are of the view that the present vestigial mandatory jurisdiction of the court is not necessary for any purpose of justice, and it requires us to hear cases on the merits that we would otherwise not hear.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What about the Inter-Circuit Tribunal that Chief Justice Burger has been ardently advocating? I know you have written on that subject, and have predicted that a national court of appeals as I think you referred to it, would function in the future as a lower chamber of the Supreme Court. Could you flesh out that suggestion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would be happy to, Senator. I do feel quite strongly that we need a national court of appeals to provide us with more nationwide decisionmaking capacity. Right now, the Supreme Court is the only body in the country that has the capacity to decide a legal question on a nationwide basis. And I think a properly-constituted national court of appeals could, by taking statutory cases primarily where there is a conflict between the courts of appeals, take some of that burden off of our court so that our court could take on additional cases, perhaps in the Constitutional area.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. One of the controversial features of the InterCircuit Tribunal discussed by this committee was the proposal to have judges from the circuit courts nominated by the Chief Justice. In the alternative, we considered empowering each circuit to nominate a representative for the Inter-Circuit Tribunal. Do you have any views on how the court should be created and staffed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do, Senator. Let me say that if it were necessary to compromise or change my views on any of the views as to how the judge should be selected, or how it should be staffed, I would cheerfully charge them in order to get the national court of appeals. To me, the other things are secondary matters. But my own view is that appointment by the Chief Justice is unsatisfactory because it gives the Chief Justice too much authority over how this particular court should be constituted. I think that the proposal for selection by the Circuit Councils is unsatisfactory because I think that would turn the new national court of appeals into something like the United Nations, where the judges on it are primarily loyal to where they came from, rather than to where they are coming to. In my view, the ideal solution—and maybe Congress is not yet willing to provide this—is to frankly recognize it is a new court, it is going to be here to stay, that the judges should be appointed by the President and confirmed by the Senate—new judges.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Your time is up, Senator. The distinguished Senator from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you, Mr. Chairman. Mr. Justice, just to follow through on one question that we discussed briefly last night. If at some point in the future, you were to have serious health problems, would you be frank with the American public about those problems?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I would.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you. Second, there is in the Canon of Ethics of the American Bar Association a passage which states "It is inappropriate for a judge to hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin. Membership of a judge in an organization that practices invidious discrimination may give rise to perceptions by minorities, women and others that the judge's impartiality is impaired." Do you belong to any organization that might fall in that category?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I belong to an organization that I think some people might say would fall into that category, and that is the Alfalfa Club.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I confess I am not familiar with the Alfalfa Club. Do you feel that membership in that organization is proper, or do you think the Code of Ethics should be changed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think the Code of Ethics should be changed, but I think when you understand what the Alfalfa Club is, that I do not believe it meets the standard. The Alfalfa Club is something that I believe has been going on here since 1914, and its only function is to, once a year, hold a dinner. And the Alfalfa Club, as I understand it, is open to men only. And it is not a social club except in the sense that these people get together for dinner once a year, and hear some patriotic music, hear some funny political speeches, and then go their ways for the rest of the year.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I do not mean any disrespect to the Alfalfa Club; I have asked nominees for Federal court—either district court or the court of appeals—when they belong to organizations that discriminate, to let me know before I voted on their nomination, whether they would continue that membership. Again, the Alfalfa Club sounds like it is part of the old boys network, and while the tradition may go back to 1914, some traditions that go back to 1914 are not good traditions. I would simply ask you to reflect upon it and, prior to our voting here in the Judiciary Committee on your nomination, I would appreciate your letting me know whether you wish to continue membership.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly. I would be happy to.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Let me pose the fundamental question for me— you have been through the confirmation process, both in the last 2 days or and in 1971, and you have reflected and written on the subject. Here is my struggle: On the positive side, we have a nominee of above-average ability, by any standard. We have a nominee who has good writing skills. Most people may not count that as an important asset; I do. We have a nominee who has shown above-average courage. Some of my colleagues view your dissents, the number of your dissents and lone dissents, as a negative; I view it as a plus. If this country to a point where there is suddenly a massive outpouring of public opinion in the wrong directions, I want a Chief Justice who has the courage to stand alone, if necessary, on the side of justice. On the other side, particularly in the area of race relations, let's go back to the letter to the newspaper. My colleague Senator Hatch said, referring to the Bob Jones University question, that it posed 275 intricate, difficult questions. The difficulty is that the decisions you have made have been, with few exceptions, on one side of the record in this area. And, as I have said before, I believe the office of Chief Justice is important as a symbol. The other area where I come down on a different side on decisions that you would make is in that of civil liberties, particularly church-state relations. I know that you quoted Chief Justice Story and his summation of where we are favorably in one decision. With all due deference to Chief Justice Story, I do not think it is an accurate summation of church-state history. Anyway, I come down on a different side than you would in these areas. I have great respect for you. If you were Paul Simon, faced with that dilemma, how would you vote?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is a very difficult question, Senator. May I take a moment to think before I answer?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes. [Pause.]
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Obviously, I cannot give you any very good answer. All I can perhaps give you is two or three reactions to what you have just said. I think it is for you to decide, obviously, Senator, the extent to which your differing with me about my Constitutional views is a ground for voting against me as a nominee. I might add, just parenthetically, that my reference, I think, in the Wallace against Jaffrey dissent to Justice Story was not to adopt his view of the church-state, but to simply show that he, as a respected and contemporaneous commentator, back in the first half of the 19th century, took a view quite different than Jefferson's wall of church and state. I think that if it boils down to basically a difference between—in the mind of a Senator—and as I say, it would be presumptuous of me to say this to the Senators, except you have asked me to say it—what is this confirmation process all about? The President obviously has his role in it, but surely the Senate has its role, too. And the President is a sole individual. He can pick someone without—in other words, he alone nominates, whereas 100 Senators end up voting whether or not to confirm. And I suppose the question is how is the Senate's power to be exercised. And I know a lot of people have spoken on it and written on it. I think you probably have to say that a Senator should not simply say, "This is not the person I would have appointed. I would have rather had someone who felt the religion clause of the First Amendment should be much differently. Therefore, since this nominee does not share my views, I am going to vote against his confirmation." And yet obviously, the Senate certainly, I do not think, is limited to any particular qualifications. I think, again, putting myself in your place, which is very, very difficult, have I fairly construed the Constitution in my 15 years as an Associate Justice.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I thank you. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. That completes round two. Now we will start with round three if anybody cares to ask any questions on round three. I will temporarily waive my right to any questions. The distinguished Senator from Delaware. 276
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I would like to follow up on two things. One, I am just curious about your answer to Senator Heflin about whether or not you referred to in your recommendations to your Justice, Justice Jackson, your coclerks as "colleagues", and Senator Heflin pointed out that that is not what Senators' staffs do. And if I understood your answer, you said you did not recall whether you referred to. There is a certain memo that you wrote in re Stein, Cooper and Wisner, argued this day—I will have to get the date exactly for you—that you submitted to Justice Jackson, where you referred to your coclerk in the following way in the memo. You say, quote, Mr. Justice Cronson, not having heard the argument, did not participate in the consideration of this decision and recommendation. So you referred to your coclerk—just a point of interest—as "Mr. Justice". Did you, or do you, or do you want me to send this on down to you and see if it is the same typewriter and all that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I think I have seen that reference. I certainly did not call him "Mr. Justice" in the office. [Laughter.] I think it was really kind of a form of spoof.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That is why maybe the 'colleagues". And this same Mr. Cronson was reported in the New York— excuse me; let me get the paper right—the Washington Post on July 22, 1986 as saying that you strongly defended Plessy v. Ferguson, and that you would do that at your luncheon; you said that he was at luncheon meetings with clerks on the days before the 1954 decision, strongly defending Plessy v. Ferguson. Is he incorrect?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not think he is. Again, it is hard to remember back, but I think it probably seemed to me at the time that some of the others simply were not facing the arguments on the other side, and I thought they ought to be faced.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. SO you may have—now, that kind of adds—here, we have got a memo saying, "my colleagues excoriated me", and you say that you were referring to Jackson, not to you. And then you say, well, the implication is it probably was not you, it must have been Jackson, since the word colleague" was used. But then you have memos that you write where you not only say "colleague", you refer to your coclerk as "Mr. Justice", and then you have the—I am confused.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, I am confused by your question, too, because you say other memos where I refer to my coclerk as a "colleague"
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO; as "Mr. Justice."
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes. In other words, is it plausible to wonder whether or not you refer to your coclerks as "colleagues". Let me put it this way. If my staff referred to fellow staffpersons here as Senators, it would seem to undermine his later assertion that he had never referred to them as "colleagues". If he bothered to call them "Senators", jest or not, he might very well refer to them as colleagues—I mean, at least from my perspective. I guess it gets down to—I had not decided to pursue this line at all, quite frankly, until the Senator from Ohio raised it, and I thought you were going to indicate that, yes, it did reflect your 277 views and Justice Jackson's views, and you were arguing the alternative. But you categorically, as I understand it, suggest that the memo to which the Senator from Ohio was referring did not reflect your views, but it was in fact the views of Jackson, not yours at all. And one of the points that is made is that obviously, that is the case because you referred to "colleagues", and you did not call one another "colleagues" at the time—at least that was the defense made by the Senator From Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, I think in fairness to him, he said he did not recall.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I understand. I am trying to refresh recollection now. What I am trying to find out very simply is did you believe at the time you were a clerk for Mr. Jackson that Plessy v. Ferguson should not be overruled? Was that your view at that time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I think I answered that question when you asked it yesterday, that I had ideas on both sides, and I do not think I ever really finally settled in my own mind on that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. DO you have any doubt that the people with whom you worked thought that you believed Plessy should not be overruled? I mean, what view do you think that you communicated to other people at the time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I am sure, you know, as Don Cronson says, around the lunch table I am sure I defended it for the reasons I stated to you yesterday.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Just so you had both sides of it—not defending it because you really believed it, but defending it
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, as I said to you yesterday, I thought there were good arguments to be made in support of it. I am sure my talks with Don Cronson were certainly a good deal more detailed than they would be around the lunch table, and I probably expressed myself more fully to him.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. On the 14th amendment, you have indicated that—well, your decisions point out that you have a more restrictive view of its application to women than you do, for example, to blacks; and I think your reason is very clear as you set it out why, and one is the rule of reason test. But let me make sure I understand why you have the view you do about the 14th amendment. Is it because you believe that the 14th amendment was designed as you have once indicated, that it was obviously a Civil War amendment designed to deal with black codes; is that why? I mean, explain to me how you arrived at your
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I have written on that subject many times in the 15 years I have been on the Court, and it is almost impossible to encapsulate or summarize.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, let me encapsulate, and then maybe we can go from there. As I understand it, one of the rationales you argue, that you use, and you have used it in both speeches you have made and in decisions that you have rendered—let me read from your speech in my home State of Delaware, I believe it was before the State Bar, but it was in 1977. You said, "The question with which the courts have had to wrestle in the ensuing 110 years since the ratification of the 14th amendment, is just how much more did the framers of the 278 14th amendment mean than to prohibit Southern States from having black codes." End of quote. Now, is this the question as you see it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. IS what the question? The one you just read, how much more in addition to
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes, right.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think that is the question and a way of asking what the 14th amendment means.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. DO you think that the framers of the 14th amendment meant it only to apply to blacks and the black codes?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that was whom it was primarily directed to, but I do not think they meant to limit it to them alone.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Who else did you think they meant to encompass?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, Senator, I have written on that for 15 years in various Court opinions. If we are simply talking generalities
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST [continuing]. People who are similarly situated, probably, to be blacks at the time that the 14th amendment was adopted.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NOW, as I understand it, your theory as to what latitude a Justice has in interpreting the Constitution and provisions of this Constitution really relates to one that is much more in line with that recently enunciated by the administration of original intent, that it is very important to look back at what the original intent of the framers of the Constitution or the amendment was in order for you to know how it should be interpreted; is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am not sure it is entirely correct. I think original intent manifested in the words that the people that drafted the document used is a very important factor in deciding what the provision means.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. OK. Now
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. OK. I will come back to this.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Let me pick up, Mr. Chairman, on this original intent question, because I think it is an interesting one. It is one that has engaged the attention of the country in recent months. I suppose that the debate that has been going on can be summarized in two terms that are meant to capsulize the contrasting approaches to Constitutional cases; judges who seek to apply "original intent," and those who engage in "judicial activism," one of the Chairman's favorite phrases. It is a frequent experience for us on this committee to have nominees who come up and say that if confirmed, they would interpret the Constitution pursuant to the original intent of the framers. That is almost a matter of rote with nominees these days. And most of them are willing to take a pledge to resist judicial activism when they look at the Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. They have good judgment, don't they? [Laughter.]
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, they have prudence in any event. 279 But if we can get beyond those labels that I think distort the issue, as a practical matter, judges and even legislators are from time to time called to apply the Constitution to an issue that could not possibly have confronted the framers. There were virtually no public schools in 1787. Issues of prayer in school, school integration, the rights of handicapped students— all of which present difficult Constitutional problems—flow out of the public school system, that system did not exist either physically or, I am sure, in the minds of the framers at the time. How should the Court approach the problem of applying the words of the Constitution to problems that the Founding Fathers simply could not have foreseen?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, there are a number of provisions in the Constitution that are sufficiently general so that they have applicability far beyond what the framers, the people who ratified the Constitution, had before them at the time. In 1787, there was not a steamboat, there was not a railroad, there was not an airplane; yet they gave Congress no power over buggies or over post roads; they said Congress shall have power to regulate commerce among the several States. And that provision is obviously broad enough to embrace any number of things that have come after. And there is a due process clause in the fifth amendment to the Constitution and also an equal protection component in the due process clause. The fact that there were not any public schools in 1787 does not mean that those clauses of broad general applicability would not have application where appropriate to institutions that have come after the Framers.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Of course, a question arises in some cases as to which branch of Government should undertake the corrective action when the Constitution is silent. That question is illustrated from time to time in problems that require the court to enter the political thicket. For example, the one-man-one-vote decision, might have been decided by State legislatures, as far as congressional districts are concerned, or might have been decided by the Congress, but ultimately had to be decided by the Court. Is that one result which can flow from this doctrine that you have just commented on?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it certainly is one result that can flow from it.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What in your judgment is the way to ensure that the decisions of the Court reflect the application of constitutional principles to evolving problems, and to avoid having Justices simply substitute their personal views for the principles that are embodied in the Constitution?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think probably the best answer I can give is to nominate and appoint judges who sense the difficulty involved in judging; that, as Justice Frankfurter said, if putting on a robe does not make any difference to a man—and he put it as a man at that time; he would say "to a man or a woman" now, I suppose—then there is something wrong with that person. Someone who thinks that they are going to be able to go on a court and apply a whole bunch of kind of horseback opinions, the kind that you form from reading the newspapers, for example—and 280 I remember this experience, and I daresay an awful lot of other people have had it—of simply reading in the newspapers about a court decision, when I was a lawyer, and saying, you know, "How can that be? That sounds ridiculous." And my wife sits across from me now at the breakfast table, and she will be reading something that the court—and she said, "That is ridiculous." And certainly, when you hear a lot of these decisions described, they sound ridiculous. But sometimes you get back into them, and you see that a surface absurdity really is not an absurdity, in fact, and that your initial reaction to a particular case has got to be tempered by study and that sort of thing. I do not think taking any particular oath is going to get you a better judge.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Well, I suppose that that is what this nominating process is all about, to winnow out that very issue. Do I recall correctly that you said that you had never come to any final conclusion about Brown v. the Board of Education because of the stare decisis effect of Plessy v. Ferguson?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I thought the stare decisis argument in Plessy was a strong one.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Of course, the nine members of the Supreme Court, alone among all of the Federal judiciary, are the only people who can alter a precedent that is established by the Supreme Court. So, your views about precedent would become extremely important. When you were here in 1971, you answered a question about precedent by stating that, "A precedent might not be that authoritative if it has stood for a shorter period of time, or if it were the decision of a sharply-divided court.' Is that still your view?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it is, Senator.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. It would follow, then, that precedents with which you have disagreed, or with which you disagreed at the time you joined the court, but which have now been the law of the land for some 15 or more years, have gained in authority?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Other things being equal, I would think so, yes.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. SO, that as precedents, they are more binding because of the passage of time?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; again, other things being equal.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. IS a precedent more authoritative when it is issued, let us say, over your lone dissent than when you have persuaded two or three colleagues to join in it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think it is.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. And these are the kinds of considerations that you would have in mind when you were confronted with the possibility of overturning a precedent?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I suppose
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Rehnquist, just to wind up on the LairdTatum case, that was important, I believe, given our previous ex- 281 change. One of the important results of your vote and the majority opinion on that was the denial to the American people of the kind of discovery that might have taken place if there had been a different judgment, and in the course of discovery procedures, if that had been reversed, the American people would have probably learned a good deal more about the Huston plan and about the army surveillance of private citizens, and the CIA illegal domestic surveillance operations—all of which were going on at that time. You were in the Office of Legal Counsel during the period that was described in the earlier discussion. I have tried to get from the Office of Legal Counsel any memoranda that you might have written about that subject matter, about either civil rights or civil liberties, or about surveillances. Do you know whether you wrote any memoranda about those subjects?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would expect over a period of 3 years I probably did.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, is there any reason that you would be reluctant to provide those memoranda to us on civil liberties or civil rights or on national security?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I have them.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU have not retained copies of those?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think so.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, would you be willing to urge the Justice Department to make those available to us?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would certainly waive any claim that I have so far as the Justice Department
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, I might make a statement on that. The Justice Department feels that interoffice memoranda are confidential, they are privileged, and they do not intend to make them public. I concur with that opinion, because if the Attorney General cannot talk to his own staff in confidence and get their opinions and bat things back and forth, it seems the public is not well served.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, the President of the United States—and I would ask that his memorandum on this for the heads of Executive departments and agencies, subject, procedures governing response to congressional requests for information—I will ask that the entire memorandum be made a part of the record, Mr. Chairman. May that be made a part of the record?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection. [Document follows:]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I quote: Congressional requests for information shall be complied with as promptly and as fully as possible unless it is determined that compliance raises a substantial question of executive privilege. And the Justice Department refuses to say whether it does. It either ought to say that it does and involves the question on executive privilege, or these memoranda ought to be available to the members of this committee when we are considering the qualifications of this nominee on the basic issues and questions involving civil rights and civil liberties, the views of this nominee. And I think we do a disservice to the consideration of this committee and to the nominee not to be able to examine those. I have requested that. That request has been made to the chairman. We have received a response from the Justice Department refusing to make those available. The nominee himself this morning says he is quite prepared to waive any consideration. So, I would renew my request, Mr. Chairman, given the view of the nominee that he is prepared to waive any privilege, and that we make a request of the Attorney General to receive it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. If the Senator would yield
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Attorney General is the chief legal advisor for the President and the entire executive branch. The function of the Office of Legal Counsel is to act as his delegate. Therefore, the Assistant Attorney General for the Office of Legal Counsel is the lawyer for the President's lawyer. The internal materials in the Office are confidential and represent the highest form of privileged communication. These internal documents are the manifestations of far-ranging legal and policy considerations. As a matter of principle, the release of these documents would have a devastating impact on the full and free debate and discussion which are required in the Office of Legal Counsel. If the highest officials in the Nation are to have the sound and legal advice on which many of their important decisions depend, this debate must not be restricted out of fear that it may become public knowledge. Additionally, I question the relevancy of materials which are over 15 years old and which I understand were not requested during the 1971 confirmation hearings. For these reasons, I will not press any further for these internal confidental documents.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, I would point out that the remaining part of that paragraph I mentioned—I will read the full paragraph: Congressional requests for information shall be complied with as promptly and as fully as possible unless it is determined that compliance raises a substantial question of executive privilege. A substantial question of executive privilege exists if disclosure of the information requested might significantly impair the national security, including the conduct of foreign relations, the deliberative process of the Executive Branch, or other aspects of the performance of the Executive Branch Constitutional duties. Now, I would just say the failure of being able to gain that information, which the nominee himself has indicated his willingness to 287 waive, does a disservice both to the nominee, to the committee and to the Constitution. And what we are talking about here are civil rights issues, issues on civil liberties, in which this nominee had a very direct—anything that he would say with regard to the various domestic surveillance provisions. I think it is a real disservice to the nominee and this committee to refuse to insist that the Attorney General provide that information. I yield to the
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Although the witness might be willing to do it, the Justice Department feels that it would be improper. For instance, in my office, if I could not talk to my staff members confidentially and get their honest opinion, back and forth, and batting things back and forth, without the public knowing everything that went on, I do not see how I could well serve the public. The Justice Department feels the same way. They want to have freedom to discuss with their staff members, to write memorandums, to get suggestions, to make recommendations, but if all of it is exposed to the public, it would jeopardize the best interests of the public in my judgment.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, if I could just briefly comment on that, we may have much ado about nothing here. If the Justice Department does not want this to be released, all they have to do is exert executive privilege. If they do not exert executive privilege, then they should explain to us why they are changing a pattern they have kept for years and years. Let me just point two things out. In Mr. Cooper's nomination to go over to that Department and Mr. Brad Reynolds, where we asked for internal documents, we worked out an agreement, as we always have in this committee, where staff members went down in the presence of the Justice Department. In both of those cases, in this administration, Office of Legal Counsel documents were made available; they were made available with regard to both of those instances, No. 1. No. 2, let me point out that if the rationale which the Justice Department offers in fact has any validity, it seems to me it loses its validity as time passes. It is one thing to say that you are not going to allow contemporaneous memoranda out, and you do not want to in fact exert executive privilege. But we are talking about something that is 25 years old, as the Justice keeps pointing out to us; this is 25 years ago. What are we talking about here? How is the impairment of national security, or the impairment of the ability to do work going to be impaired by something 25 years ago? Third, as everyone who follows this knows, since 1977 they have published memoranda from the Office of Legal Counsel. It has been the policy of the Office of Legal Counsel to publish in a book memoranda. Now, I really do think this is a disservice to the nominee. The only implication that can be drawn from this, if executive privilege is not being exerted, is that there is something to hide. The nominee has nothing to hide, nothing at all to hide. 288 How can Justice possibly be harmed if in fact they are going to release memoranda that an assistant or a lawyer in that division wrote 25 years ago or more
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN [continuing]. On civil rights, unless it is of national security interest. And if it is, tell us, and we will stop.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU have stated it pretty well. This is the Office of Legal Counsel. You are not asking for Brad Reynolds' and Chuck Cooper's materials. You are asking for materials before this man becomes an Associate Justice of the U.S. Supreme Court. It seems to me that we ought to be judging him from that time forward. And you are asking it from the Office of Legal Counsel which to my knowledge has never given materials to us
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Oh, well, I have it right here.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [continuing]. And the reason is—let me just say this
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I have it right here in my mind. These are memoranda from the Office of Legal Counsel.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me say—not to my knowledge then.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Oh? [Laughter.]
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. They are right here.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Those are not from the Office of Legal Counsel. And I do not think you can prove it. They .are from the Office of Civil Rights. Do not misstate the law. Do not misstate where you got them. I do not know of any case where you have been able to get materials from the Office of Legal Counsel.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. If I can help the Senator, these are from the Office of
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Let him finish.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Oh, I am sorry. I was going to answer his question.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. GO ahead and answer.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. They are from the Office of Legal Counsel to the House of Representatives
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. They may have been delivered to you, but they come from the Civil Rights Division.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, no; the top one, let me just read it to you here
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Can we recess for lunch?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. TO my knowledge, never in the history of the Justice Department, whether it was under Robert F. Kennedy or under Edwin Meese, have they given up internal memoranda. Second, this is not Brad Reynolds who is up for confirmation. This is not Chuck Cooper. This is a man who served 15 years on the U.S. Supreme Court. You are asking for memoranda from, basically, 3 or 4 years before he became a member of the Supreme Court from the Office of Legal Counsel.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Orrin, let me ask you a question.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, wait. Let me just make one other point.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I am sorry.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I understand why anybody 289
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Utah has the floor.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I can understand why any Democrat would love to go through all the materials of the Justice Department pertaining to any Republican administration. I would like to do it pertaining to any Democratic administration. And I might even enjoy the Republican administration. The fact of the matter is, as Senator Thurmond has stated, it is very tough for an Attorney General to get honest, candid comments, from internal people within the Justice Department if they know that everything they state is going to be subject to review by Congress in a partisan battle over somebody's nomination. You are asking for things that you really do not have a right to.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Orrin
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Metzenbaum, I believe, wanted to speak.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Excuse me.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NO. I am fine.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. What I do not understand here is that there seem to be two issues that the Senator from Utah raises—one is the legitimacy of an arm of the Government to deny another arm of the Government memoranda sought for; the second is whether or not it is legitimate to inquire as to what a nominee for Chief Justice wrote 25 years ago. There are two separate issues. Let us leave the latter issue aside. The argumentation given by the Justice Department for not making available these memoranda says nothing about Justice Rehnquist; it does not speak to that question. It speaks to the legitimacy of this body having access to, as a matter of principle, documents. If we here today conclude that this body does not have the right to have access to those documents unless executive privilege is claimed, we have set a precedent. With all due respect, Mr. Justice, I do not care about you in this; I care about the precedent. The fact is that we either are going to have a precedent set where they in fact abide by the law and say executive privilege, or they should come forward, like we always have in the past, with an agreement whereby we negotiate in good faith the access to and what documents they are given access to. But here there is a blanket assertion made, for the first time in this administration, a blanket assertion, and in conflict with what the President says, that everything is open. And just for the record, the memorandum I am holding here, for example, is a memorandum from Theodore Olsen to Paul McGrath, Revised Draft of Summary Judgment Motion in United States versus House of Representatives, U.S. Department of Justice, Office of Legal Counsel, dated 7 January, 1983. Now, it is on a different matter. It was on the Burford fight. But it did not require subpoena. That is how we used to do it. We used to do it that way. And I do not know why, all of a sudden, we are changing. It seems to me the request the Senator from Massachusetts made is in fact a reasonable one. And it has always been-—
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN [continuing]. If I could finish, Mr. Chairman—it has always been done on a confidential basis. That is how we have 290 done it before. That is how this committee has done it, and I do not know why it has changed.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, isn't it a fact that those documents were not provided to the Congress, but they were provided from one Government agency to another?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Pardon me?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Weren't those documents provided from one Government agency to another, and not to the Congress?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is correct.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO. They were provided to the Congress.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO. They come from another Government agency.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I ask the able Counsel to tell you what you have in your hand there—and maybe I am mistaken.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU are. Mr. SHORT. Senator, it is my understanding these documents were provided to a Government agency and not to a committee of Congress. Senator HATCH. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Hatch.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will come to order. The matter that we were discussing before lunch has been referred to the Justice Department for consideration. In the meantime, we will go ahead with the hearing. The distinguished Senator from Ohio is recognized.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Justice, I indicated this morning that one of my major concerns has become the issue of your candor, your forthrightness, and I want to go back for a moment to one question about this entire memo in the Justice Jackson matter. In the memo, just above your initials, you said, "I think Plessy against Ferguson was right and should be reaffirmed." That is very straight language. Your fellow clerk at the time, Donald Cronson, said, "Unquestionably, in our luncheon meetings with the clerks, he"—meaning you—"did defend the view that Plessy was right." So, we now have you saying that in a memo, and we have Don Cronson saying that that is the position you took. And you certainly had a right to take any position you wanted to take. Then, that became an issue in 1971, and so you wrote a letter to Senator Eastland. And at that time you said: 296 I am fortified in this conclusion because the bold, simplistic conclusion that Plessy against Ferguson was right and should be reaffirmed is not an accurate statement of my own views at the time. Now, we have your statement in the memo. We have Cronson saying that is the position you were taking. We then have the letter from you to the committee in 1971 saying that is not an accurate statement of my own views at the time. So, we have a total reversal at that point. Then, we have Senator Biden inquiring of you concerning the same issue. And you say at that point, "I do not think I reached a conclusion. Law clerks do not have to vote." I really do not know that I care exactly what your position was, but I find that you thought that Plessy against Ferguson was right; you indicate in the letter then that that was not your view; and then you say you did not reach a conclusion. Law clerks do not have to vote. Many have indicated concern about some of your decisions. I am not addressing myself to that issue. I am saying I do not understand Justice Rehnquist. He is three different places: He is for, he is against, and he does not have a position; law clerks do not have to vote. Would you explain for me that which appears on its face to be totally irreconcilable and a total divergence of opinion, three different opinions, actually, on the same question.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think in answer to Senator Biden's question yesterday as to reconstructing what my view at that time would have been in 1952,1 said the reasons I thought the thing had arguments on both sides at that time. I think the reconstructing again on the basis of this memo, I would suspect that a logical interpretation in the last paragraph is I perhaps imagined this was the way Justices spoke in conference. Insofar as the statements about, you know, arguing that Plessy against Ferguson was right at the time, law clerks, I do not doubt that is correct. I think there is also an interview with Mr. Cronson in 1971 indicating that I had told him that that was not a correct statement.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In Wallace v. Jaffrey, you dissented from the decision of the Court to strike down the Alabama State statute regarding prayer in schools. Now, what concerns me is that you took the most extreme view of any member of the Court. I am not addressing myself to the decision of the Court. That is yesterday's news. You said: The Framers intended the establishment clause to prohibit the designation of any church as a national one. The clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over another. Nothing in the establishment clause requires government to be strictly neutral between religion and irreligion. In other words, so long as the Government does not promote a particular religion, the Government can then promote religion. Is that your view?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the opinion speaks for itself, Senator. It is all written out. And I would also want to add that that case, as I recall, was not an Alabama statute requiring prayer in school. It was a statute allowing a moment of silence. 297
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. All right. That is fine. But the question is, your view is that the Government can promote religion as long as it does not promote a particular religion. I am not asking you about the Court decision. I am just asking about your view.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think that is a completely accurate summary of Wallace against Jaffrey. I think that the statement you read, that the 1st amendment, the religion clause, does not require the Government to be neutral between religion and irreligion I think is a correct statement.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me ask you a general question. Put yourself in the position of a member of a religious minority today. Maybe you are Jewish, maybe you are a Buddhist, maybe you are an agnostic. How would you feel if Government officials came to your school or office and said that all persons should go to church. How would you feel as an individual, not as Justice? In other words, if you were an atheist, an agnostic, or if you attended a mosque or synagogue rather than a church and they told you you should go to church, how would you feel about that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would be outraged.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. SO would I. I can think of a lot of Government programs that, to me, would promote religion. What if the Government requires us to join some religion, any religion, the religion of our choice in order to be eligible for Government office? That would not be the promotion of a particular religion, would it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Your hypothesis is that the Government requires that you be a member of some religion before you can run for public office.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That is right.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would not think that was the promotion of a particular religion, no.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And that probably would be in accordance with the Constitution?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not in my view.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Not in your view.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, let us see if I am clear. You said you would not think that would be the promotion of a particular religion; therefore, following your position in the Wallace v. Jaffrey case, that would be permissible as long as Government does not promote a particular religion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe that, in my opinion, Wallace against Jaffrey got into the kind of hypotheticals that you are suggesting now, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I agree with that, but what concerns me is your words in that case. As its history abundantly shows, however, nothing in the establishment clause requires Government to be strictly neutral between religion and irreligion, nor does that clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means. That is the reason for my hypothetical questions. I can see that the hypothetical questions I have are all premised on the fact that you are not promoting a particular religion; you are just promoting religion as against irreligion. 298 Therefore, I am asking you whether or not you would have any difficulty with the Government requiring a person to join some religion in order to be eligible for office.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would have a great deal of difficulty with it, Senator.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, I believe your time is up. The distinguished Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Justice Rehnquist, the media reports have at times revealed what they think may be a correct routine of a person's life or lifestyle or what he may do on a daily basis. But involved here are the news reports that you usually will go to work in the morning, sometimes, as I recall the media has indicated, at 9, and that you would work until about 2:30 or 3. I do not remember exactly. And then you would swim, exercise during the day. Is that a fair statement? You write you worked hard during that period of time, but is that a fair summary of your daily work routine?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is accurate as far as it goes, but it leaves a misleading impression that one can do the job of an Associate Justice in 6 hours a day. That cannot be done, and the practice I developed was because I did find it very good for me physically to get a swim in in the afternoon, was to work at home in the evening, as all of the Justices of our Court, of course, did that before they moved into the new Court building in 1935. And I put in a good number of hours at home. There is a—well, I should not be explaining to you what the life of a Chief Justice is since you have been one and I have not. But as you know, part of the work of any appellate judge is working with law clerks, working with one's colleagues, sitting on the bench hearing arguments, going to conferences. But there is a fair amount of the work that you have to do by yourself. The staffers cannot help you, the law clerks cannot help you. You have to read briefs. You have to read circulating drafts of opinions. You have to read either petitions for certiorari or memos summarizing. And that is work that not only can be just as well done at home, I have found, but better done at home when you are not interrupted the way you are in your office.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. In your routine of taking daily exercise—of course, we understand you have had a back operation and you feel it is beneficial and helpful to you to spend a portion of your day taking exercise.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I do.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. What I suppose I am getting to is that the role of Chief Justice may entail more work, more requirements than an Associate Justice, such as maybe seeing more people, the relationship of administrative building superintendent or the sergeant-atarms or whoever it may be, the director of the Federal Judicial Center—all of these things—of additional duties that are required. Is your routine such that, in having followed it for a period of time, so firm that it would not be flexible for you to change in such a manner? I think what I am getting at is whether the routine that you have developed for your daily life is such that it would interfere with your role as a Chief Justice? 299
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe so, Senator. I am, of course, aware of the fact that the Associate Justice's role is pretty well deciding the business that comes before the Court. The Chief Justice has a good deal more extensive responsibilities that would involve seeing more people, just as you point out, working with groups completely outside the Court. And whereas I certainly do not propose to give up my fairly regular swimming, which I think is essential to feeling fit, obviously I am going to have to tailor and remodel a lot of the way I handle the job of Associate Justice and simply spend more time in the building. There is no question.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, now, I think Senator Simon has asked you basically about your health. You had a back operation and had a disc removed, as I understand it, probably about 1969 or 1970, and you probably have had some problems at times with it. I never have known many disc operations that were completely successful. But, basically, do you feel that you are able to do the task of a Chief Justice and that your health would permit you to perform the role of the Chief Justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I do, Senator. I certainly would not have accepted the nomination had I thought otherwise.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right, sir. You have been the Justice assigned to the ninth circuit, I believe, which is the Western. And there are many of us in the Congress that are concerned about whether or not the ninth circuit has become too big, too cumbersome. I believe, what is it now, 28 judges in that circuit, and they have attempted, instead of having en bane of all of those judges, a procedure by which it is divided into a group that does the function of an en bane proceedings. Now, they are proud of that. Judge Browning and Judge Clifford Wallace, and some of them out there tell me that this is working well. They are always trying to encourage me to get out and view it, which I would like to do sometime but it always comes in the middle of the week when we have duties here. But do you feel, from the viewpoint of your observations, that improvements can be made to the situation pertaining to the overall operation of the ninth circuit?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I would say that in my mind the jury is out on whether a court that big will ever work. I think no one has labored more indefatigably to see that it did than Chief Judge Browning, and I think he is a real student of judicial administration, and Judge Wallace along with him, as you mentioned. I do not know how you could get a better production out of that situation than they have done. Whether or not it ultimately will work, I certainly do not profess to know. I think the judges of the ninth circuit and people attending the ninth circuit conference say they believe it is working. And since we have so many problems with court of appeals, conflicts of circuits and that sort of thing, I think one of Judge Browning's arguments in favor of keeping the ninth circuit the way it is, as I understand it, is that if you split the circuit, that is just one more court that is going to furnish conflicts that need to be resolved, either by the Supreme Court or the National Court of Appeals. 300 So, I would definitely feel that—and I daresay the judges of the ninth circuit feel that way—certainly it should be observed; but if they can do it successfully, more power to them.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Let me ask you this: Do you remember when you started wearing glasses?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I started wearing glasses off and on, you know, sometime in probably—I think maybe grade school, perhaps high school.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Did you wear glasses, say, from after you finished law school all of the time or just on occasion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I switched, as I recall, from wearing glasses part of the time to all the time right after I moved to Phoenix in 1953, more or less out of pride. I had not wanted to wear glasses because I obviously thought I looked better without them. But then I moved to a new city where my wife and I knew only one other person at the time we moved there, and the idea if you are going to be successful and get around and meet people. And I realized I was meeting people and then snubbing them on the streets the next day. [Laughter.] That is when I started wearing glasses all the time.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. TO tell you the truth, I cannot remember when I started wearing them. But anyway, I think that helps clear up a point. Let me ask you this: Have you in your judicial writings ever written an opinion that involved laches?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I recall one case, and I am not sure you would describe it as laches. It was a case called United States against Nevada that was about 3 or 4 years ago. And it was a question of the Government being prevented from opening up a decree that had been entered in a district court proceeding out in Nevada, oh, in the 1940's, I think. I do not know whether, thinking back, I cannot remember whether it turned on laches or not, but that is as close as anything I remember.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Give me just a second, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. DO you want me to pass on?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO; I would like to bring up a couple of things here. I notice that Plessy v. Ferguson keeps coming up. I thought you more than disposed of that yesterday. And I personally am somewhat reluctant to bring up matters that have occurred 34 or 35 years ago as has been done here. Nonetheless, we continue to hear about these ancient events as though they are important today. I would like to ask a few questions. In 1952, your coclerk, Mr. Cronson, now an international lawyer, was the only other person with firsthand knowledge of the genesis of the memo you wrote on the segregation cases. And Mr. Cronson wrote another memo on the same case, is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. He wrote another memo on the same case, I know from now reviewing the Jackson memos. I cannot say whether it was earlier or later. 301
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. IS it not common for Supreme Court Justices to seek varying views from their law clerks?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think Justice Jackson did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And was it not common for him to ask one clerk to write one particular side and another clerk to write another particular side?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It certainly happened in some cases, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And this was one of the cases where it happened?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, I see now that it was. I do not know that I would have remembered it just from reading my memo by itself.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, according to your coclerk, Mr. Cronson, however, the views in the memorandum about Plessy v. Fefguson were not your own views, is that right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. He said that. I believe that he is correct in saying that for the reasons that I said in my 1971 letter to Senator Eastland. His statement that it embodied a lot of his views, I cannot recall at this time whether it did or not.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. OK. He said in an article in 1971, and as I understand it, he has reaffirmed recently to reporters that "Both of us personally thought Plessy was wrong." I understand you cannot speak for your coclerk, but is that consistent with your understanding?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is certainly consistent with my recollection.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NOW, I hesitate to ask again, but this piece of history seems to be important to some of my colleagues who love the past. Was Plessy a correct interpretation of the 14th amendment, in your opinion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I did not think it was, no.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU did not think it was then, and I take it you do not think it is today?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, certainly not.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right. It is significant that the only other person with a firsthand knowledge about this segregation memorandum agrees with your account that it was drafted at Justice Jackson's request to reflect a particular point of view. That was Mr. Cronson. It is not a reflection of your own views according to the only other person who had firsthand knowledge or recollection of the memorandum. In fact, your coclerk has stated that he collaborated with you on the drafting of the memo and that it may have been more a product of his own than of your own. That answers that question. We have heard allusions that you may not be as sensitive to women's rights as some members of this committee think you should be. We all think you should be sensitive to women's rights, and you have said that you are. It seems to me that you were the author of the last term's leading women's rights case. And that is the case of Meritor Savings Bank. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it is, Senator. 302
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In that case, you led the Court in stating that an employer may be liable for sex harassment in the workplace. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU also voted with the majority in the case of Roberts v. Jaycees. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In that case, it was decided that the States may prohibit discrimination by a club. That is the Jaycees in that particular case. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU were in the majority on that case. In fact, I have for the record a lengthy list of cases where you have voted for women and minorities. I have compiled over 27 cases. That is true, is it not? There are many cases where you have voted for women and minorities.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. There certainly are. I cannot vouch for the exact number.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me also put a memorandum into the record of the 34 cases where Mr. Justice Rehnquist, as stated, has backed, and restated the Brown decision as well.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. YOU are not asking that all the opinions be put in, are you?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. NO; just a listing of the cases.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered. [Information follows:]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. With regard to Bob Jones University, there are those who argue that the University should not have lost its 501(c)(3) tax exemption because it was a university operated pursuant to a sincerely held religious belief. That is a constitutional argument that cannot be ignored in that type of a case. But that was not the reason you decided that case. And you were the sole dissenter in that case. As I understand it, the larger context of the issue involved the separation of powers doctrine. And regardless of how much you desired to see such schools deprived of their tax exemptions one way or the other you believed that Congress was the only branch of Government empowered to do so and that the Court should not unilaterally make that decision. Am I correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it was interpreting an act of Congress, and the question was whether or not the exemption was to be denied. And I would add in supplementing what you have already said that, in my opinion in that case, I specifically rejected the constitutional argument advanced by Bob Jones.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU are saying the section 1 religious freedom argument?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. What you are saying is that you argued a legitimate position that if Congress wanted to take away the exemption, Congress would have had the power to do so. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, no question of that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I presume that if all 535 Members of Congress who are always saying that they are for civil rights, had wanted to revoke the 501(c)(3) tax exemption that the Bob Jones University had and was operating^ pursuant to, and had the guts to do it, they could have done it by statute. And Bob Jones University took that to court. Had it arrived up to the level of the Supreme Court, you would have voted against Bob Jones and sustained the right of the Congress to have done so?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that is clear from what I wrote at that time.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is a fairly principled constitutional position, one which you should be given credit for rather than condemned for on the basis of lacking sensitivity to civil rights. That that must be brought out. It is one thing to lift excerpts from some of these cases. It is another thing to talk about what they really mean and how important some of these constitutional issues really are. In particular, the separation of powers doctrine of the Constitution, and the right of Congress to do certain things or not to do certain things which you have specific beliefs about. Mr. Chairman, I reserve the balance of my time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. If you will take the chair.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH [presiding]. Senator Biden, we will turn to you at this time.
Senator Joe Biden (DE)
Senator
(D)
Senator Biden. Senator BIDEN. We have a vote on, but I will start if that is OK. But I am going to have to leave. As a matter of fact, rather than do 307 that, why do I not go and vote and come back, because I have a series of questions on the 14th amendment?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Why don't you stay because Senator Thurmond has gone over to vote. I will stay as long as I can.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I am going to go vote because what is going to happen is I am going to start and get partway into it, because it relates to the Judge's philosophy, it is going to get lost in the transition. And so I will come back.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Senator Metzenbaum.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. I think we all should go. But I will be back in 5 minutes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Let me take a little bit more time here until Senator Thurmond gets back. You have been asked a number of questions that perhaps should be clarified. We heard charges in the last day or so that you might be too extreme. One example raised was your dissent in the Jaffrey v. Wallace silent prayer case. It might put this case in context to realize that Justice White and Mr. Justice Burger also dissented in that case.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, they did.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. It was not just yourself. More importantly, 12 members of this committee have dissented in the same case because my constitutional amendment proposal would reverse Jaffrey and permit silent prayer reflection or reflections. It was approved by this committee on a 12 to 6 vote on October 3, 1985. Are you embarrassed to find yourself in agreement with two thirds of this Judiciary Committee?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not at all, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Lest some think that the committee may have taken its action for a different reason than the Justice Rehnquist, I would like to read from the committee report. It makes a fairly decent case as to why your position is not extreme. Let me give you some illustrations. One of the excerpts says, "Perhaps most important to the first Congress, it represented a clear prohibition against any single national religion. At the same time, the language left latitude for Government and generally to religion. Now, if you go on we had all kinds of testimony before the Court as to how important the silent prayer experience may be. And what the report says is, "This contest with the silent prayer experience in which every child could be accommodated every day in the recitation of a personally meaningful prayer." Professor Malbin said, "Silent prayer is an important part of almost every religion." You could .go on. The report itself, which is filed with the Senate with regard to Senate Joint Resolution 2, is, of course, very important. And it says: In the view of the proponents of the Senate Joint Resolution 2, the present amendment is necessary to restore the historic meaning of the first amendment sharply altered by the Court's decision in Jaffrey. The laws of at least 23 States were apparently overturned by the Court's decision in this case. Historically, the establishment clause had been understood primarily to prohibit the State from establishing any official church or from preferring any particular church or denomination as a matter of general policy. 308 This very committee, with a very distinct majority vote, basically supported your position in the Jaffrey case. I would also point out that many of the same views found in your dissent in the Jaffrey case command now a majority of the Supreme Court. Take, for instance, the Lynch v. Donnelley case on the display of the creche; in the Mueller v. Allen case on tuition tax credits; in the Marsh case on chaplains in legislature. Those all follow your reasoning.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I wrote Mueller against Allen.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is right. In other words, your reasoning in that case for which you have been called extreme is now the dominant reasoning on the Court except in the matter of silent prayer.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Of course, Wallace against Jaffrey came after Mueller against Allen, but certainly there are very definitely common threads in the reasoning of them.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I do not mean to suggest even that the reasoning was identical, but I am saying that certainly these cases accommodated our religious heritage and our religious traditions without finding a conflict with the first amendment. I just wanted to bring that out. And in each of these cases, the Lynch case, the Mueller case, the Marsh case, you were in the majority. And you wrote the Mueller case. Is it the view of the majority of the Court that the First Amendment does not forbid many of the Nation's long-standing religious traditions?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That the first amendment does not forbid any of the Nation's long-standing religious traditions?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Similar to the creche perhaps?
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would not want to speak for any of my colleagues on that, Senator. These cases, although in theory they are very logical and analytical, often tend to turn on the facts very much. Certainly if something were identical to the creche or very close to it, I would think we would get the same five to four division that we did in that case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. I will conclude by saying that that is also the view of at least 12 out of the 18 members of this committee. And what you have been labeled as extreme for is something that a majority of this committee supports.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. We are all extremists together then. [Laughter.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is a very good point. At least in the eyes of the minority of six, or at least maybe the minority of two or three of the committee. I will have to go vote. We will recess until Senator Thurmond gets back and then we will reconvene the hearing. [Recess.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will come to order. 309 We have now completed round three. We are going to round four. The senior Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. YOU think you can go 15 rounds, Mr. Chairman?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I would hope not.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Justice, 200 years ago Thomas Jefferson praised the idea of a wall between church and state. You expressed reverence for the first amendment, quote, which declared that their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof, thus building a wall of separation between church and state, end of quote. If you had lived at that time, would you and Thomas Jefferson have been in disagreement?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is hard to put oneself back in that time, Senator, but I am not sure how I would have thought about that. It is a noble sentiment, nobly expressed. Having seen the cases that have come before us recently where, for instance, there have been efforts by student governments to recognize the fact that parochial schools do a great deal of the education of people and take burdens off public schools, in an effort to somehow recompense that by allowing, for example, tuition credits to parents whose children attend parochial schools, and I am not sure that I—with the benefit of hindsight—I would completely agree that there should be a wall of separation between church and state of the kind that would prohibit that sort of aid.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Justice Black said that one problem with governmental involvement with religion was that the involvement tended to coerce religious minorities to conform. Do you see that as a problem?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly any effort to coerce religious minorities to conform, I think, is a definite problem.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Let me turn to a different subject having to do with race discrimination. One of the most troubling areas of your record is in your position on laws against race discrimination. There appears to be a clear pattern in your statements and positions on this issue. What is troubling, Mr. Justice, is that one can identify this pattern from the time you were a clerk for Justice Jackson until you decided the affirmative action cases a few weeks ago. The pattern seems to be, if you are a member of a minority fighting discrimination, William Rehnquist is likely to be against you. Now there are some exceptions, I know. But I will not go back into the memo having to do with Plessy against Ferguson. But there is a statement in one of your memos as a clerk that I would like to address myself to, skipping over the Jackson memo. Said you: It is about time the Court faced the fact that the white people in the South do not like the colored people. The Constitution restrains them from effecting this dislike through State action. But it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. Are those still your views? 310
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator Metzenbaum, if you look more thoroughly at the memo that you are talking about, which I believe was in one of my memos in Terry against Adams, it starts out with the statement—and it is signed by me, WHR; it is to Justice Jackson—if you are going to dissent, I should think you might combine the ideas which you expressed last week with an attack on the reasoning of the two quote majority opinions, close quote. And then No. 1 below that is Justice Black, it says Black. No. 2 is FF, which certainly stood for Felix Frankfurter, and then, No. 3, your ideas, dash, dash, the Constitution does not prevent the majority from banding together, nor does it taint success in the effort. It is about time the Court faced the fact So that I think the memo read in context gives a somewhat different impression. Though I certainly shared the view at that time that in order for something to be unconstitutional it had to involve State action; and I continue to share that view, and I think it remains the law.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And so that would continue to be your view?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. On the law of the matter, yes.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Would you like that to be included in the record?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Unless you want it, Mr. Chairman, or Senator Metzenbaum does, I do not have any particular need for it.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, we will include it in the record.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, then, I did not want to clutter the record. But if we are to include that memo, I guess we had better include the memo on the Jackson case as well. I think there will be other memos also.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, the Jackson memo will be included.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. There is another statement in one of your clerk memos, this is in connection with the lawsuit challenging the Jaybird Democratic Club in Texas. That club did not admit blacks. For all practical purposes, it chose the Democratic nominees for the county. On its face, that sounds to me like blatant discrimination and blatant political discrimination, as a matter of fact. You, as a clerk, said: I take a dim view of this pathological search for discrimination a la Walter White, Black, Douglas, Rodell, et cetera. What did you mean by pathological search for discrimination?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it would have been much more accurate to say, unlawful discrimination. Because there was obviously blatant discrimination in that case, just as you put it. I think what I meant was that a desire which overbore every other consideration of law to find State action where there might have been very good reasons for thinking it was a purely private act.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. But you took a dim view of that search for discrimination, as if to say that you resent the fact that people are always looking for discrimination and why cannot people get off this kick. 311
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The memo certainly is subject to being fairly interpreted that way. But I think a more accurate statement of my views would be that the idea that the overriding element was the effort to bring everything within the rubric of State action, even though perhaps it could not justifiably be done.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. IS it not the fact that at that time custom and segregation were pretty much the same, that it was the custom to segregate—that you did not have to have a pathological search for discrimination in order to find it because it was such a reality of life?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it probably was.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman—bad news, Mr. Chairman, another rollcall. Mr. Chairman, I at this point will introduce into the record a copy of that memo as well.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection. [The memos follow:] law school. But the pattern continues. Some years later the record shows you strongly opposed an antidiscrimination ordinance in Phoenix. In a letter to the editor of the Arizona Republic you wrote, and I quote: The ordinance summarily does away with a historic right of a drugstore, lunch counter, or theater to choose his own customers. It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual freedom for a purpose such as this. If I read that correctly, you were putting property rights, the right of a drugstore owner or lunch counter owner, to choose its own customers over the right of those customers to be treated equally. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. At that time I was, Senator; yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And have you reversed your views on that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I have.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And have there been any cases in which you have reversed your position on that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, there have been cases in which I certainly voted to enforce antidiscrimination ordinances, statutes passed by Congress. There was a case, I think Tillman v. Wheatenhaven, that came up shortly after I went on the Court, where I think the opinion of the Court was unanimous, saying that Congress had prohibited discrimination—there was an exception for private clubs, and saying that particular outfit was not a private club. And I joined what I think was an unanimous opinion.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Your time is up, sir. The distinguished Senator from Alabama. And incidentally, have you voted on this vote yet?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NO, but I only have one or two further questions. And I think I can wind it up in a couple of minutes. Mr. Justice Rehnquist, on the questionnaire for judicial nominees that you filled out, the oath that is taken was before a Notary Public Edward H. Faircloth. You might want to look at that, a copy of that. It has Faircloth's name signed to where yours was, scratched through, and then your signature above it, and then of course his, under the notary. Would you give us an explanation of what occurred pertaining to that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Either he or I, and it may well have been me, had picked the wrong space for the name to be printed. And I think actually my name should have been printed or typed in the first—or perhaps below it. But at any rate, he signed where I should have signed. He also signed as a notary. And then we crossed out his name and put my signature in above it.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, in the normal course of events, when one gives an oath to a Notary Public or someone else, the affiant usually signs and then the Notary Public. But I suppose you had already given ycur oath to it, and this was just perfunctory as to the signature afterward. 317
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I thought it was a matter of form, Senator. Because, as you say, I had just made the oath.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. All right. Now, there have been suggestions, in order to try to present the needs of the judiciary, that the Chief Justice be called upon to appear before a joint session of Congress and make a state of the judiciary speech. This has been discussed at various times in proposed legislation here, or as a proposed invitation. I just wonder if you have any thoughts as to whether this would be helpful to the judiciary, or if there are any problems that you might see with it. It would be similar to the President's State of the Nation speech that, either yearly or every 2 years, the Chief Justice might be requested to come before a joint session of Congress and speak on the state of the judiciary.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If Congress would welcome such an address, I should think any Chief Justice, including me, if I am confirmed, would be delighted to have the opportunity to tell Congress some of the problems, some of the current situations, in the judiciary. It is a very significant occasion when a joint session of Congress is convened. And there might be a feeling, I suppose, that only a President or something like that should get that degree of dignity.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Well, a number of States have done this. It has proven to be effective. It is an effective way for a coequal branch of Government to present its views and its needs to the other branches of Government, since it could be that the Cabinet could attend as well as the Members of Congress. That is all the questions I have at this time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. About the same time that you wrote that letter, you spoke out against efforts to integrate the schools in Phoenix. You wrote: I think many would feel that we are no more dedicated to an integrated than we are to a segregated society. Now that is truly a shocking statement. And I think here we are not dealing with what the Constitution says or does not say. We are talking about Justice Rehnquist as an individual, the one who is writing letters to the editor. If you were a member of a minority, and you knew these statements by the nominee for Chief Justice of the Supreme Court, frankly, how would you feel about your chances of getting equal justice from the individual who had expressed such views as a private citizen?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If I had heard only what you said, Senator, I would have the gravest doubt. But I think if, again, there is a full sentence there which qualifies it. And it was in a context not of an effort to integrate the schools as such, because the schools in Phoenix have never been segregated by law except, I believe, for a high school system. Do you have before you the full sentence, because I am not sure that I do?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, we will get it. I have a quote from it here, but I will get it in just a minute and come back to it. 318 When you went to the Supreme Court in 1971, I think the minorities in this country had a perfectly understandable fear that you were an ideolog who was not going to protect their rights. You testified in your 1971 hearings that you had changed your views about civil rights laws. You said: I think the ordinance worked very well in Phoenix. It was readily accepted, and I think I have come to realize since, more than I did at the time, the strong concern that minorities have for the recognition of these rights. I would not feel the same way today as I did about it then. But in view of your record in the Court—and I know there are some cases having to do with State laws against discrimination, as distinguished from the rights of individuals under the Constitution—I know that in some of those you have ruled in favor of the minority—but how do you feel, or do you believe that minorities can feel more comfortable about your record on the Court in the area of race discrimination? Because as you well know, a number of them are coming up here to testify that they are not comfortable, that they are concerned, and that they oppose—and they have said publicly that they oppose the nomination.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If I were being elevated to the Court for the first time, and yet somehow had the foresight that enabled me to see how I would vote for the next 15 years, I would say, I think, if I were a member of a minority, and not being a member of any minority it is very difficult for me to put myself in that position, but this person reads the Constitutional clauses upon which many of the lawsuits which would benefit minorities are based, more narrowly than some of the other people. I wish someone with a more expansive idea of the equal protection clause would be appointed. But since I am already on the Court, and am simply being promoted to Chief Justice as opposed to Associate Justice, I would not think there is any reason to think that the way I see things for the next however many years it is I am permitted to serve if confirmed, would change from the way I have been doing it for the last 15 years.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will have to stop now. We just have about 3V2 minutes. We have 43 witnesses, and we hope to get to you sometime today or tonight. We will take a recess of 10 minutes. [Brief recess.] The CHAIRMAN. The committee will come to order. The distinguished Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Mr. Justice Rehnquist, when I last had an opportunity to question you, the subject discussed was the authority of Congress to, in effect, undercut Marbury v. Madison, by asserting its power to take away the jurisdiction of the Supreme Court of the United States in a particular matter. To illustrate, I specified a congressional effort to assert this power with respect to first amendment freedoms of speech, press, and assembly. You stated that you thought, without making a final decision on it, that the Court's jurisdiction could not be undercut on constitutional issues. 319 Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe it is, Senator.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Justice Rehnquist, may I assume that your view would be that Congress would lack the authority to deprive the Court of jurisdiction if it involved a genuine constitutional issue?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I was reluctantly willing to answer your questions about the first amendment questions. I am a good deal more reluctant to venture an answer that would be any sort of a broader classification. In effect, I must say I am very much inclined to think that I best ought not.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, what is the difference between Congress' seeking to undercut the jurisdiction of the Supreme Court of the United States with regard to the privilege against selfincrimination, and the right to counsel?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, the difficulty with the question and the difficulty with my answering it, Senator, is that it is a totally abstract question as you propose it and as I would have to answer it. We do not know what context it comes up in. I have not had a chance to read whatever the framers might have said in connection with the article III, section 2, with such exceptions that Congress may provide. It just gets us into an area that may come before the Court and that frankly is the kind that previous nominees, I think, have not answered.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I thought that we had crossed that bridge, earlier today, with respect to your comments on the Whittaker appointment, in 1959, where you said, that you felt it was appropriate for the Senate to inquire and for a Supreme Court nominee to respond to questions on the meaning of due process of law and equal protection of the law. Do you disagree with those views?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I said in my—I do not know whether I said in 19—what was it, 59—that it was appropriate for the nominee to respond. I know I said it was appropriate for Congress to inquire. But I was asked a similar question in my 1971 hearing, and I think I made the statement that I had no doubt at all that it was appropriate for Congress to inquire and to find out in every way, but that I had no idea of the extraordinary difficulties that that approach put the nominee in. If I were coming before you as someone from private life without any record of participating and deciding cases, perhaps that is the only way you can get at it. But I have 15 years of decisions that should give an adequate indication, I would think, of my judicial philosophy to the extent I have one.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, Mr. Justice Rehnquist, with all due respect, this issue has not been before the Court so I do not know from any statement which you have made where you stand on it. When you say that you are trying to make a distinction as to what you said in 1959 are you saying that, at that time, there was a difference in what a Senator had a right to ask contrasted with what a nominee had a responsibility to answer? 320
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I really did not go into in 1959 what the nominee's responsibility was. And I really had no idea what the problems confronting a nominee were then.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I must disagree with you, Mr. Justice Rehnquist. Now, you may have a different view today, but what you said in 1959 was that the Senate did not do an adequate job in finding out where Justice Whittaker stood; that all they found out was where the money came from for his education, where he was born, where he practiced law. They did not know where he stood on equal protection of the law or due process of the law. And those were appropriate questions to be asked. Now, I do not think you can realistically or reasonably say that there is a difference between what is reasonable to answer as opposed to what is reasonable to ask.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think I can, Senator. The questions can be directed to sources and places other than the nominee. And I think Justice Frankfurter took that position when he came before the committee, that his philosophy was a very legitimate inquiry, but he had written lots of things, and he was not going to answer any questions about it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, we may have a difference of opinion as to what is appropriate to ask and what is appropriate to answer. I have to say to you candidly that, speaking for myself, the issue of the authority of the Supreme Court is rockbed in my own thinking. When you talk about Marbury v. Madison and the basic authority of the Supreme Court of the United States as being the final arbiter, if a nominee does not believe in that, then I do not think a nominee believes in the very basic proposition of the Constitution. It is on the same footing, as I see it, as to whether the Congress can undercut Marbury v. Madison and the authority of the Supreme Court of the United States by taking away jurisdiction. And that is why I have pressed it as hard as I have. You have to decide what you will respond to, and I have to decide for myself what that means to my vote in this committee and on the Senate floor.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I am sure it goes without saying that I respect your position. I think I understand your problem, and I hope that you understand mine too, that this is, as you say, there have been bills pending. I do not know what the contents of the bills were, but if we get away from the very rock bottom thing that we were talking about earlier to a different kind of bill, I simply think that I would be expressing an opinion on something that might come before the Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there is a great deal of authority, Mr. Justice Rehnquist, on Supreme Court Justices having taken positions on matters which come before the Court. There is authority that Justice Black, when he was a Senator, having inquired on an issue which he decided on the Supreme Court. Professor Frankfurter wrote extensively on matters which came before the Court. In your published opinion in Laird v. Tatum, in 1972 which I know you are familiar with, when the request had been made for you to step aside in the case, you made quite a number of references to situations where Justices had expressed themselves on matters which were very close to the issues which came before the Court, 321 and that did not impede the ability of the Justice to make a decision on those matters.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. But, Senator, I believe in those situations, the expressions had taken place when the people were not Justices and had not been nominated. They were then in some other function. And I think that is quite a difference.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. But the issue is very close, if what you are saying is that you do not want to answer questions in this proceeding which may undercut your ability to sit on a case which may come before the Court.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, with all respect, I think I disagree with you. I think it would be one thing for me to get up in the Senate, if I were a Senator, and to say I think the proposed Court stripping bill is wholly unconstitutional, and then later vote on that case if I had been appointed to the Supreme Court in the meantime. But I do not think that is the same situation if someone who is a sitting Justice at the time the question is asked is nominated to be Chief Justice and asked please express your opinion on this case, that concedingly might come before you.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I disagree with you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator's time is up.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I will come back with having disagreed with you, Mr. Justice Rehnquist.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The Senator from Massachusetts.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you, Mr. Chairman. I just have really one area at this time that I would like to refocus on, if I could, Mr. Justice. And it is an area that you have been inquired of, I think, during the course of the first and perhaps the second round, but I have not had the chance to do so. And there are just some aspects of the memoranda that I would like to see if we cannot clarify. I was on, as you remember, the Judiciary Committee during your previous hearings. Toward the closing of those hearings, there were certain charges that were made with regard to the voter harassment. And you responded to some of the questions and then, after the conclusion of the hearings, we discovered the Brown memorandum on school segregation. And on the floor of the Senate at that time, Senator Scott read into the record the response that Mr. Cronson had that would indicate that he felt that he contributed significantly to the memoranda for your initials. We have not gotten into .how much he had to do with it. It appears that that memoranda had actually been authored by you and expressed your views at that time. Cronson had indicated that he felt that the memoranda is "as much my work as it is yours." We have not had a chance to get a redefinition from Cronson, but one might gather that he felt that his coworker could have been in some trouble on this and he might have been trying to give you a hand. I think that is a reasonable conclusion. There may have been another explanation, but we are left up in the air on that particular question. Yesterday, you could read it either way—the I's in it certainly could have been yours rather than Justice Jackson's. 322 And then, in 1971, we had the response of Elsie Douglas, who had been Justice Jackson's secretary for 9 years, who said that she thought your account was "incredible on its face," and that by attributing the memoranda's prosegregation view to Justice Jackson, you had, and I quote, "smeared the reputation of a great Justice." I do not know whether you saw that statement that she made in 1971 or whether you have any response to Elsie Douglas. I understand she feels very much the same way even today. I do not know whether you want to make any response to that opinion of Elsie Douglas.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I naturally regret that she feels the way she does. I have given the committee the best explanation, the best reconstruction I can of that memo, some first in 1971 when it was 25 years old, and now in 1986 when it is 34 years old.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, I would think that this whole issue has not just faded away in the meantime. It was raised during the last confirmation. As has been pointed out, the major bedrock decision on the civil rights of our time and, as you can well imagine, it makes a rather important difference whether the "I's" referred in there were yours, or the "I's" referred in there were the Justice's. And you have maintained in your response that they were his. In your 1971 response, and yesterday, you indicated that it could be read either way. I do not know whether there is anything further that you want to add to that. Consider the language which has been quoted here in that last paragraph: I realize that it is an unpopular and unhumanitarian position for which I have been excoriated by liberal colleagues, I think Plessy v. Ferguson was right, it should be reaffirmed. In 1957, you wrote an article, "Who Writes Decisions of the Supreme Court." In it you wrote "some of the tenets of the 'liberal' point of view which commanded a sympathy of majority of the clerks I knew were extreme solicitude for the claims of Communist and other criminal defendants; expansion of Federal power at the expense of State power, great sympathy towards any government regulation for business." And the word "liberal," in this article is in quotes as the word "liberal" was in your memoranda on the school segregation cases. And the liberal clerks which you commented on in the article, I would think any reasonable person could believe were the same colleagues that you were referring to in your memoranda. It is not only my judgment of that. In the definitive work on the Brown decision, the Kluger book entitled "Simple Justice," he analyzes the issue of your memoranda exhaustively, and he concludes Taking the careers and judicial assertions of both men in their totality"—meaning Justice Jackson and yourself—"one finds a preponderance of evidence to suggest that the memoranda in question, the one that threatened to deprive William Rehnquist of his place on the Supreme Court, was an accurate statement of his own views on segregation, not those of Robert Jackson who, by contrast, was a staunch libertarian and humanist." So that sentence in the memoranda about being excoriated for segregationist views, I find impossible to really give to Justice 323 Jackson. And I am just wondering whether, in your own views, whether you have had any chance to think that whole matter through, and whether there is anything more that you can say that can help clarify exactly the purpose for that memoranda and who the "IV refer to? Do the "IV refer to you, Mr. Rehnquist?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not think they do.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. YOU maintain the "I's" refer then to Justice Jackson?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. Obviously something for him to say.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Mr. Chairman, I ask that the Rehnquist memoranda, his 1957 article, Mr. Kluger's analysis of the issue, the book "Simple Justice" be printed in the record.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. HOW long is it?
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. It is not long. I imagine his memoranda is two pages, his article is, his 1957 article is what, 1,000 words, 1,200 words?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO more than that.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. A thousand words.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Without objection, so ordered. [Information follows:]
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. I have no further questions. If there is any problem, I will be glad to read them into the record, Mr. Chairman. I have no further questions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman. Mr. Justice, I would like to go back, if I can, to the 14th amendment and not talk about necessarily specific cases at first, but try for me to understand your reasoning. As I said, it is a little like a serial, is it not? When we last left off at the ranch, you had been quoted as saying—first of all, I think Senator Hatch made a comment in his opening statement about coming storms. He was referring to—Senator Hatch was referring to the societal changes that had taken place, and the storms that the Court had found itself in, and there would be coming storms, and that obviously we do not know what those storms are going to be. We do not know what those seminal decisions are going to be that you as Chief are going to have to be part of. The best we can do is to try to learn in the words quoted by you of Cicero. We have to see, determine whether or not you see life clearly and can see life whole. And that is the purpose for my asking this, what will be a series of questions relating to the 14th amendment. I am trying to get an idea of how clearly you see life and how whole it is. And there is probably no amendment in the Constitutio 339 Senator BIDEN. SO when they say in the 14th amendment, section 1, all persons, that is—that comports with what you just said. They were obviously aiming beyond just the black code in your view?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think so.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That would be my view too. Now, let me ask you then, in your dissent in Craig v. Boren, you asked, and I quote, "Why the statute here should be treated any differently here from countless legislative classifications unrelated to sex which have been upheld." You then go on to cite cases of discrimination where the Court has upheld such classifications, such as laws and limits of power to treat eye problems by optometrists only. And I realize from the statute here in Craig, and we were just talking about the 14th amendment, which is a constitutional principle or constitutional amendment. But is there not a difference between the discrimination on the basis of not being the man than discrimination on the basis of not being an optometrist or not—do you understand what I am driving at?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I think it is actually—I think the person claiming the right in Craig against Boren was not a woman but a man. It was I think Oklahoma. I think it was perhaps when Senator Boren was the Governor, had passed a statute saying that women could, I think, buy liquor or buy beer at age 18, but men could not until they were 21. And there was a man who was 19 or 20 who said that is a denial of the equal protection of the laws, to treat men differently from women. And I think the position I took there was that, just like a legislature is going to have to distinguish between, you know, optometrists, opticians, any number of other similarly situated people in regulating that sort of a thing, a legislature ought to be able to make reasonable judgments about whether, perhaps because the men do the driving or did the driving or something like that at the time the statute was passed, there was a reason for putting down different age limits and restricting men more than women.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. If the law had been that whites could drink at age 18 but blacks not till 21, and they could be shown statistically, if it could, be shown statistically that blacks had many more accidents relating to drinking, would that have been a reasonable test that could have meant—would that have been constitutional?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, our cases are—there is disagreement among the members of the present Court on some of the standards to be applied in equal protection. I think we all agree that any classification based on race is suspect, and that only what is called a compelling State interest would justify it. And I think even if there were
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. On what grounds? How do you arrive that it is only compelling State grounds? What do you look to to come to that conclusion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, that is kind of embarrassing because the phrase was used in an opinion, I think, about 25 or 30 years ago, and it has been picked up in subsequent opinions. It is not out of the Constitution, but it is kind of a shorthand form, as I understand it, of saying the kind of justification you would have to ad- 340 vance, or a law that treats blacks in any way differently from whites or Asians or, you know, any sort of racial discrimination. And the Court has never gone so far as to say there are no circumstances in which that can happen, and I think the recent minority hiring cases, of course, talk about compelling circumstances that justify in some circumstances giving preferential hiring.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. IS that the same standard that is used for women?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I think the prevailing standard now for women is what is called intermediate scrutiny.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Why the different standard? In other words, it seems to me—if I can take you back, Mr. Justice—it seems to me it goes back to your interpretation of, as I read your statements and your speeches and your cases, all of which I have read on this area—and I have literally read more cases in preparation for this hearing than I did in 3 years of law school, and I went to law school on a full academic scholarship. I was the only one of three in my entire class. And I have literally read more of your cases. I think I have read about everything you have written. And as best I see it, you make the following argument: that is, that the 14th amendment—in section 1 of the 14th amendment, relating to due process and equal protection, that as you apply the due process clause of the section 1 of the 14th amendment, and the equal protection clause of section 1 of the 14th amendment to blacks, it is one standard. But as you apply it to women, there is a different burden of proof that is required. And my question is, what is your rationale for requiring one type of discrimination to meet a higher burden than another type of discrimination?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, it is not simply my rationale. But I think our
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I am only concerned about yours, nobody else's.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I am trying to think if I have covered that in anything I have written.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. YOU have.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, what case?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN, Well, what you have covered—the way as I understand you explain it, and obviously you know what you have written much better than I, but I tried real hard, you make the argument that the framers of the 14th amendment did not envision covering women; that women were not in fact persons similarly situated at the time the 14th amendment was written. And I believe you have even gone on to state a right somewhere that because section 2 of the 14th amendment makes reference to suffrage, that you stated that obviously they could not have been referring to women in Section 1, ergo although when they say "all persons' in section 1 of the 14th amendment, they obviously mean all blacks; that all persons does not refer to women. That is the argument that I glean from your writings that you make.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. That is
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, your time is up. But you can answer this question.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That is a mistake, Senator. And if you will come back to that, I can give it 341
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Will you give me time
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. May I expand on my answer?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes. I am seriously interested in knowing what
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The 14th amendment, the equal protection clause, by its term, applies to all persons. That is any person under the sun. So the question is what standards do you use in judging the claim of a person under that amendment? And the strict scrutiny standard or the compelling State interest standard that we talked about earlier, is the one that you use for judging claims advanced by blacks and similarly situated people.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Who are they?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think we have—I know the Court has applied it to Chinese, Chinese-Americans in the Yic Wo case. Then the question becomes, when a woman is advancing that claim on the basis of a law which distinguishes between men and women, does the woman or the man, for that matter, get the benefit of that sort of a standard, that very strict standard? And I think the response, and this has been mine, but also the other members of the Court, we do not agree entirely but we will both respond this way, no, discrimination between men and women is not to be treated the same as be it discrimination between blacks and whites. Women and men are virtually equal in our population. And much of the traditional discrimination against women by virtue of labor laws and so forth, while very unfair to them, nonetheless, does not have the—there are many situations in which distinctions between men and women are not genuinely invidious in the way that—it is not felt that it was the same to say, for example, that we do not hire blacks for heavy labor, which is a violently offensive thing, or to say we do not hire women for heavy labor. One may be as wrong as the other, but there is not the same invidious context.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, where do you all get this invidious context—I mean where do you read into—unless you—if you adopt, as you do, the original intent—if my colleague would allow me just to finish this. I do not think Senator Hatch would mind because it is really the most—if you go back to reading the intent of the framers as one of the elements that you take into consideration, I do not understand how you could read into the 14th amendment that it was intended to cover blacks and Chinese or Cubans or Lithuanians or whatever, because that was never discussed. I have gone back through the records as best I could, and I do not recall any debate at the time the 14th amendment was passed that spoke of any class of persons other than blacks. Now, maybe there was. I do not recall. I have not found it. And so if you can expand the categorization from blacks to other races, or blacks to other areas, persons similarly situated, I do not understand why you cannot expand it to women, other than by reaching a conclusion that you do not think it should apply to women. But I do not know how you can base it in an interpretation of the intention of the framers of the 14th amendment, which is something you always go back to in your writings. Whether it is the 14th amendment or the original document, you always go back to the intention of the framers. 342 Now, you have obviously expanded the intention of the framers based on the legislative discussion that went on in the Senate and the House at the time from blacks to other groups, but you have not expanded it to women. And the only conclusion I reach, and I am not saying you are wrong, I just want to make sure I understand it, the only conclusion I reach is you all think it should not be applied to women, not that you can say that you do not say that the framers intended it not to apply to women.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, is your question directed to the standard of review under the equal protection clause?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. It is directed to how you can come up with a different standard for review for women than you do blacks under the equal protection clause of the 14th amendment.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The explanation I just gave you a moment ago is the best one I can think of.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. But it is not—well, I do not understand it. Was it because the framers envisioned it that way, or is it because of stare decisis cases have
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO. I do not think anyone for a moment would contend that the people who drafted the 14th amendment in the Congress in 1868 intended to have a very wide ranging prohibition in that clause as to discrimination between men and women.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Why not? It says all persons.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, with all respect, I think you confuse the people to whom the amendment applies, which is everyone, every single person is covered by the language person in the equal protection clause.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Right.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. The question is when a person makes a claim, saying I am a person, and further describes themselves as black, female, Oriental, whatever, what standard do we use to decide whether their claim states a violation of the equal protection clause?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, the framers never made a distinction on standard. I do not recall anything where the framers ever mentioned any standard by which you would make that judgment other than relating to specific races.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, the clause is no State shall deprive any person of equal protection of the laws. That is all there is to it, 10 words.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Right.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. There is obviously no standard there and no varying standard. Yet, the Court has come up with varying standards and has adhered to them.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Oh, I know they came up with them. The only point I am trying to make is for those who suggest that you in fact, and your fellow Justices are strict constructionists and do not read other things into the Constitution, I want to make the point that you do. You have read in different standards. Because on the face of the document it is clear it says all persons. Now, it seems to me one has to make—and I know you are not alone in this judgment, but it seems to me, and it is presumptuous of me as a lawyer who has not practiced law in 14 years, because I have been in the Senate for 14 years, to get into such a heavy 343 debate with one of the eminent Justices of the Supreme Court. But it seems to me what you and your fellow eminent Justices have done is you have read into, under the cover of saying you are strict constructionists, you have read into the 14th amendment something that is not found in the debates relating to the 14th amendment, something that is not found on the face of the 14th amendment, which is all right. A lot of Justices have done that. I take no exception with that as my strict constructionist friends do. But the fact that what I do take exception with is my inability to understand your logic and rationale which you keep in other of your writing unrelated to this issue of gender. You always talk about in terms of what my colleagues from South Carolina and Utah would refer to as a strict constructionist interpretation. If you are a strict constructionist, it seems to me you get nowhere but to say that the 14th amendment either applies to all persons, and you cannot make distinguishing standards, or you say it was only intended to apply to blacks ergo it only applies to blacks. But once you get into this morass is like being half pregnant. No pun intended. You get into this thing when you talk about women, and you make a distinction on a different standard that is beyond me. I just want to make the point, then I will go back, and I will waive the next round since you have given me double the time. I want to pursue it more because it seems to me that, in fact, it is not what I would call a strict constructionist view of the 14th amendment, but I will get back to that. I thank you, and if you want to respond, it is up to the chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, you have pursued it a good while now.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Oh, I will. I hope my colleagues do not think I am being frivolous in this. I think it is a very important constitutional point, and I am kind of proud
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. DO you want to answer that now?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I was not sure it was a question. [Laughter.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I am not either. [Laughter.]
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I thought it was a Law Review article. [Laughter.]
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Judge. Thank you. I am flattered. We are laughing but there is a lot of women wondering.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Joe, you are young and bright. We are going to send you back to law school.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I am ready. I am ready.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Thank you, Mr. Chairman. I just have a brief question that I would like to propound. Justice Rehnquist, you have indicated that, in your opinion, one of the main problems facing the Supreme Court is a lack of decisional capacity. You pointed out that the number of cases that the Court now decides is not dramatically greater than it was deciding 40 years ago. But—and I think I quote you correctly—you say this is simply not a large enough number of cases to enable us to address the numerous important statutory and constitutional questions that are being decided by the courts of appeals and the 50 high courts of the States. 344 I think you wrote that in an article published in the Florida State University Law Review.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I did, Senator.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. What then do you think are the cases that are not being decided now that could be and should be decided if the Supreme Court's decisional capacity were increased?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. There are a number of cases where a Federal statute is construed one way by one court of appeals and another way by another. My colleague, Justice White, is the most determined advocate of this view, that there ought not to be those sort of different readings on any important question of law. In effect, the Internal Revenue Code ought to not to mean one thing in South Carolina and another thing in South Dakota. I think it is very hard to argue that position when you're dealing with a statute that's been enacted by Congress, presumably because Congress wanted a uniform interpretation. There are a number of those cases every year that we do not review because there seemed to a sufficient number of Justices to be more pressing issues that need to be reviewed. But I think all of us would agree that if there were adequate national decisionmaking capacity, those conflicts ought to be settled.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Of course, that is a view that Justice White has expressed very forcefully and very frequently.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, it is.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. On a number of occasions, Justice White has dissented from a denial of certiorari because of intercircuit conflict. But you have very rarely joined in those dissents. Are there other cases that you think the Court ought to be deciding?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. We have, for instance, constitutional decisions. I can't be any more specific than that, just because none occur to me right now, coming from all of the 13 Federal Courts of Appeals, and petitions coming from 50 of the State courts. Now, some of them are not significant questions, but some of them are significant. I also have the view that any constitutional decision has a significance all its own, by whatever court made. So I think with due regard for the limits of the court on the number of cases it can decide, I have felt that cases like that, perhaps, were—should have a higher priority than a simple statutory conflict.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. In that connection, Prof. Arthur Hellman has noted that during the last eight terms—and I'm quoting Professor Hellman—"Justice Rehnquist has published a dissenting opinion or notation in more than 120 cases in which the Court has denied review. By far the largest number of these, more than half of the total, consisted of civil rights cases which the lower court had ruled in favor of the constitutional claimant." Professor Hellman draws from that the conclusion that you would like to devote increased decisional capacity to a more searching scrutiny of cases in which the lower courts have found merit in a civil liberties claim. Would you say he was right in that conclusion?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If you mean by a civil liberties claim, Senator, a claim in which the, say, criminal defendant is raising a con- 345 stitutional defense to his sentence or trial, that has been sustained by the lower court, I think that's an accurate statement
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. YOU say an accurate statement?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It's an accurate statement. Because in reading some lower court decisions that come to us on petition for certiorari, I occasionally get the sense that some of their decisions don't conform to the constitutional law in the area that our Court has laid down.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. Would you have the same view of the decisions of State courts in this area?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If the State court decided a Federal question, probably yes.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. That's all I have at this time, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you, Senator. The distinguished Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I have no questions at this time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. Justice Rehnquist, there are a number of items brought up by the other side that need to be clarified. I will take a few minutes on some of those. Senator Metzenbaum, for instance, read a quote from a letter that is about 20 years old, long before you became a Justice. He did not read the whole quote, which, of course, I have to take issue with. I think you would, too. He read from an article by you entitled, "De Facto Schools Seen Serving Well." He read the following part of a sentence: "We are no more dedicated to an integrated society than we are to a segregated society" and stopped there. Let me read the whole sentence. We are no more dedicated to an integrated society than we are to a segregated society, than we are, instead, dedicated to a free society, in which each man is equal before the law, but in which each man is accorded a maximum amount of freedom of choice in his individual activities. The next sentence says, "The neighborhood school concept, which has served us well for countless years, is quite consistent with this principle." That is quite a far cry from the partial quote that Senator Metzenbaum hit you with a little while back. The full quote clarifies that you never endorsed segregation but, instead, endorsed a "free society", to use your terms, where "each man is equal before the law." I want to bring that up for everybody's attention because it is impossible to find anything in your writings other than a ringing endorsement of equality before the law. That is typical of what you have been suffering for the last couple of days. The letter proceeds to show that this concept is furthered by a race-neutral assignment of students to neighborhood schools. In this principle, the Senate agrees with you. It has voted several times over the years for this principle. This Committee has also voted for it. I would like to make the record clear on what I consider to be a misquote of what you had really said. Let me go to another area that was brought up as well. A few moments ago we heard that you wrote a memo to Mr. Justice Jack- 346 son, a great former Justice. In that memo it contained this sentence—and, I might add, I have a copy of it right here. It's an interesting memo. It is regarding "Re Opinions of Black and FF"— meaning Felix Frankfurter, I take it "—in Terry v. Adams." Then you start at the top, "If you're going to dissent, I should think you might combine the ideas which you expressed last week— et cetera. Then you say, No. 1, "Black", and you pretty well synopsize what Black's position was, and then "FF", meaning Felix Frankfurter, I take it—Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU then say what his position was. And then, No. 3, you then entitle this "your ideas." Now, who did you mean by that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Justice Jackson.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. You're saying "I'm summarizing your ideas?" Is that right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think so.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. When you say "your ideas," you mean that the view that there was no State action was Jackson's. Isn't that true?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I don't have it immediately before me, Senator, but that conforms to my recollection.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I take it from the memorandum that Mr. Justice Jackson was considering a dissenting vote at the time you wrote the memo.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have no recollection of this memo or any other memo, except to note they were typed by me. Certainly, the memo makes it appear that he was contemplating a dissent at that time.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. IS it a unique occurrence for a Justice initially to take such a view and then change his mind?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO; not at all.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That has happened to you, I take it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it has.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Has it happened to other Justices you know of?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I could say I believe it has. I would have to know more about my colleagues
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I think you're leading the witness.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I am leading the witness. It is really a life long ambition of mine to lead a Supreme Court Justice. [Laughter.] It seems the only question in this case was whether there was State action. There was no question that a State's discrimination against blacks was unconstitutional. There was no question that purely private conduct could not violate the 14th or 15th amendments. Am I correct, that this case merely presented the question of State action?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe you are, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. The only question was whether the private club involved in the case was the "State" within the meaning of the Constitution. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS I recall, it was.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Wasn't Mr. Justice Jackson's initial view a private club cannot be a "state"? 347
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I can't answer now as to what Mr. Justice Jackson's original view was. I think the memo indicates that that was his view.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. YOU say, "Your ideas."
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS I read your memos they clearly indicate that you personally find private as well as public discrimination ugly. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Your memo clarifies that the Constitution clearly does not allow a State to use its authority to discriminate or segregate. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. This seems to approve of the Brown ruling and clarifies your views on eradicating State-sponsored discrimination. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. AS to approving of the Brown ruling, I think Brown might have been argued but I don't believe it had come down. I think this was
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. But it indicates that your mind was certainly in the vein of approving the Brown
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Oh, sure. The 14th amendment prohibited discrimination.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. AS described, were Justice Jackson's views, that we should not let the states to permit a private practice result in manufacture of a bad law and hold that a private club is a 'state' . Were those basically his views at the time, to the best of your knowledge?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Reconstructing from this memo, I would certainly say so.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. This is not even controversial law today. For example, in Moose Lodge 107 v. Trivis, the Court held that a private club which refuses to serve blacks, or refused to serve blacks, was not subject to the 14th amendment, because it remained the club and not the State that was responsible for the discrimination. Is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think it is, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. IS it correct that you do not think it is desirable for anyone to engage in racial discrimination under any circumstances?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; that is absolutely correct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. That is uncategorically your position?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And it has been since you have been on the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; and for a lot longer than that.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. In Terry v. Adams it was Mr. Justice Jackson's opinion that the only issue was whether the club in question was engaging in State action and whether that is subject to the dictates of the Constitution. Is that a fair summary?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it is.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. This demonstrates that we have people who are going over the same ground that was plowed back in 1971, distorting the very same memoranda that existed then, and not reading it 65-95 3 0-87-1 2 348 very carefully, trying to attribute ideas to you that you really have never had. That has been typical of some of the questioning that you have had to undergo. I empathize with you. In any event, you made it clear. I personally resent anybody trying to imply that you do not believe in civil rights after listening to your testimony and after reading your opinions through all these years. I wanted to clarify the record and make it clear just exactly where you do stand. I again ask for fairness by our committee in treating a man whom I consider to be a very fine Justice, and whom many others do as well. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Justice Rehnquist, my time expired when I was about to say that I respectfully disagreed with the distinction you were making between what a Senator had a right to ask and what a Supreme Court nominee ought to answer. I would go back to the memorandum of Judge Reese, with your language, albeit in 1959: Given the state of things in March of 1957, what could have been more important to the Senate than Mr. Justice Whittaker's views on equal protection and due process. The only way for the Senate to learn of these (views) is to inquire of men on their way to the Supreme Court something of their views on these questions. Now, that statement by you, albeit in 1959, states specifically that the nominee ought to respond to the questions, doesn't it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I didn't hear it in what you read.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I'll repeat it. This is what you said: Given the state of things in March of 1957, what could have been more important to the Senate than Mr. Justice Whittaker's views on equal protection and due process. It was important to the Senate to get Justice Whittaker's views so that the nominee had a duty, or at least ought to have made those views known to the Senate.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that's your addition, isn't it, Senator? I mean, did I say that?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That the nominee ought to respond?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes; that's the import of it. Yes; that the nominee ought to respond.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It's funny, I don't have a—that is what I said at that time?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I have a document of the hearings of the Committee on the Judiciary, on the nomination of Sandra Day O'Connor, and it is a memorandum prepared by Grover Reese, who was Senator East's counsel. He quotes a statement attributed to you that says the Senate was entitled to Justice Whittaker's views on equal protection and due process.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, certainly, that is the fair import of the statement, just as you say. I don't think I appreciated, at the time I wrote that, the difficult position that the nominee is in. If you will read over some of these other confirmation hearings, I think you will see that other nominees have felt just as I have about the sort of question that you want me to answer. 349
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, there is authority that Justice Marshall would respond to questions, unless it was a specific case that was going to come before the Court. Justice Powell responded to questions on busing. There have been responses. But what I don't understand, Mr. Justice Rehnquist, is, having said that you thought that Congress could not take away the jurisdiction of the Court in first amendment cases involving speech, press, and assembly. What is your reluctance in saying, that the Congress could not take away the jurisdiction of the Supreme Court to decide cases, for example, on right to counsel?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, perhaps the distinction isn't as clear as I would like it to be, but I think there is some distinction. The Court has often referred to the first amendment as the preferred freedom, the indispensable matrix of a democratic society. I think that really is the guts, probably the thing that is the necessary prerequisite for effective democratic government. As important as many of the other constitutional guarantees are, I don't think they have quite that same importance in that context.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Are you saying that it might be possible to take away the jurisdiction of the Supreme Court of the United States to decide some issues relating to constitutional rights?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. When you say—you mean that I, as a Justice, might possibly vote that that was a proper congressional action?
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I don't believe I can answer that question. It would depend on briefs, arguments, and the like. The nominees before this committee have been, I think, quite steadfast in refusing to answer a question, which I believe from your question, you say bills have been pending in Congress to do that.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, I support you in that position. You cannot express yourself on matters that you anticipate will come before the Court.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. I strongly disagree with the distinguished Chairman. I believe there is nothing to Marbury v. Madison and the power of the Supreme Court of the United States to decide constitutional issues if there is any possibility of taking away the jurisdiction of the Supreme Court of the United States to decide any constitutional issue. I do not think that there is any distinction as to the power of the Court on first amendment issues as opposed to fifth amendment issues, or as opposed to sixth amendment issues, or as to any constitutional issues. If the Constitution and the power of the Supreme Court to interpret the Constitution, which the Congress and the President must follow means anything, then I see no way that Congress has the authority to take away the jurisdiction of the Supreme Court to decide a constitutional issue. And if you have a question about that, it troubles me very, very much.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, it is not that I have a question about it. It is the idea that, as you posit it, it is based on pending legislation in the Congress that could well come before the Court. 350 I think the precedents of many nominees before me foreclose me from answering.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I know of no legislation in the Congress today which opposes that issue. However, in 1982 the Senate passed legislation taking away the jurisdiction of the Supreme Court of the United States. That is why I am so concerned about it today. I think it is necessary that it be clearcut that members of the Supreme Court, especially the Chief Justice, would firmly believe that their power to decide constitutional issues could not be undercut by Congress. If there is any way that you distinguish the first amendment issues, which you have already answered, from the balance—I repeat, it troubles me. But, I am going to go on to some other questions. Mr. Justice Rehnquist, on the subject of the scope of the incorporation doctrine, I had started asking these questions before. You commented that as to the first amendment, the free exercise of religion was incorporated by the due process clause of the 14th amendment. You started to make a distinctions with respect to the establishment clause. Is there any question in your mind that the due process clause of the 14th amendment incorporates freedom of speech?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Other than the point I made yesterday. It, obviously, incorporates freedom of speech. I took the position in a couple of opinions I wrote in following Justice Jackson and Justice Harlan that some of the details might be different as applied against the States as opposed to the Federal Government.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Would you repeat the distinction you see as to the scope of the due process clause incorporating the establishment clause of the first amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO; I think that is settled by the Everson case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. All right. There is no question that the due process clause of the 14th amendment incorporates freedom of the press under the first amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think so.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Are the right of assembly and petition incorporated by the due process clause of the 14th amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think they are.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. IS the search and seizure clause of the fourth amendment incorporated by the due process clause of the fourteenth amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That was held in Mapp v. Ohio.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. DO you agree with that? Do you believe it is a decided matter?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It is certainly a settled matter, yes.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. IS double jeopardy under the fifth amendment incorporated in the due process clause of the 14th amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think that was in the—Senator, I am going to draw back a little. Because in a case like Benton v. Maryland that came to the Court where—before I got there. I did not participate in that case. I have followed Benton v. Maryland many times 351 when I have been on the Court. But to say whether I agree with a case that was decided before I came on the Court, I think it is better to phrase it that my record in voting on the case has certainly shown that I have followed that case.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Well, I am not asking whether you agree with it. I am asking whether you consider it a settled issue that the incorporation doctrine covers that issue. The concern I have is whether the incorporation doctrine is going to be undercut. Although, I do not think that you and I have any difference of opinion on this, I just want to be sure.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think in a case—I cannot remember—a case coming up from Montana, I took the—Justice Stewart joined my opinion, I joined Justice Stewart's opinion—saying that some of the nuances of the double jeopardy clause should not apply the same to the States as to the Federal Government. I think this was a case involving when the trial started, for the purposes of—when jeopardy attached. And the rule in the Federal cases was when a witness is first sworn. But Montana had a wholly different procedure. And it just seemed that a fair translation of the Federal rule to the State rule would not give you an identical situation.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, I believe you have gone overtime.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I believe the distinguished Senator from Alabama said he had no more questions?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Not at this present time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Illinois said he had no more questions.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I know it is a great disappointment to you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. And now it goes back to the distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you very much. Mr. Justice, would you like a Coke or a coffee or something?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO; I think I am OK, Senator. Thank you.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. OK. I would like to continue to pursue the line we were discussing earlier. You have written in an article that has been referred to earlier, The Notion of a Living Constitution, 1954 Texas Law Review, 699, page 700, 1976, and I am going to read a portion of it. You say: I certainly doubt that even leaders of the radical Republicans in Congress would have thought any portion of the Civil War Amendments, except Section 5 of the Fourteenth Amendment, was designed to solve problems that society might confront a century later. I think that they would have said that those amendments were designed to prevent from ever recurring abuses in which the states had engaged prior to the time. Now, that—first of all, do you recall that proposition you stated?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Sir, I remember giving a speech. I do not doubt that that is in it. I do not recall that offhand.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. But the thrust of it is consistent with, as I read your cases and all your other speeches, everything that you have said from the time you were a law clerk until now, which is basi- 352 cally that the Constitution should be interpreted by you in a more limited fashion than it has been by other Justices that you have sometimes been critical of.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think that is correct.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NOW, if we go back to the 14th amendment and section 1 particularly, which relates to due process and equal protection, and examine it in light of the expansion of the standard which a black person has to meet and the standard that a woman has to meet, if you examine those standards in light of your assertion that the framers, even those radical Republicans, did not write the amendment in an attempt to design problems which society had not yet confronted. I am curious as to, again, how you arrive at these two different standards, for black and for women, if you are willing to extend the standards for blacks to others than black. If you extend it all to any other race, as the Court has done and you have implied in the—was it the
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yic Wo.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. The Yic Wo case. Which was, what, 1948, or somewhere in that area?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. 1885,1 think.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yic Wo was 1885. Then obviously, it was before you were there. [Laughter.] But do you agree with the holding in Yic Wo?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. SO you agree that the 14th amendment was meant to cover more than blacks?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. OK, now when we move on to women, there are three categories the Court has used, three standards, as I understand it. One is the suspect category—not with regard to women, but with regard to any interpretation—with regard to the standard of application of section 1 of the 14th amendment, there are three standards: the suspect category, or strict scrutiny; that is one. And the semicompelling category, which was used in the—which case now, I am going to make sure I am going to get this right—Frontiero, was it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think maybe, Frontiero, yeah.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Frontiero.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. And I think Craig v. Boren.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And then the rational basis test. Now, the Court had used—other members of the Court had used the suspect category classification in the Frontiero case to be applied to women, right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It may be that some other members of the Court did. The full suspect classification, compelling state interests rule. I am not sure of that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. In your dissent in Craig you write: The Court's disposition of this case is objectionable on two grounds. First, it is the conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review that pertains to most other types of classification. Second is the Court's enunciation of this standard, 353 without citations to any source, as being that, quote, classifications by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives, end of quote. The only redeeming feature of the Court's opinion in my mind is that it apparently signals a retreat by those who joined the plurality opinion in the Frontiero v. Richardson from their view that sex is a suspect classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the rational basis equal protection analysis expounded in cases such as McGowan v. Maryland and Williamson v. Lee, et cetera, determine whether or not women can fall within, meet the standard required, for the equal protection clause of section 1 of the 14th amendment, you picked the lowest standard, the hardest standard to meet, the rational basis test.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. In Craig, yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Have you ever used any other standard relating to women other than a rational basis?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think in the Hogan case—I am not sure of this, but I think in the Hogan v. Mississippi case some 3 or 4 years ago I was in dissent. But I have a feeling either my opinion or the opinion I joined suggested that there was a higher standard than simply pure rational basis. I am not certain of that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And why was that? Why the change in standards?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, the sex discrimination cases had been before the Court for a long period of time. And it was treated strictly as rational basis. I think up until the time of Reed v. Reed, in about 1971. And there, without naming any level of scrutiny, as the cases say, the Court struck down a statute that discriminated between men and women. And in the intervening time, I think the Court and various Justices have taken different positions, is just trying to settle in on a standard that will govern discrimination between men and women. A plurality, as you point out, in Frontiero, had said this is just like discrimination against blacks. But then members of that plurality settle back in Craig v. Boren for a more middle-level thing. Whereas I had said in Craig I thought rational basis applied, I think in at least one case I have written or joined since then, I have intimated that something more perhaps than rational basis
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. The reason why I keep pursuing it relates not so much to your well-stated, if we characterize the Frontiero case—or the rationale in Craig as a withdrawal to a more moderate, to use your phrase, standard—it is clear that you have had the more conservative standard most of the time. And I am not arguing with that, whether or not that is right or wrong. I am trying to figure out how, if you acknowledge that this is, if you will, a moving target, that the standard is evolving or changing, one way or another; but it is evolving or changing. And the rational basis standard, at the outset, was an interpretation, an evolving of an interpretation of the 14th amendment. It was not written in the 14th amendment. 354 If you acknowledge that, how can you not acknowledge that the Constitution is a living, breathing document, that the standards do change as circumstances change and times change?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, much depends on what you mean by a living breathing document. If you mean that
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I will be more precise: a living Constitution, as you used it in your speech.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, it depends on what you mean by a living Constitution.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Let me be precise. Living Constitution means that—as you were referring to it—is that, as I understand having read your whole speech, that a living Constitution is one that in fact is designed to deal with abuses that in fact the State did not engage in prior to the time of the amendment. In other words, you were making the argument that—in that speech that if the State had not engaged in this abuse, how could it have been contemplated to be covered by the amendment. Therefore, when you are interpreting the amendment, how could you in fact stretch it to apply to what the framers did not intend? And those who say, living, they say, stretch it. You say do not stretch it.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I cannot put the speech right back in my mind, but perhaps I can tell you now
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not care about the speech. It is more what you think.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, and again, speaking in generalities, when you are dealing with something like the equal protection clause, which I think is a good example, it came about because of particular evils that were inflicted on newly freed blacks after the Civil War. But Congress, in attempting to protect these people constitutionally, used very, very general language. No person shall be denied equal protection of the laws. And it is fair to believe that that should be, for that reason, extended to people other than the particular group who was to benefit from it and who may have been the cause of the amendment into a principle of law that applies to, very broadly speaking, similarly situated people. The fact that there may be things that would be covered by the fair meaning of the equal protection clause, practices that were never started or had never occurred in 1868 certainly is not a reason, I think, for not applying the equal protection clause.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. But sir, in fact, the document is not nearly as static. Because, obviously, the rational basis test came about as a way to deal with the claim that women were protected in the same way, that blacks were protected under the 14th amendment. And one test arrived at was rational basis. Now, others came along and said, no, the rational basis is too conservative a basis upon which to do it. We should in fact expand that test, if you will—expand, change, alter—to a more liberal, if you want to use the phrase, interpretation of what test should be applied. 355 And then the Court moved again, and it said, well, it could be argued in Craig v. Boren, maybe we should take the more moderate test to determine whether or not it applied. The only point I am making is that the rational basis test as well as the strict scrutiny test were in fact interpretive judgments made by sitting Justices as to the extent to which the 14th amendment should go.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO question about it.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And you clearly are of the view that it should not go as far as others think it should go. But I do not imagine you would criticize those who say it should go further than you believe. You cannot really criticize them on the grounds that they are tampering with an intention that was clearly set in stone back when the amendment was passed. You tamper as much as they tamper, right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I would not say wholly right. But there is certainly something to what you say. If you are talking about people who go beyond the positions I have taken, and simply say that everything that bothers them should be a suspect classification. I do not suggest that any of my colleagues have taken that position. There, I think you would haT e an example of simply—of fitting the equal protection clause to reject your own personal dislikes or institutional factors that you dislike.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. But do you not do it to in fact reject things you dislike?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, it is not based on dislike.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, I used the phrase you used. I mean, do you not apply your philosophy as to the role of women in society to how you read that amendment? You clearly do?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I am not sure I agree with you, Senator. You know, you cannot get away from your philosophy, or whatever, as judge. But I think a judge should make a conscious effort not to simply bring his own philosophies.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I do not want to argue with whether you are right or wrong. You know, back at the turn of the century, the big debate about whether Austin and Kant were right about natural law, and then Pound and Llewellyn came along with their view about, you know, sociological jurisprudence. And remember that, when you had to study that about Pound's analogy that he made was, it was like cumulous clouds and there were certain principles that move just like cumulous clouds, move out beyond your range, and another moves in. The law has to adjust as your vision adjusts. And then you come along with Frank and his book, "Law and the Modern Mind," which was sort of the seminal piece written on whether or not we really are legal realists or not. And there has been a debate that goes back and forth. And I just want the folks out there to understand
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Your time has gone way over.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. OK. Well, I will stay here until midnight until I get a chance to ask all my questions. So I will wait. I will come back to Llewellyn, Pound, Frank, and the rest.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The senior Senator from Maryland.
Senator Charles Mathias (MD)
Senator
(R)
Senator MATHIAS. I pass at this time. 356
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The senior Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I reserve until later.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The senior Senator from Nevada.
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. I yield my time, Mr. Chairman, to the distinguished Senator from Pennsylvania.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The senior Senator from Pennsylvania.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you, Mr. Chairman. Thank you, Senator Laxalt. I just have a few more questions for Justice Rehnquist. I had gone through a number of the provisions of the Bill of Rights on the incorporation doctrine, Mr. Justice Rehnquist, because I think it is important to lay to rest the conclusion that the 14th amendment due process clause does incorporate certain provisions of the Bill of Rights. I have only gone over the ones which have been incorporated. I have not gone into the ones which have not been, because I do not want to move into a lot of areas of the law which are not settled. There are two remaining areas I want to ask you about. Do you regard it as settled law that the speedy trial provision is incorporated under the due process clause of the 14th amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I think that is settled law, and my opinions reflect it.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. What about the cruel and unusual punishment provision of the eighth amendment, is that incorporated into the due process clause of the 14th amendment?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, my opinions reflect the fact.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Mr. Justice Rehnquist, as you see the concerns I have are the authority of the Court, as decided in Marbury v. Madison, court-stripping, and the provisions of the Bill of Rights which are incorporated under the due process clause. There may be other provisions, and I suspect they will unfold when the Court gets to other issues. I want to take up a final subject with you; that is stare decisis, which is where the distinguished chairman started off. I asked you questions about staying with the established principles. He asked you why so many cases had been reversed. You made a comment that the docket now reflects a great many more constitutional issues. When you testified in 1971 you had made the point that if there is a long-standing decision, which is unanimous, it is more likely to be as an established precedent which is not to be overturned. You said in one of your comments, page 169, that, "Again, an 8 to 1 decision is not one likely to be disregarded, but nonetheless, if upon reexamination, given the weight that you ought to give to a precedent, it appears wrong, then it is wrong. But 8 to 1 is a very substantial, weighty consideration on changing a precedent." There has been a great deal of concern expressed about the numerous cases where you were the sole dissenter. Without getting into whether that is good, bad, or indifferent, the question that I have is whether you would, as Chief Justice, and the extra prestige of that position, assert your position as the sole dissenter against eight other Justices, or whether you would regard those decisions, even though you dissented at the time they were made, as precedents to be followed by the Court? 357
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think certainly precedents to be followed under the standards I earlier indicated, to which you referred. Now, I think it is unsettling, also, to the—sometimes to the country, if it is a big enough situation, but always to the profession and to courts who have to apply the case, to have a case overruled. And cases have been overruled, there is no question. But I think as an institutional matter, the Chief Justice, probably has something of an interest in seeing that there is stability in the law.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thus, there need not be a concern in the numerous cases where you were the sole dissenter, that you will utilize your new position to try to establish that as the ruling of the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I have not been over every one of them, Senator. If there was a particular issue that I felt very deeply, after having reviewed the majority opinion and my own, and it was a constitutional issue, I certainly might feel obligated under my oath as Chief Justice to continue to vote for that position. But unless it were of that stature, I certainly would feel the other way.
Senator Arlen Specter (PA)
Senator
(R)
Senator SPECTER. Thank you very much, Mr. Justice Rehnquist. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Thank you. The distinguished Senator from Illinois?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I have no questions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will take a recess for 10 minutes. [Brief recess.] The CHAIRMAN. The committee will come to order. The distinguished Senator from Ohio.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Justice, you said earlier that a statement in your clerk memo on the Terry v. Adams case represented the views of Justice Jackson. Did you, in all of the time you worked with Justice Jackson, ever hear him say something like the following: It is about time that the Court faced the fact that the white people in the South do not like the colored people?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I simply cannot recall at this stage, Senator.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I understand. I do not expect you to remember whether he said that specific kind of thing. But the point is, did Justice Jackson ever voice any ideas like that, that white people in the South do not like the colored people?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I simply cannot recall at this time.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Was that not Rehnquist's statement rather than Jackson's statement?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If the memo you are referring to is the Terry v. Adams one that we discussed earlier, that may have been a paraphrase. It did not purport to be a literal transcription of what Justice Jackson had told me of his ideas. But it certainly was a reflection of them, and an accurate reflection of them I would have thought. Certainly not necessarily and precisely the language. 358
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. IS that the way Justice Jackson felt about white people's attitude toward black people in the South? You worked for him how long?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. A year and a half.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. IS that the way he felt about white people's attitude toward black people in the South?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That white people in the South did not like black people?
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Yes.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I simply cannot remember.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. In citing your statement in your letter regarding the Phoenix school desegregation plan, I think you suggested I took your statement out of context. If that be the case, I would like you to point out to me how I did so, and if you want me to, I will be happy to read the entire letter that you wrote, because I never willfully took anybody's statement out of context. And I do not think I took yours out of context. And so I would like to have you clarify for me in what manner it was taken out of context.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I was asked about that, I believe by Senator Hatch, afterward, and he pointed out that after the words, leading to a segregated society nor to an integrated—but to a free society in which each person is equal under the law. And then there is another phrase added which I cannot remember.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. That each man is accorded a maximum amount of freedom of choice in his individual activities.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And with that, there is no question those are your views?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. There is no question those were my views at the time.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. And do you still believe that we are no more dedicated to an integrated society than we are to a segregated society. You think this Nation is not more dedicated to an integrated society than it is to a segregated society?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think generally it is more dedicated to an integrated society than to a segregated society, where you are talking about any sort of legal action or any sort of government-sponsored activity.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Your letter to the editor—I guess it is a letter to the editor, or else it is an article; I am not sure—"De Facto School Seen Serving Well"—indicates that you find it sort of coequal, that you can have a segregated society just as well as having an integrated society. And if you are a black person or you are an Asian or you are an Indian, or whatever, would you not be offended by knowing the Chief Justice of the Supreme Court felt that we are no more dedicated to integrating our society than we are to segregating it?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly phrased the way you do, yes, I would be. But I think the statement was also made in the context of a proposal for fairly extensive busing of kids that would have pretty well torn up the neighborhood school system. 359
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. AS a matter of fact, I do not think there is any mention of busing in this whole letter, although I could be wrong. There is some mention of the neighborhood schools concept. They assert a claim for special privileges for the minority, the members of which in many cases may not even want the privileges which the social theorists urge be extended to them. That is the age-old argument that we whites really know what is better for those blacks. Is that not what you are saying?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think it is, Senator. I think it was the idea that some of the blacks would not have wanted their children bused.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, this is not talking about busing. This is talking about special privileges for the minority.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, Senator, one of the superintendent's proposal, I think, to which I was objecting—again, it is 20 years ago—was one in which he said that busing was a possibility, or he would not rule out busing.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I will not carry that on. I want to return to your decisions in the race cases, and the equal protection clause, because I think, Mr. Justice, in considering you for confirmation, I believe that we have to take the totality; not alone a letter, not alone a memo, or not alone some article. We have to take a look at the totality of your activities, and your Court decisions. I believe that part of our responsibility is to assure every person in this country, whether white or black or whatever color, regardless of whatever religion that person may have, or even if that person has no religion, whether rich or poor, that this man should be the Chief Justice of the United States. No question, you are on the Supreme Court, and you want to remain there. But I think we constantly fight a battle in our country to see to it that people have confidence in their Government. And we do not do too well, because people do not have that much confidence in their Government. And that includes in the Congress in which I serve; the Presidency; the Supreme Court. And I think one of the toughest issues that face us has to do, not alone with your decisions, but with your expressed personal views before you were a member of the Supreme Court. I have previously mentioned that minorities, blacks, and other minorities were not comfortable about your past history when you were first appointed to the Court. And the question now is: Can they feel more or less comfortable upon your ascendancy to the position of Chief Justice. Frankly, I would like to accept your representation about your impartiality. But frankly, your record since you have been on the Court still makes me, and large groups of racial minorities from whom we will hear later this evening, uncomfortable about your commitment to racial equality. You dissented from the important decisions which have given practical meaning to Brown v. Board of Education. And then you also dissented in the Battson case. Now in the Battson case the Supreme Court said that a prosecutor who removed all blacks from a jury, trying a black defendant, must explain that conduct. The Supreme Court said that the expla- 360 nation cannot be based on their race, but must be based on some reason other than race. It is a very significant point, the prosecutors removing all blacks from the jury. The black defendant is understandably concerned. And so the case went to the Supreme Court, and the Court said that public respect for the criminal justice system, and the rule of law will be strengthened if we insure that no citizen is disqualified from jury service because of race. And we know that you dissented. I think you were the sole dissent in that case.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the Chief Justice joined in that.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. NOW, in your dissenting opinion, you said prosecutors often object to black jurors based upon seat-of-thepants—let me read you, because I think I was cutting a portion too short. In my view, there is simply nothing unequal about the State using its peremptory challenge to strike blacks from the jury in cases involving black defendants so long as such challenges are also used to exclude whites in cases involving white defendants; Hispanics in cases involving Hispanic defendants; Asians in cases involving Asian defendants; and so on. Mr. Justice, I do not want to belittle your opinion, but isn't it rather sophomoric to say that whites can be excluded in cases involving white defendants. That is just unrealistic. Ninety percent of this country is white. And so to say that some prosecutor might be excluding whites from the jury in the case of white defendants, and they did that with respect to Asians in connection with Asian defendants, then there would be nothing wrong with their doing that to blacks being excluded from the jury in the case of black defendants. Could any black possibly accept that line of reasoning, knowing that he lives, or she lives, in a 90 percent white society in America, and think that that is fairness?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I set forth my reasons in my opinion. I realize you disagree with them, but I do not think I should be in the position of defending it any further than what I stated there.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, I might say to you, Mr. Justice, I have noticed that when the chairman had some questions to you earlier today about some of your decisions, you were much less reluctant to discuss the decisions and the substance of the decisions, and I actually made some note of that fact and probably could find the note around here.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator, excuse me, but I do not believe I have asked him any questions today.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Well, if it was not today, then it was yesterday. I may stand corrected on that. But I think you did ask him today, didn't you?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. NO.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We will not quibble about whether it is today or yesterday. It seems like an eternity we have been here, so I will not worry about
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. It is the third day we are in session now on this nomination. That is right. 361
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Put yourself in the position of blacks of America, some of whom are in this audience, some of whom are watching this on TV, and they say, "Well, he's wonderful. He doesn't mind blacks being excluded from juries in which there are black defendants as long as whites are excluded from juries in which there are white defendants. Who is he kidding?" And I guess I cannot believe that you would not want to expand upon what you said in that case.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not believe I should expand on it, Senator, for the reason I said, but I would add that what I said was the law laid down by the majority of the Supreme Court in a case called Swain v. Alabama, in 1966, when some of my present colleagues were on the Court and voted that, voted that way. So, it was no novel idea on my part. The rest of the Court decided to overrule that case. I did not feel it should be overruled.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. Mr. Chairman, I do not have any further questions of this witness, but I was one of those who joined with Senator Kennedy in connection with the issue of the documents, Have we received any further word from the Office of Legal Counsel as to whether those documents
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We have not yet. I think you will pretty soon.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. We will. All right. I think that it is something that we ought to deal with as promptly as it comes here in case we wish to make a further issue, or cannot resolve it satisfactorily. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Where is Senator Biden? Does he have more questions? You had better reach him right away, then, because we are ready to move on. The distinguished Senator from Alabama.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman.
Senator Howard Metzenbaum (OH)
Senator
(D)
Senator METZENBAUM. May I just make a statement, please. I have a strong interest in what the witnesses are going to say and what the testimony will be, and what my colleagues are saying. They suddenly have brought up the repeal of the Windfall Profit Tax on the floor of the Senate, and I must leave, but it is not for a lack of interest nor courtesy to the Chief Justice.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Yes. Does the Senator from Alabama have any questions?
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. Mr. Chief Justice, we might have a little humor right here. You have been here observing how Senator Simon and I are down at this end, and how several of the Senators are on the other end. The seniority system has it. Now, do you have any views on the equal protection law, as to whether it is a suspect system, or whether this seniority system is a reasonable classification? Do you have anything that you would like to state about that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I am not sure I am—I think I might be disqualified to answer, because I have been suffering for 15 years from exactly the same problem. In that period of time I have had the meteroric rise in seniority from ninth to seventh, which is still very junior in our institution.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. NO further questions.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Just one question, following along the lines of Senator Metzenbaum's question. I would request a personal, philo- 362 sophical reflection. Do you believe that moving toward a less segregated society is a worthy goal for government, whether accomplished by the Federal Government, local schools, courts, or other appropriate bodies.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I do.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Thank you. I have no further questions, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We are going to recess for 5 minutes, and send for Senator Biden to see if he has more questions. We have some other witnesses here, about forty of them we have been holding all day. We are ready to get to them. So we will take a recess for 5 minutes for Senator Biden's man to locate him. [Recess.] The CHAIRMAN. The Committee will come to order. The distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you, Mr. Chairman, and Mr. Justice, I am not going to be much longer, and I believe I am the last one, and Mr. Justice, you will be able to go get a good dinner, I hope, and as long as we have kept you here, we should be buying, but that may be a conflict of interest. So instead of that, Mr. Karlogis will pay. [Laughter.] A couple questions. Can you, as succinctly as possible, tell me how you choose the rational basis test over the compelling interest test, as it relates to women?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think one tries to analyze what the situation of the people are that are making the claim. Whether it is most like the blacks, who are the victims of slavery and discrimination, at the time the 14th amendment was adopted, or, whether they are a group that has a pretty full access to society, no question of right to vote, how big a fraction of society are they—that sort of thing.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, in the case you decided, where you changed the standard, where you moved from a rational basis standard to another standard, I believe you said that was the Mississippi case, Mississippi v. Hogan?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think it was. I am
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I think it was, too. That is my understanding. And it was that you used there the intermediate level of scrutiny on gender discrimination. And so I am clear on the position: that was the one in which Justice O'Connor, writing for the majority, held that a State university nursing school could not be limited to women only, is that correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes. I believe it is.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And you dissented with Justice Powell, concluding that it was constitutional to discriminate on the basis of gender in nursing school admissions, correct?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I believe that is correct, yes, saying that the nursing school could limit its enrollment to women only under the circumstances of that case.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Have you ever voted to strike down a genderbased classification as unconstitutional under the equal protection clause?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think in Kirchberg against Feenstra if I recall, I think I did, and I think one of the Weinberger cases. There were a number of them. I cannot remember which ones.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NOW based on your view, stated view of the equal protection clause of the 14th amendment, would you have voted with the majority to require one man, one vote, or Mr. Justice Harlan who dissented in that case?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, this is something like one of the questions that came up with Senator Specter, I think, whether it is one thing as to whether my, the opinions I have written while on the Court subscribe to the view in the one man, one vote case. In Mann against Howell I certainly did subscribe to it. But to go back to a to a time when I was not on the Court, and say, as a judge, how would you have voted then, I think perhaps only someone who has been a judge realizes the difference between hearing the holding of a case and saying, "Well, that sounds all right to me," or, no, it does not, and the act of going through, reading the briefs, hearing the arguments, discussing the case in conference. You cannot substitute for that experience.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. NO, I agree with that, but isn't one man, one vote—you know—Baker versus—isn't that such a fundamental principal that has been established now, that you are not really doing that?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. If you ask me whether I subscribe to the principle now—as I said, in Mann against Howell, which I wrote for the Court, there is no question that that principle—I thought you meant put yourself back as if you were a Justice
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, I did, I did, but
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think I can answer that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. In Katz v. The United States, the Supreme Court held it unconstitutional for the Government to eavesdrop on telephone conversations without a warrant. The decision was based on the fourth amendment. Rather than ask you would you have voted to require a warrant, can I ask you, have there been cases since you have been on the Court, which in fact you have agreed with the majority on Katz?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, there have been.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. In Griswold v. Connecticut, the Court held it was unconstitutional for the State to prevent the use of contraceptives, and the basis of the opinion was the constitutional right of privacy reflected implicitly in several constitutional amendments, but not explicitly in the Constitution. Have you ruled in any cases that would in fact subscribe to that principle?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am not sure that I have because I have had some difficulty with it, and the most recent decision of our Court, in that case, the Hardwick case, declined to accept, to extend the principle to the right to practice homosexual sodomy. There may have been cases in which I have subscribed to that, but I have been somewhat at odds with some of the members of the Court on it, and so I am hesitant to say yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, as I read that decision, in the Griswold case, it seems to me if you had been around at the time of Griswold you would have dissented, I suspect, if the reasoning were logical. 364 B But let me suggest that—I am just going to try to clean up some things here. In retrospect, do you think that the voter watch program that you participated in—I am not suggesting, I am not making a statement as to whether or not you intimidated, or did not intimidate voters. But the voter watch program, back when you were an attorney in Arizona, do you think, in retrospect, that was a good program? Not while you participated.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I understand you. I think the voter watch program, as conceived, to have Republican poll watchers in all of the precincts, and to have some sort of a test, according to the statute, as to whether or not they resided where they said they resided, was entirely sensible, and in accordance with law. And I think there is nothing to apologize about it, for at all. I think the provision allowing challenge for literacy was one that very readily lent itself to abuse, was outlawed in 1964, and I think that one would be better left undone.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Undone. You mean
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think the challenges for literacy, even though they were authorized by the statute, looking back with the benefit of hindsight, there were abuses on the part of our poll watchers.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. There has been discussion here about where other—and I am trying to find it, but yesterday, at some point, you indicated that, I thought, you placed certain people on the spectrum of the Court as being—you referred to several Justices as the centrist Justices. Where do you sit in that spectrum within the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. On the present Court?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Yes. On the present Court.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. On the conservative side. [Laughter.] Using that term for want of a better one.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. DO you think you are the most conservative Justice on the Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Again, using that term for want of a better one, I think the Chief and I are probably the most conservative, and it may be that I am moreso than he. I am just not sure. This is, I mean, on the basis of our opinions, not on the basis of our
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That is what I am referring to.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST [continuing]. Personal preferences.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I know in terms of your personal—not in terms of your personal—in terms of your actions, you are a good deal more liberal than—I mean, anybody who would arrange for a cardboard cutout of the Chief Justice is my kind of guy. Let me ask you—I am trying to sum these up and I only have a few more. Oh. On the two cases, as to make the case that you are open-minded, which was, there was a question about how openminded you were. You cited two cases where you have changed your view.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And now I may be wrong: we went back and looked at the cases, and I must admit, unlike the other ones I have been speaking to, I personally did not read the cases. 365 But I am told that it is true, you changed your view. You became more restrictive. I may be wrong, and I would like you to speak to it. United States v. Scott. Or Daniels v. Williams, I believe you suggested was one case, where you had changed you mind, and as evidence that you had an open mind, you were willing to change your point of view. United States v. Scott. Daniels v. Williams overrules Parrott v. Taylor, but only to impose a more restrictive interpretation of the 14th amendment and due—let me say I am reading from a staff memo. I would like you to comment on it.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. OK.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Imposed a more restrictive interpretation of the 14th amendment due process clause. In Parrott, the Court had been asked to rule that there could be no deprivation of due process under 28 U.S.C. section 1983, a Federal civil rights statute, unless it could be shown that the defendant act^ed to deprive rights with more than mere negligence. The Court declined to adopt the position in Parrott, ruling instead, that the proper inquiry for deprivation of due process was whether or not the plaintiff had some other legal process open to him. In Daniels, however, Justice Rehnquist took the next step, to hold that there can be no deprivation of due process unless the defendant had acted with more than negligence. This means a person—an example—an incarcerated prisoner, who is deprived of due process through negligence—that is, an inadvertent failure to apprise him of his rights, may be unable to recover for the injury. Now, is it a proper characterization to suggest that you took a more restrictive view of the due process, and that was the change that you were referring to?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. That was one of them, yes.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. The second one, United States v. Scott in fact does overrule States v. Jenkins—still reading from the memo—but only to impose a more restrictive interpretation of the double jeopardy clause of the Constitution. In Jenkins, the Court ruled the double jeopardy clause of the Constitution barred the retrial of a conscientious objector to the draft because jeopardy had attached. That is, as the facts had been presented to the trial court, when the trial court dismissed the case. In Scott, Justice Rehnquist admittedly—they are saying Rehnquist, but you are Mr. Justice Rehnquist to me. In Scott, Mr. Justice Rehnquist wrote that the retrial of a defendant was allowed even though his first trial had been dismissed based upon a delay in prosecution. As Justice Brennan's dissent points out, this decision creates artificial distinctions between when a defendant may be tried a second time. Justice Rehnquist's only rationale for his change was the experience the Court had with the Government appeals of prosecutions during the interceding 3 years. 366 Is it correct to say that this was a more restrictive interpretation of
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not think it is entirely correct to say that in that case. It was two different versions of double jeopardy: one which seemed to make sense at the time it was written, and then, because of other intervening decisions of the Court, it just made a good deal less sense by the time we got to Scott
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And really, what we are talking about throughout all of this discussion you and I have had about the 14th amendment are different versions, different versions?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Certainly. Not different versions of the amendment but different cases taking different positions, interpreting.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. All right. I do have other questions, but I will, in the interest of time, yield, and ask that the questions that I do have, remaining, be submitted to the Justice. There are not very many, Mr. Justice. They relate primarily to the area that we had discussed before, relating to some of the cert memos you had written, where you had, you know—for example—said that, "I personally don't see why a city can't set aside a park for ball games, picnics, or other group activities without having some outlandish group like the Jehovah Witnesses commandeer the space and force their message on everyone." I mean, there are questions that I would like to ask relating to those. I will submit those, in writing. And lastly, Senator Byrd—I am going to ask, which is—you know—as Chief Justice, you will get to assign opinions. As a ranking member you do not have quite as much authority, but if you do it in public it sometimes helps. I would like to ask my colleague from Illinois, if he will read aloud, on behalf of Senator Byrd, ask aloud the questions that Senator Byrd would like to have asked, because I have got to go for 15 minutes. Are you going to do that?
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. I am willing to do that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. And they are the only questions, and Senator Byrd specifically asked that the questions be asked and you respond to them at this time rather than submit it in writing. Mr. Justice, I want to thank you for your patience, and I appreciate the fact that you were cooperative with the chairman's rigorous schedule that he has put forth. Thank you.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Illinois.
Senator Paul Simon (IL)
Senator
(D)
Senator SIMON. Yes, I
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, could I ask before the Senator begins, that we have a 1-minute recess here for the four of us to have a brief little, without excusing
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will take a recess for a few minutes. [Short recess.] The CHAIRMAN. The committee will come to order. There has been an erroneous report that the committee has agreed that an independent physician will examine Justice Rehn- 367 quist in return for a pledge that there will be no health related questions posed to Justice Rehnquist. This is false. While I understand that Justice Rehnquist is perfectly willing to answer any questions put to him concerning his health, we have nonetheless reached an understanding that Justice Rehnquist's health records are confidential. Senator Biden and I have agreed to have an independent physician review Justice Rehnquist's medical records and report to the committee on their contents.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Delaware.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Mr. Chairman, that is correct and the independent physician who will review Justice Rehnquist's medical records will also speak with Justice Rehnquist's doctor and, in fact, report on a confidential basis to the committee. One more thing if I may, Mr. Chairman, a procedural matter again. You and I have been up here discussing with our colleagues the order of witnesses. And as I understand it, we will be able to tomorrow morning, by beginning at 8 o'clock instead of later, that we will begin with—who we begin with remains to be seen. But the two panels that are going to take issue with Justice Rehnquist, one a panel, the Civil Rights Panel, panel 4, and panel 6.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. I do not care what panels they are. We have agreed that we will start at 8 o'clock tomorrow, and I fully intended to stop at 1, but we have agreed to go to 2 o'clock tomorrow. And in that 5 hours tomorrow, we will take only 2 hours and give them 4 hours. In other words, give them twice as much time as we have. And we will go tonight until we finish everything tonight except the 6 hours tomorrow. They can use any witnesses they want to tomorrow during their 4 hours, but we are going to finish at 2 o'clock. Is that agreed?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That is agreed. Now, one other thing. I have just been told by staff that Senator Simon should withhold asking those questions because Senator Byrd may physically be on his way over to ask the questions himself. And there is a vote. We could recess for the vote, Mr. Chairman. We have five bells and we will be right back.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will recess for a vote. [Recess.] The CHAIRMAN. The committee will come to order. You can notify the Justice we are ready. [Pause.] The CHAIRMAN. The committee will come to order. The distinguished Senator from West Virginia.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Thank you, Mr. Chairman. Mr. Justice Rehnquist, I apologize for not having had the opportunity to attend the hearings prior to this moment. And I apologize to the chairman and the other members if I am delaying the actions of the committee, but I do not need to explain that I have been very busy elsewhere. 368 I would like to ask you, Mr. Justice Rehnquist, what would be the single goal which you would most like to accomplish if your nomination to the office of Chief Justice of the United States is confirmed?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator Byrd, I think the goal would be in the field of judicial administration rather than just the work of the Supreme Court. And it would be to try to persuade Congress and the country that we do need what has been referred to as an intercircuit tribunal, or a National Court of Appeals to operate as kind of a Junior Chamber of the Supreme Court because of the increased caseloads in all the other courts. I know there have been proposals submitted to the Congress for that. But they have not really gotten the necessary number of votes to be enacted into law. And I would hope by working with the Judiciary Committee in the Senate and the Judiciary Committee in the House, and by doing whatever else I can to assist those committees and getting some support in the ranks of the profession, to get such a court created.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Mr. Chairman, has anyone asked this question of the Justice, or has he spoken of it prior to this moment?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. They have asked questions somewhat similar, not exactly.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, I do not want to go over the same ground if these questions have been asked. Would you contemplate a court, the members of which would be nominated by the President and confirmed by the Senate as is the case with district courts, appellate courts, and the Supreme Court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Senator, I would. As you know, the bills that are pending do not take that position. I think perhaps with an eye to appeal to the Congress on the ground of economy, they contemplate using existing circuit judges, and simply having a rotating panel that would sit part of the year in Washington to decide those cases. But there have been very real difficulties raised, I think, with the manner in which judges to that sort of a court would be appointed. And so I think I would favor, if Congress would accept the idea, the idea of a really new court, called it what it is, with new judges to be appointed by the President and confirmed by the Senate.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you briefly then state what your objection would be to the proposals that would provide for judges being on that court who already serve on circuit courts, and what would be the downside to that, and what would be, as you see it, the advantage of having a new court, an intermediate court, that would be made up of persons nominated by the President and confirmed by the Senate?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Let me say first, Senator, that if Congress should feel that the Court could only be created under one of the existing proposals, I would cheerfully abandon what seemed to me some objections to those. But the objections do not come from me; they come from other segments of the profession and other judges. There are two existing proposals, as you know, for staffing or picking the judges of the new court of appeals under the existing bill. One would be that they be picked by the Chief Justice of the 369 United States. And I am loath to subscribe to that because I think it would give the Chief Justice too much power over the composition of the court. Another proposal is that the judges be elected by each of the various circuit counsels and the regional courts of appeals that now sit in the country. I have some reservation about that because, as I answered one earlier question, I believe, I think it would tend to make the new court a little bit like the United Nations with the judges named to it having loyalty primarily to the court of appeals from whence they came rather than to the new court. And that is why I think it should be appointment by the President and confirmation by the Senate.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would you see any constitutional question that would trouble you with respect to any approach other than the creation of a court, the members of which are nominated by the President of the United States and confirmed by the Senate of the United States? These would be officers of the United States, right?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes, I suppose they would be.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And as officers of the United States, why would they not come within the provisions of the Constitution which refer to the nomination by the President and the confirmation by the Senate of members of the Supreme Court, and officers, which term would include the district judges, the appellate judges, and also these judges on this intermediate court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I see your point, Senator. I think that some thought has been given to it, and it was thought, I believe, that there was a precedent for it in the Temporary Emergency Court of Appeals which sat during the Second World War, and which sits now, where the judges held judicial office in a regular court and were appointed to this rather temporary court. But I realize, as you suggest, that if the court were not temporary, then you would really have a problem under the officers of the U.S. court.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. And I take it that some of the judges who presently sit on the circuit courts throughout the country would be not exactly enthusiastic about the creation of this new court?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. They have manifested, the majority of them who have spoken out on it have manifested, I think, disagreement with the idea.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, I am interested in your having indicated that this would be "the goal," as I phrased it. I asked if you could respond to that, and you did. I am, I think, more interested than I have been heretofore in this proposal. And I am anxious to get interested, not only to get what you see as the goal you would most desire to achieve, but also with respect to your viewpoint as to the constitution of that court, and so on. Well, I will be interested in working with you once you become Chief Justice, if you do become Chief Justice, and I am not passing on that one way or the other right now. But this is a matter which I think will become more intriguing as time goes on and as the necessities grow for some attention to be given thereto. Let me go now to another line of questions. 370 Are you familiar with John Ehrlichman's book, "Witness to Power?*
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am familiar with it in the sense—was that the first book he wrote?
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I do not know how many books he wrote. I have in my hand here a book "Witness to Power."
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think I am familiar with it. I have not read it from cover to cover. I think I have read parts of it.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I shall read from page 136 of that book, and first of all let me read a paragraph in which Mr. Ehrlichman was not too flattering of Senator Robert Byrd of West Virginia. [Laughter.] Senator Robert Byrd of West Virginia would be flattered to be considered, Nixon reasoned. There should be some public speculation about Byrd for the Court. He had gone to law school at night and had never practiced law, but it should "get out" that Nixon thought so much of Byrd's ability that he would consider him for the Court. Byrd then would be much easier to work with. And I do not know why he said that, "He is a very vain man of limited ability." [Laughter.] Well, I agree with half that sentence. I will leave it to you to guess which half. [Laughter.] Nixon mused. As I asked questions, it became clear that Nixon had no intention whatever of nominating Byrd. You know, that comes as a great disappointment to me because I always thought he really meant it. [Laughter.] But he wanted Byrd to hear that his name had been on the President's list—a very short list. Now, these are the paragraphs which I would call to your attention especially. William Rehnquist had been the White House's lawyer from the first days of the Nixon Administration. Deputy Attorney General Richard Kleindienst had recruited him from their home State, Arizona, and designated him to head the Office of Legal Counsel at the Justice Department. When I became Counsel— This is Ehrlichman speaking— When I became Counsel to the President, I was told that William Rehnquist and his staff would be available to brief and answer any of the legal questions that arose in the White House. I was delighted. Bill Rehnquist and I had been law students at Stanford at the same time, and I knew him to have been a superb student. In 1969, when I was Counsel, I sent him more than a few tough questions, mixed issues of law and politics, and he handled them well, with a sensitivity to the President's objectives and to the practicalities of our situation. Bill Rehnquist and I talked often. After I moved to Domestic Affairs, we served on some policy committees together. Occasionally we met socially, at the public school that our children all attended or at some party. Do you recall your acquaintanceship with Mr. Ehrlichman in a similar fashion to that which he has just recounted here?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think very much so.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Let me read this sentence again: When I was Counsel, I sent him more than a few tough questions, mixed issues of law and politics, and he handled them well with a sensitivity to the President's objectives and to the practicalities of our situation. Do you recall his sending you these "tough questions, mixed issues of law and politics?"
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I, certainly, recall him sending me some tough questions. This far back in time, it is hard to pick out any one thing. 371 But the most difficult thing about many of the questions we used to get from the White House in the Office of Legal Counsel was not the inherent difficulty of the question. They were questions that any good lawyer could have answered in 2 weeks or maybe 1 week. But the difficulty was the White House would call at 10 and want an answer at 2 in the afternoon. And that was what posed the difficulty, because the questions often had some substance to them. And it took a real determined effort plus a bit of the seat of the pants instinct to get the work out.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Can you recall some of those tough questions which were mixed issues of law and politics?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I think the side of the things sent to me was generally the legal side of the thing. The question would have political implications. Just to take a hypothetical example: Can the President do such and such under such and such? Now, the question if the President could legally do it, he would go ahead and do it, would be a political question. That was not the kind of thing that was submitted to me. But a lot of the political decisions that the President was considering had legal implications.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. These tough questions were mixed issues of law and politics, and you handled them well, with a sensitivity to the president's objectives and to the practicalities of our situation. So, he does say that they were mixed issues of law and politics.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I think they were mixed issues of law and politics, but I would be surprised at the White House, with all of the political operatives over there, sending to the Office of Legal Counsel something that they wanted a political decision on.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I can understand also, that some of those questions, although they would be mixed questions of law—I can understand that there would be a mix, but with a political, certainly, question implicit, if not explicit.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am sure that was possible.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall some of those questions of that nature?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I recall something involving a question where—I think it was a Governor, I cannot think of his name—a Republican Governor who was pressing to have some sort of a—I cannot even remember what it was now, but it was sent over to us with the idea, is what the Governor asking lawful? Could we do it if we wanted to? But there was never any suggestion that the Office of Legal Counsel simply ought to give a legal opinion because the president wanted to do the thing politically, or because somebody in the White House wanted to do something politically.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Mr. Chairman, I should have asked at the beginning: what is the committee's rule with regard to time?
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Well, we have been giving today 10 minutes a round, but I was giving you extra time because you could not be here for
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. I thank the Chairman. Now, Mr. Justice, did you render your answers orally, or in writing? 372
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Many of them were just over the phone; some of them were formal opinions; some of them may have been letters.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Some were in writing?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Yes; I think we rendered written opinions over my signature, to departments, and things like that.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. NO; now I am talking about the questions, the kind of mixed questions, the mixed issues of law and political questions that Mr. Ehrlichman is addressing his words to here. And I believe you indicated you remember receiving some questions from him. Were those responses normally in writing, or were they oral, or
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I am sure some of them were in writing and some oral.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Let me ask this question: Were there any questions of this nature that you ever refused to answer? Did you ever refuse to answer any of these questions that Mr. Ehrlichman is talking about? I take it it could have been from Mr. Ehrlichman; it could have been from someone else, Mr. John Dean, or whomever may have been there at the time.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot think of any instance, Senator, in which I ever refused to answer a question. I may have said that I could not render a satisfactory opinion in the time given, or, perhaps the opinion I rendered was not the one that the people over there wanted. I cannot imagine myself flatly refusing to answer a question.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall at any time
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Senator Byrd, excuse me just a minute. That is the 5 minute bell. If you want to continue, we will just let you continue, or if you want to stop and vote, and come back. What do you prefer to do? I will accommodate you every way I can.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you suppose you could get them to let this vote run till I get there. Tell them that I have a 100-percent record this year, and a 100 percent last year.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Ask them to hold it?
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Yes; if you would, for just a few minutes. I will not be long. If you would.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Then would you just announce a recess as soon as you finish.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. That is right, and I think it would accommodate Mr. Justice Rehnquist as well. [The Chairman leaves to vote.] Senator BYRD [presiding]. Do you recall, at any time, any question from Mr. Ehrlichman, that you considered to be legally improper for you to answer?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO, I do not; Senator.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. YOU do not. Do you recall whether any of these socalled tough questions, mixed issues of law and politics, which were handled well, quote, "with a sensitivity to the president's objectives and to the practicalities of our situation," close quote—do you recall any questions that dealt with wiretapping, that came to you from Mr. Ehrlichman, or anyone there?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not recall any but it has been a while. I would not say there were not any. 373
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. But you cannot say, flatly, that there were none?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. NO; I cannot.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall any questions, "tough questions, mixed issues of law and politics," which you handled well—according to Mr. Ehrlichman—I am just trying to lay it into the context of his statement—"with a sensitivity to the President's objectives and to the practicalities of our situation," close quote, dealing with leaks, investigations?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Not with leaks or investigations. I was chairman of a committee to look into the classification of materials as secret, and that sort of thing. And whether some part of that work might have dealt with leaks, I am just not sure. It was the same general area, certainly.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall any questions from Mr. Ehrlichman of the nature which he has described, which dealt with surveillance? Or which dealt with CIA activities?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I cannot recall any, Senator, but I cannot say that there were not any.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would questions of that nature, dealing with wiretapping, leaks, investigations, surveillance—would they have come to you in writing, as you recall, or would they have come to you orally? Or do you recall their having come to you one way or the other?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I do not recall their having come to me one way or the other, Senator, but certainly, if they had come, it could have been either oral or written.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Would questions of that nature have been answered in writing? Questions coming from Mr. Ehrlichman at the White House dealing with any of those sensitive—he spoke of a sensitivity to the President's objectives and to the practicalities of our situation. Would questions of the nature of wiretapping, leaks, investigations, surveillance, CIA activities, or any other such sensitive questions—would they have been responded to by you in writing? Or would these have been questions that you would have just picked up the telephone and talked with Mr. Ehrlichman about, or, would he and you have met and discussed them?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. It could have happened in any one of those three ways, Senator.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall, at any time, any such happening?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. I certainly remember meetings to discuss legal questions with Mr. Ehrlichman, and I recall talking to him on the phone, and I am sure I probably sent him letters.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Where would those letters be, in your judgment, now?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, I—excuse me. The original would have been sent to him, and I do not know where that would be, and I presume a copy of the letter would be kept somewhere in the Justice Department files.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. DO you recall anything else—I will not pursue this any further except for this final question. Let me read this one sentence once more. In 1969, when I was Counsel, I sent him—Mr. Ehrlichman is talking and referring to Mr. Rehnquist at this point—"I sent him 374 more than a few tough questions, mixed issues of law and politics, and he handled them well, with a sensitivity to the President's objectives and to the practicalities of our situation." What does he mean by that, by his reference to "a sensitivity to the President's objectives and to the practicalities of our situation"? I know your answer to that would be, "well, I do not know what he may have meant;" but in the context of this statement— that is, a public statement by Mr. Ehrlichman—what, based on your experience with him, and your working with him, and others at the White House at that time—what was he talking about, in your judgment, Mr. Justice?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Obviously, I do not know what he was talking about. I could perhaps give some idea about what I think those words might have meant on this part. I think it was what any good lawyer does for a client. The client does not want to hear no, no, no. If the client's proposal is, has some legal problem with it, the good lawyer tries to figure out what the client's objective is, and find a lawful way to accomplish the objective. And I think perhaps that is what he is referring to. It was not simply a situation of sending back a letter saying, no, your plan is not authorized under the statute. It would be sending back a hypothetical letter, saying: You cannot proceed under the statute as you thought you could, but perhaps if you take a look at another section of the statute and change your plan a little, it might comply with that section of the statute.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Well, perhaps I do have one more question. Is your recollection of the "tough questions" that he writes about here—is your recollection the same as his, that they were mixed issues of law and politics, with a "sensitivity to the President's objectives, and to the practicalities of our situation"? Surely, if Mr. Ehrlichman is telling the truth there, you would have some recollection, it would seem to me, of what he is talking about, when he refers to the "sensitivity to the President's objectives, and to the practicalities of our situation."
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Well, those are very general words, Senator. I have offered one explanation of what I thought he might mean by them. I do not know that I can offer much else.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Very well. Is there anything else that you would like to say in connection with this language which I have read here this afternoon?
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Only the qualification, Senator, that I think I mentioned earlier, that I would not have used the term, in describing the things that the White House, in Mr. Ehrlichman's testimony, as mixed questions of law and politics. I would describe the questions in the White House as that, but it seems to me that it was the legal implications of those questions, and those only, that were sent to us.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. All right. Mr. Justice, I was told by the chairman to announce that the committee would be in recess pending the call of the Chair, and I take it that this will be later this evening.
Staffer
N/A
()
Mr. SHORT. Yes, sir. He should return shortly after the vote. 375
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. All right. Very well. The committee will stand in recess, awaiting the call of the Chair, and I thank you. Did Senator Boschwitz have any questions?
Staffer
N/A
()
Mr. SHORT. NO, Senator.
Senator Robert Carlyle Byrd (WV)
Senator
(D)
Senator BYRD. Very well. Thank you, Mr. Justice. [Recess.]
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The committee will come to order. I believe that completes the questions of the Justice. Are there any more questions by anybody? The distinguished Senator from Nevada. Do you have a statement you want to make, in closing?
Senator Paul Laxalt (NV)
Senator
(R)
Senator LAXALT. Nothing formal, but I would like to make an observation or two. Justice Rehnquist, I think you have done remarkably well during the course of this rather tortuous drill. I do not know of anything that approaches being an inquisition quite like coming before the Judiciary Committee for confirmation purposes. And yet it could have been worse. In my opinion, you have confirmed everything that most of us on this committee felt—that you are very conscientious, extremely confident, extremely competent. I think you are coming out of this hearing even stronger than you came in. So, for those of us who have been supporters of yours for a long while, we believe that the President made an excellent choice for an extremely important position. We commend you and wish you well.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Senator.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Utah.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you, Mr. Chairman. I will not take long- I would like to paraphrase, and add a little bit to what my distinguished friend and colleague Paul Laxalt just said. This is a very difficult process. And in your case, it has been made more difficult than it should have been. 376 But throughout it all, you have demonstrated remarkable restraint, remarkable strength, remarkable stamina. You have shown a great grasp of the law. You have exemplified judicial restraint, and fine judicial temperament. The ABA gave you the highest rating that it could possible give after reviewing 200 of your decisions and after interviewing sixty five practicing lawyers, 180 Federal and State judges, a number of whom were State supreme court justices; fifty deans and law professors, learned in the law, many of whom probably had differences with you and members of the Supreme Court. Your own peers that you presently sit with have called you a splendid choice. I do not know how they could have said it better. After this performance I understand why. Mrs. Rehnquist, I want to pay my compliments to you. You have sat through this whole hearing with aplomb and beauty and support for your husband. All of us have noticed that. And we really appreciate it. A great many people in the last couple of days have had a bone to pick with you. But it is exactly your bones that will make you a great Chief Justice. You have demonstrated that you have a funny bone. You have been willing to laugh and get some humor out of it, even though some of it has been poked at yourself. You have a wishbone because you have high dreams, high aspirations and high ambitions for our country. Last but not least you have a strong backbone. That is a lot more noticeable to some of us who have bad backs, than to others, but that, in the end, is going to get you through this hearing. And, of course, it is going to help you become one of the all-time great Supreme Court Chief Justices. I want to compliment you and tell you that you have my support. We are very proud to support you, and I think the American people will be very proud to have you as a Chief Justice of the U.S. Supreme Court.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Senator Hatch.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. The distinguished Senator from Alabama.
Senator Howell Heflin (AL)
Senator
(D)
Senator HEFLIN. I will pass at this time.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Mr. Justice Rehnquist, I want to commend you for the manner in which you have conducted yourself during this hearing. We have had, since President Reagan has been in, and I have been chairman of this committee, 285 judges to come before this committee. There has been none that has come before this committee that has impressed me more than you. I say that because your decisions have shown, and your life has shown, that you are a man of integrity. A man who is fair and just. A man of great courage. It takes a lot of courage to dissent as much as you did, and you did what you thought was right. And people would not admire you so much if they did not have that faith in you. You have shown great capacity, in writing those decisions, decisions that are incise, clear, and to the point. You have shown great professional knowledge in handling the position of Associate Justice. 377 You have shown judicial temperament, here, on this occasion during the hearing. You have exemplified a high sense of judicial temperament, which is so essential, I think, to a judge. Then, too, you are an ardent supporter of our constitutional form of government, and you believe the Constitution says what it means and it means what it says. I feel the same way. You believe in the separation of powers; you believe in the proper division of powers. Certain powers are delegated to the Union; others are reserved to the States. It is important that we remember that reservation to the States, that power is not delegated as part of the Constitution. You have shown that in your decisions, in your public life. You were well qualified to start with. You served as a law clerk for 1 year; you were in private practice for over 16 years; Assistant Attorney General for 1 year. Then you were nominated to be Associate Justice by President Nixon and you served there 15 years. I don't know of anyone anywhere that could be better qualified to be Chief Justice of the United States than you. We're proud of you and we're proud of your record. We're proud of what you stand for. I just want to tell you that, in my judgment, you will be confirmed. This committee will vote for you and the Senate will vote for you. You deserve that recognition and you'll get it.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Mr. Chairman. Senator HEFLJN. Mr. Chairman, on behalf of the Democratic side here, there could be witnesses that would appear after which Justice Rehnquist himself might like to appear again. I think the reservation should be that, if something arises, Justice Rehnquist himself or the Democrats—or anyone on the other side—could reserve the right for recall.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. Mr. Justice, tomorrow we are hearing some more witnesses. If you want to return after they have testified, we will give you that opportunity. It will be an option that you can exercise yourself.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Mr. Chairman.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Mr. Chairman, if the Justice needs to come back, it should only be on anything that might arise in the future. It should not be on any of the past items we have been over and over again. Let us at least have that understanding.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. YOU are now excused and we thank you for your presence. We thank you for your testimony, and we wish you well.
William H. Rehnquist
Nominee
(R)
Justice REHNQUIST. Thank you, Mr. Chairman.
Senator Strom Thurmond (SC)
Chairman
(R)
The CHAIRMAN. We will be in recess for 10 minutes to get the other witnesses. [The committee was in recess.]