not believe that there is much hope of getting away from the immutable fact that there is a limit beyond which no nominee can in good conscience go in expressing opinions either personal or legal in character at this particular juncture.

As to the waiver, I don't see how you can get a waiver. There is no particular way it can be received nor issued.

Mr. REHNQUIST. Certainly past nominations have generally taken that position, and I think their refusals to answer that sort of question were probably justified.

Senator HRUSKA. They certainly have, and I think upon the reading of any of the prior hearings, that same decision, that same answer, will be found. It has always been accepted by the committee and also by the Senate.

I think you have been more liberal than some of the nominees before us in the extent that you have answered many questions. I would have asserted the answer, the historical answer, much sooner than you have done.

Thank you, Senator Bayh, for yielding to me.

Senator BAYH. Well, I appreciate getting the comments of my colleague from Nebraska. I am sure he is aware as a distinguished attorney that there is ample precedent. One has to look no farther than the American Bar Association Code of Professional Responsibilities, Code of Ethics, under canon 4, to find that the lawyer-client relationship can be waived by the client.

Now, perhaps the client in this circumstance would have no reason to waive it. I feel that this nominee has been struggling as we have been struggling to reconcile the differences which exist in our responsibility. They are not the same and I don't suggest that they are. I sat way down there when we had that particular nominee here and I think the Senator from Nebraska is absolutely right; that is exactly what happened. And I think all of us have to recognize that many times it all depends on whose ox is getting gored and we don't always face each problem with consistency as much as we would like to; we are bound up in our own ideas.

But I do not recall in my public life-that has not been nearly as long as my distinguished friend from Nebraska's-a President of the United States who has ever come on television and has made as the second prerequisite for his nominee, the second consideration, his judicial philosophy, and then to be confronted with that same nominee, a very distinguished legal scholar, who says himself:

Specifically, until the Senate restores its practice of thoroughly informing itself on the judicial philosophy of a Supreme Court nominee before voting to confirm him, it will have a hard time convincing doubters that it could make effective use of any additional part in the selection process.

Now, there are the horns of the dilemma on which we are impaled. Senator HRUSKA. If the Senator will yield for comment on that point, I don't think there are any horns at all nor any dilemma. The CHAIRMAN. And no one's ox is being gored.

Senator HRUSKA. The fact is, and the Senator has as good a knowledge of that history as I, that Franklin Delano Roosevelt after he failed legislatively to pack the Court, turned to a deliberate course of appointing liberal judges and he chose them for that and he called them that. Let's not kid ourselves; that is why they were chosen.

And I sat here since 1954, sometimes in semiagony, sometimes in frustration, also sometimes in despair, wondering when that line of judges of liberal philosophy would ever run out and we would come to another kind of philosophy which would lend balance to the utterances and the statements of the Court. And I believe it is about time now that this committee and the Senate and the country take advantage of the happy circumstance that another type of nominee with another philosophy is being considered. It is not true that it is for the first time that that second consideration is being asserted for the appointment of members of the Supreme Court. That is not so. History disproves it; and it is a little late to try to rewrite that history. The CHAIRMAN. Well, let's proceed.

Senator BAYH. If I might just make one other observation, Mr. Chairman, I think that there probably are some distinguished judges on that Court that have been appointed in the interim described by the Senator from Nebraska who would shudder a bit to be described as part of the liberal bent. I will not name them but I think the record will show who they are.

I want to make clear the distinction between what I am concerned about and what-maybe there isn't a distinction, but it seems to me there is one a prospective nominee should refuse, has, and undoubtedly will refuse to comment on certain areas because this might abridge his sitting as a judge in cases that come before him. This is

one area.

Together we can go through the transcript and enumerate those areas that have confronted Mr. Rehnquist with a problem. I am not at all concerned about those but we can also go through that transcript and we can find a number of areas, a number of questions which I will not repeat at this time, where that was not the basis, where I had the feeling that here was a man who was willing and wanted to give us his thoughts, but he could not do so because he felt he was violating the trust he had with the Attorney General or speaking as a Justice Department spokesman. I see no reason why that should not be lifted. I don't see how it is going to hurt the President or the Attorney General and it is surely going to help the Senate in its consideration.

I am not going to hold my breath until we get that waiver.
Senator HRUSKA. Or until it is asked, either.

Senator BAYH. Oh, perhaps I should hold it until it is asked. But that will be probably an easier time frame than receiving a reply. Senator HRUSKA. The Senator does not recall a time when any nominee has been before this committee or any of its predecessor committees and when the nominee said "I feel it is improper; it is an improper question which is directed to me and therefore I respectfully regret that I cannot answer it," that that assertion on his part has not been respected by the committee? The validity of that statement is open for examination of previous transcripts by any of the members of this committee or anyone else. The refusal is for the nominee to assert and when it has been asserted, whoever the nominee has been, it has always been respectfully abided by.

Senator BAYH. Then may I ask my colleague from Nebraska if he would help resolve the problem in my mind where the nominee is on record as having said, in support of the administration, speaking

as a Justice Department spokesman, that he favors certain positions that I feel are not in the best interests of the country?

Now, I am unable to separate the nominee from the philosophy that he espoused wearing that hat. Am I obligated then to vote against him?

Senator HRUSKA. Well, in the first place, we have always recognized that a man's status changes when he becomes a nominee. Prior writings will speak for themselves but if he speaks on that same subject in terms of either expressing an opinion on a legal or constitutional proposition, or his present convictions on a proposition of that kind, then he runs into trouble and possible unfairness to his future. colleagues if he would have to withdraw from a case. You cannot separate that.

We have always had that and we can examine the writings. We have Mr. Rehnquist's prior record and we will have the opinions of witnesses that will come here; they will give us many interpretations of his philosophy. I can hardly wait until next Tuesday when those explanations start. A witness has a right to be wrong, too.

And so the position that a man assumes when he becomes a nominee is different; it immediately changes and it should be governed by the new circumstances.

Senator BAYH. Well, I want to compliment the nominee again as I have in the past.

You say he has a right to be wrong.

Senator HRUSKA. Any witness has a right to be wrong; any witness. Senator BAYH. On occasion even a U.S. Senator might be.

Senator HRUSKA. I have known of some times when that has happened also. [Laughter.]

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

Senator MATHIAS. Would the Senator yield just for one brief observation?

Senator BAYH. If you will let me just read one paragraph from the Congressional Record, I will yield and not force further patience on my colleague or the witness who has been very patient.

I just want to remind my friend from Nebraska that there are some rather distinguished authorities for the line of questioning we were following here which go as follows:

"When we are passing on a judge, we not only ought to know whether he is a good lawyer, not only whether he is honest, and I admit that this nominee possesses both of these qualifications"-as I do about our present nominee "but we ought to know how he approaches the great questions of human liberty." A gentleman by the name of George Norris, distinguished Senator from Nebraska, made that observation in a similar situation.

Senator HRUSKA. It is still true; still true.

Senator BAYH. All right. I yield.

Senator MATHIAS. Just a very brief observation: I join with my colleague from Nebraska, the Senator from Nebraska, in his feeling. I think that Mr. Rehnquist deserves a considerable degree of understanding and admiration because he has observed the important rules which govern the profession of law.

Perhaps what the Senator from Indiana seeks to do and which I seek to do and other members of the committee think can be done, is limited by our ingenuity and not by the subject matter. We can get at what we need to get at without applying to the President for any waiver. I agree with the Senator from Nebraska.

The CHAIRMAN. Judge Craig.

Identify yourself for the record.

STATEMENT OF HON. WALTER EARLY CRAIG, A U.S. DISTRICT JUDGE FOR THE DISTRICT OF ARIZONA

Judge CRAIG. Mr. Chairman, I am Walter Early Craig. I am currently U.S. district judge for the District of Arizona. I am a former president of the American Bar Association.

I am here, gentlemen of the committee, in support of the nomination of Mr. William H. Rehnquist to be an Associate Justice of the Supreme Court. In passing I might say that I would be less than honest if I did not also say that I endorse wholeheartedly the nomination of Mr. Lewis Powell. I have known him for 25 years. Mr. Powell has a number of witnesses, I understand, to come before this committee, and I endorse everything they say that is good about him. I know nothing but complimentary things about him.

I can say the same for Mr. Rehnquist. I have known Mr. Rehnquist since his admission to practice law in Arizona, both in a professional capacity and since I have been on the bench, which I ascended in 1964.

Mr. Rehnquist's academic achievements are already a matter of record. They are remarkable. The only reason I mention those high achievements is because it relates to his qualifications as a lawyer. In my experience, Mr. Rehnquist's professional skills and ability are outstanding.

I have prepared and submitted to you a written statement with respect to my observations and concern with Mr. Rehnquist's appointment. I am certain that in my experience, throughout the United States, and my acquaintanceship and knowledge of members of the profession, that I could find no one that I would recommend more highly than Mr. Rehnquist to occupy the office of Associate Justice of the Supreme Court of the United States.

He has demonstrated, I think, his patience and judicial temperament in appearing before this body. I have observed it for 19 years, so it does not come as a surprise to me that he has handled himself so magnificently here. I have seen only a relatively few minutes of his testimony, but I have kept in some touch with the progress of the hearings.

In his appearances before my court, Mr. Rehnquist conducted himself not only with outstanding professional skills but with dignity, intelligence, and integrity. I think he has conducted his life that way so long as I have known him.

I do not know, Mr. Chairman, if you care for anything further, but I might comment in one additional respect. I read someplace or heard something about Mr. Rehnquist probably not being the leader of the Phoenix bar or of the Arizona bar. If there is a "leader" of the Phoenix bar or the Arizona bar, I do not know who it is, with the possible exception that it may be my 97-year-old father who is still going to his office.

Obviously, today Mr. Rehnquist could not be the leader of the Phoenix bar or the Arizona bar because he is not in Phoenix. He has been in Washington serving in the Department of Justice since early 1969.

What I do want to say, however, is that if Mr. Rehnquist were currently practicing in Phoenix and in Arizona, I would say, if asked, that he is a leader of the Arizona bar. There may be others who qualify for that title, but certainly Mr. Rehnquist would be at the top.

The CHAIRMAN. Thank you, sir.

Senator Bayh, any questions?

Senator BAYH. Some of the press may have seen me shaking hands with Mr. Craig up here just before the hearings started, and if he has no reason for me not to disclose what I told him, I will disclose it, that I was faced with trying to find someone whom I had great respect for in the legal community that might be familiar with the thought processes and philosophy of the nominee, and this morning I had said to my staff I would really like to talk to Walter Craig, but I didn't think it was ethical for me to approach him because he now sits as a distinguished member of the Federal judiciary in Arizona.

I had the opportunity to come to know and respect the judgeperhaps I should be more official-Judge Craig, while he was the president of the American Bar Association, and he really is the kind of person whose opinion carries a great deal of weight. I think he would be the first one to suggest that no one Senator, even a friend, should automatically agree with his judgment, but the fact that he has taken the time from his busy court schedule to be here and endorse emphatically this nominee carries a great deal of weight with the Senator from Indiana. It really does.

Judge Craig, you are familiar with the consern that many of us have here, that at least the President has thought that the whole purpose for these nominations is to turn around the Court and thus turn around the series of interpretations that have been put on the laws over the past 20 years, are you not?

Judge CRAIG. Well, generally, yes, Senator.

Senator BAYH. And the concern that I have had, just as one Senator, and I don't think I am alone, is the fact that when we put on the Court a Justice who in one capacity or another prior to his nomination has taken positions that concern us in the area of right of free speechthe chilling effect or the lack of chilling effect, how should wiretaps be controlled, self-discipline is all that is necessary to keep Big Brother government in line, and this type of thing in varying capacities these statements have been made, and that is what we have been trying to find out; and whether we will be able to reconcile that or not, I don't know, but as I said earlier, the fact that you have the kind of judgment about the nominee that you have means a great deal to me.

Judge CRAIG. Senator Bayh, I must confess in my own judgment that I do not know what the term "judicial conservative" means. I must confess that I am confused in this day and age as to what a liberal is. I am confused as to what a conservative is.

In 1928 when I belonged to the Al Smith for President Club on the Stanford University campus, I think some people thought I was a