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wondering how you would view the fifth amendment due process requirement as a restraint on Government?

The apparent balance is the interest of the Government against the guarantees of the individual.

Mr. REHNQUIST. Yes, no person shall be deprived of life, liberty, or property without due process of law. I suppose that means at the very least a person to be deprived of his liberty is entitled to a hearing before a fairly constituted tribunal, to be apprised of the charges against him, to have an opportunity to present witnesses on his behalf, to have an opportunity to cross-examine witnesses-again assuming this is a full-fledged criminal trial.

I think if I got more particular than that I would be roaming into areas where I probably ought not to.

Senator MATHIAS. Once again, thinking not of a final definition but only the weighting factors. what do you think is reasonable in the area of search and seizure?

Mr. REHNQUIST. Well, I think the Court has held that the general rule is that a search without a warrant is unreasonable and that ordinarily in order to search, there must be a warrant issued by a neutral magistrate upon a showing of probable cause.

On the other hand, there are recognized exceptions to that doctrine, as the doctrine of exigent circumstances set forth in Kerr against California.

I think the classic example is that of the automobile which is very likely to be moved by the time that the police could go and apply to a magistrate for a search warrant. There I believe the courts have said that because of that necessity, a warrant is not required, and I think that is the sort of balance the courts have tried to strike; that where a warrant is obtainable, the general rule is that a warrant is required, that it is up to the Government to justify those exceptional situations in which a warrant is not required.

Senator MATHIAS. And that is what you would believe?

Mr. REHNQUIST. As general propositions, I have no quarrel with those at all.

Senator MATHIAS. Finally, what about the power of the Government to put into abeyance due process under emergency or extraordinary circumstances?

Mr. REHNQUIST. Well, I commented in response to some questionI don't recall whether it was yours or whether you were present, the doctrine of qualified martial law which has been recognized in many courts, in fact by the Supreme Court of the United States, where the force mounted against the peace authorities in a particular place at a particular time is such that they simply can't cope with it in the normal process of individual arrests, bookings, and that sort of thing, and there it is my understanding that the Government has the authority, for a limited period during the duration of this type of emergency, to arrest people without the usual formalities so long as the period of arrest is kept to the very minimum time required by the emergency.

Senator MATHIAS. Thank you. Thank you again, Mr. Rehnquist. The CHAIRMAN. You are excused.

Senator BAYH. May I make one observation?

I appreciate the fact that as I sat here the last several minutes, Mr. Rehnquist has answered in greater detail, in my judgment, some of the difficult questions that he had appeared to be more reluctant to answer earlier.

I am anxious to have a chance to study them because I think most of this information is the type of information we are looking for, and I personally appreciate that.

The CHAIRMAN. John Bingham Hurlbut, law professor; Martin F. Richman, former law clerk to Chief Justice Warren, former Deputy Assistant Attorney General; Howard Karman, president of the Arizona Bar Association. Will you gentlemen stand.

You are here to testify in behalf of Mr. Rehnquist. We will give you the opportunity to put your statements in the record, please. (The material referred to follows:)

STATEMENT OF JOHN BINGHAM HURLBUT

By way of identifying myself, which I understand is appropriate, I am John Bingham Hurlbut, Jackson Eli Reynolds Professor of Law, Emeritus as of 31 August 1972, Stanford University.

My remarks in support of the nomination of William Rehnquist will be brief, adding perhaps only a small addendum of footnote to the testimony already before the committee. I speak as one of his law school instructors of two dedades ago and more, of my observation of him at that time, of my estimate of him at that time and of my estimate of him at the present time.

Mr. Rehnquist is the product of the Stanford Law School, a member of one of those remarkable and very competent post-war classes, composed largely of veterans, eager to exploit what the law school had to offer in the pursuit of a solid foundation for a professional career in private practice and in public service, and for satisfying those heavy obligations of a lawyer citizen. And on the other side of the platform a strong, demanding, dedicated faculty including such names as Phil Neal (now law dean at Chicago), Sam Thurman (now law dean at Utah), Harold Shepherd (former dean at Ďuke), and Paul Freund (visiting professor from Harvard for a term). In this setting he was graduated first in his class-and as one of my former colleagues at Stanford has put it, “He was the outstanding student of his law school generation."

I can, I think, speak with some authority on William Rehnquist the student. He was a member of my classes in criminal law in his first year and evidence in his third year. For a while he was my research assistant. We had a common interest in intercollegiate athletics as well as the law. So I saw a great deal of him in the classroom, in my office, and in my home.

As a student he was nothing short of brilliant, determined to achieve excellence, and persistent in his expectation of excellence on the other side of the podium. In the give and take of the classroom he was sharp, forthright, courageous, and objective precise and deep in his analysis of difficult problems-insistent that a problem be turned over and over to expose all of its facets before its solutionand always a gentleman.

Since 1952 we have kept in touch with each other. While our association has been more casual and less frequent than I would have liked, I have followed his career enough to be quite sure that the hallmark of excellence which characterized him as a student has characterized his professional life.

In my opinion he is highly qualified to be a Justice of the Supreme Court. He combines great intellectual power with complete intellectual and personal integrity and with wisdom and common sense. And he has that all important capacity for steady continual growth which he demonstrated as a student and has demonstrated in his professional life. In my opinion he has those ingredients which guarantee that he will have a distinguished career as he goes about fullfilling the responsibilities of a Justice of the United States Supreme Court. Thank you for this opportunity to appear before you.

STATEMENT OF MARTIN F. RICHMAN

As a former colleague of Mr. Rehnquist in Government service, I am pleased to testify in support of his confirmation. He is well qualified to be an Associate Justice of the Supreme Court, in my view, on the basis of his strong legal and intellectual abilities, character and judicial outlook.

To put my opinion of him in perspective, it is necessary to digress a moment to tell the Committee a few things about myself. First, near the beginning of my career I served as law clerk to Chief Justice Warren, and thus gained some insight into the processes of the Court and the qualities that are important to the work of the Justices. More recently, I served three years as Deputy Assistant Attorney General in the Office of Legal Counsel, most of that time during Ramsey Clark's tenure as leader of the Justice Department. I am a supporter of the main thrust of the work of the Warren Court, and an admirer of Attorney General Clark's approach to law enforcement and the exercise of governmental power.

When Mr. Rehnquist arrived at Justice a few days prior to the Inauguration, I had already set in motion plans for returning to my firm in New York after completing the transition in the Office of Legal Counsel. As it turned out, the period of transition, during which I served as Mr. Rehnquist's Deputy, continued for about four months.

We had a close, informal relationship, with frequent and often extended discussions of the numerous legal issues, large and small, that made up the business of OLC during those early months of the new Administration. We also talked, more casually, of other matters of political and general interest. We made no bones about our divergent political views, but we shared a common professional approach to the work at hand. In this way, through the daily give-and-take of a candid relationship, my opinions of Mr. Rehnquist's mind and character were formed.

I need not dwell on Mr. Rehnquist's legal abilities. He has an incisive grasp for the key issues in a complex problem, the ability to learn a new subject quickly and an exceptional gift for expressing legal matters clearly and forcefully in writing. Though long out of the academic atmosphere, he has a fine scholarly bent, with an inquiring mind on subjects ranging beyond lega! matters.

In terms of character, he is strong, honorable, straightforward in his actions and positions. I thought he showed exceptional sensitivity and decency in his decisions on administrative and personnel matters within the Office. While these traits do not necessarily bear on legal ability, they speak deeply of the character of a man. Finally, there is judicial outlook, perhaps the most important criterion in your scrutiny of a nominee for the Court. The Committee is well aware that Mr. Rehnquist has a deeply held body of views on the political and social issues of our time. They are, in general, very conservative views. The key question for inquiry here, in my opinion, is whether as a Justice Mr. Rehnquist will bring to the decision of the cases not only his own views, however long held and well thought out, but an open mind. Will he approach each case on the basis of the facts in the record, the briefings by counsel, the arguments of his Brethren in conference, and his best judgment of all the available legal materials? In short, will he act like a Judge? Based on my experience with him, my own answer is in the affirmative. Mr. Rehnquist approaches legal problems thoughtfully, with careful personal study. He is responsive to persuasive argument, and contributes to it by the articulate presentation of his own views. He brings his considerable legal ability to bear when the issues are broad questions of constitutional law, as well as on more technical

matters.

I fully expect that I shall disagree with many of his decisions on closely-contested constitutional issues. But I am confident that his votes will be east on the merits of the cases, that his opinions will illuminate the issues, and that he will make a constructive contribution to the ongoing work of the Court in the development of our law.

STATEMENT OF HOWARD KARMAN, PRESIDENT, ARIZONA STATE BAR ASSOCIATION

Mr. Chairman, my name is Howard H. Karman, President of the Arizona State Bar. I am here at the behest of the Board of Governors of my state bar to support the nomination of a fellow Arizona lawyer, William H. Rehnquist, as an Associate Justice of the Supreme Court of the United States.

Mr. Rehnquist has been a member of that State Bar of Arizona since early in 1954, when he was admitted to practice before the Arizona Supreme Court.

Our Bar is integrated-which is another way of saying that all persons admitted to the practice of law in Arizona courts by our Supreme Court are required by law to be members of the State Bar of Arizona.

As you already know, Mr. Rehnquist engaged in the general practice of law in Phoenix, Arizona from 1954 until 1969 when he came here as one of Mr. Mitchell's top people in the Justice Department.

During his practice in Phoenix, he found time to devote himself to the betterment of the profession in numerous ways.

Phoenix, in addition to being the capital of Arizona, is also the county seat of Maricopa County. The lawyers of Maricopa County have for many years been organized into a voluntary county bar association. Mr. Rehnquist became active in the administrative affairs of the Maricopa County Bar Association when in 1959, he was elected to its Board of Directors, and during the year 1959-60, served as Chairman of both the Program Committee and the Committee on Continuing Legal Education.

During 1961 and 1961 he served as Secretary of the Board of Directors, and in 1961 he was elected vice-president of the Association.

The following year he was accorded the honor of being elected President of the Maricopa County Bar Association, which post he filled with honor. At that time, the county bar association had a membership of approximately 1200.

After completing his year as president, he continued to serve the county bar both as a member of the Board of Directors and as immediate past president. Since 1959 Mr. Rehnquist has been very active in various activities with the State Bar of Arizona:

He was a member of a committee formed to study proposed amendments to the Constitution of the United States during 1959, 1960 and 1961.

From 1959 to 1964 he served on the Committee for Continuing Legal Education to the Bar, and was chairman of that committee for two years during that time. One of the functions of the State Bar of Arizona is to provide continuing legal education, which is accomplished through the committee I have mentioned, and through the Arizona Law Institute, an arm of the organized bar, directed by Charles Marshall Smith, a professor of law at the University of Arizona at Tucson. Mr. Rehnquist was always in great demand as a lecturer at courses and programs presented by the Arizona Law Institute, and, according to many, had an unusual facility for understanding even the most obscure and involved legal problem, and the ability to translate such problems into language clearly understandable by those of us not possessed of similar capacities.

Mr. Eldon Husted, the Executive Director of our bar, has reported to me that attendance at seminars and programs presented by the Institute always increased when Mr. Rehnquist was lecturing, and that Mr. Rehnquist, even though he has not been a resident of our state for the last two years, still leads Arizona lawyers in number of lectures given for, and hours devoted to, continuing legal education to the bar, excepting only the director of the Institute.

Mr. Rehnquist was a member of the Committee on Economics of Law Practice during 1963 and 1964; the Memorial Resolutions Committee for the 1962 Annual Convention of the State Bar of Arizona; a council member of the Trial Practice Section from 1960 to 1964; and a member of the Committee on Uniform Laws fron 1961 to 1988. During a portion of that time, and until he resigned to join the Justice Department in 1939, he served ably as one of Arizona's three Uniform Laws Commissioners.

Basic discipline of the State Bar of Arizona is under the direction of our Supreme Court, and the fact finding agencies in connection with grievances against lawyers in our state are called Local Administrative Committees. Mr. Rehnquist was appointed by the Arizona Supreme Court to membership on one of the three committees operating in this area in Maricopa County, and served in such capacity for five years, and until his resignation to accept his present position.

I have known Bill Rehnquist professionally for a number of years. After his nomination by President Nixon, I talked to a great many people in Arizona, Republicans and Democrats, liberals and conservatives. To a man they had nothing but praise for Bill Rehnquist. I was surprised that no lawyer I spoke with had an unfavorable comment to make, even those who find themselves at the opposite end of the political spectrum.

I talked to the former counsel of the Arizona NAACP, who also happened to be Chairman of the Arizona Democratic State Central Committee. He spoke favorably of Bill's intellect and experience. I also spoke to Robert H. Allen, former Chairman of the Arizona Democratic State Central Committee, who has

known Bill both professionally and personally since he came to Arizona in 1953. He said that Bill has no personal animosity for anyone, no matter of what race or religion, nationality or sex. He commented that Bill is a lawyer through and through and that foremost in Bill's mind is an adherence to the doctrine of stare decisis.

Willard H. Pedrick, Dean of the Arizona State University Law School, supports Bill Rehnquist and said that all of the other members of his faculty likewise support him. In fact, Dean Pedrick informs me that he tried to get Bill Rehnquist to join his faculty several years ago.

In conclusion, Mr. Chairman, I believe that Mr. Rehnquist is admirably qualified by virtue of intellect, temperament, education, training and experience to be confirmed as an Associate Justice of the United States Supreme Court, and I urge your committee to favorably report to the United States Senate in connection therewith. Should you or any of the other distinguished members of your committee have any questions, I will be pleased to try to answer them.

The CHAIRMAN. We are going to recess now until 10:30 Monday morning, at which time Mr. Powell will be the witness.

Senator MATHIAS. Before you recess, can I say 30 seconds' worth? The CHAIRMAN. Yes.

Senator MATHIAS. I welcome our colleague, Senator Tydings, back to the committee, and also a distinguished Marylander who has deserted us and gone to Virginia, Mr. Carlisle Humelsine. I give great weight to their statements and testimony.

(Whereupon at 3:20 p.m. the hearing recessed and will reconvene on Monday, November S. at 10:30 a.m.)

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