engage in any attempt at learned discourse it would appear for me to be an unequal colloquy, if not unequal contest, and I know precisely what I am going to do when these hearings are closed. I will have a statement, as will other Senators. I commend you on your legal ability, your acumen, your reputation for personal integrity, and your vast knowledge of the law, which has been put to good, compassionate, civic usage, as well as to the pursuit of those occupations which are commonly associated with a good trial lawyer. So I will not take the time of the committee, because by yielding back my time perhaps I can expedite these proceedings and I have already missed the p.m. deadlines and I may have missed the a.m. deadlines, too. Thank you, Mr. Chairman. The CHAIRMAN. Senator Tunney? Senator TUNNEY. Mr. Chairman, I have just one last question. Mr. Powell, I noticed in some of your writings that you addressed yourself to expediting criminal law procedures, and I was wondering if you could tell the committee two things: one, a general question, with perhaps a general answer, on what you feel has to be done to expedite criminal procedures in this country; and, second, more specifically, what you feel that a Supreme Court Justice ought to do to help expedite criminal procedures. Mr. POWELL. I will comment on your second question first. I know from the addresses which I have heard him deliver, as perhaps you do, Chief Justice Burger puts this subject at the top of his list of necessary reforms in the criminal justice system. I really do not know to what extent other Justices of the Court would take part in an organized effort led by the Chief Justice, but I would hope I would be on that team, if I am confirmed, to assist him in that because unless we find more effective ways of expediting the criminal justice system, in particular, the entire system could collapse. I think it is that serious. It is fairly easy to make that sort of generalization. It is not so easy to come up with any answers. Some of the problems are quite intractable, because they are rooted in our Constitution. No one would abandon constitutional rights in the interest of speed, and yet to cite one area in which there must be a better system developed to minimize delays in the ending of criminal causes, I refer to the use of habeas corpus to transfer cases which have gone through the State courts into the Federal system for postconviction review. This was necessary, in my judgment, certainly with respect to most States at a time when criminal procedure and practice in those States had not really caught up with the constitutional safeguards that we are all now familiar with. The American Bar Foundation has initiated a study-there have been a good many, but none yet has produced completely satisfactory results-an empirical study taking a State or two as examples to try to ascertain exactly what is happening with respect to the flood of habeas corpus proceedings. The criminal justice project of the American Bar Association addressed this problem and concluded that the best answer was to try to make the State processes conform to constitutional requirements, and to have records made that these Constitutional requirements were, in fact, met, so that once an accused person had gone through the State system he would have received his constitutional rights; and, second, there would be a record of it so that there would be no occasion for Federal de novo review and starting the whole chain back through the courts. If you would move to the area of appellate practice, I think any lawyer who has been in the appellate courts will recognize that much can be done to speed appellate practice, particularly with respect to the requirements for records. My circuit, the fourth circuit, has been a leader in minimizing the requirements for records. I think a great deal more can be done. I think a great deal more can be done, perhaps, in exercising restraint in the writing of opinions by judges. At the moment I am not addressing myself to the Supreme Court; I am thinking perhaps about all courts and when one looks at the flood of cases that come into one's law library, and the feeling apparently that every judge has to write an opinion at the district court level of course, he must make findings of the fact and conclusions of law, and sometimes a case requires an opinion-but there are many things in this broad area that can and must be done so that the entire system can be expedited. Senator TUNNEY. Thank you very much, Mr. Powell. I heard before you came before this committee, after you were nominated by the President, that you were a man of brilliance, compassion, and imagination, and certainly your testimony here today has demonstrated those qualities. Thank you. Mr. POWELL. I thank you very much, sir. The CHAIRMAN. You made a very fine witness. Senator HART. I want to ask one question that I did not ask Mr. Powell. Mr. Powell, in your writings or speeches in the past, have you taken a position on capital punishment? Mr. POWELL. No, sir. I would say this, the Crime Commission did take a position on it in which I concurred in the recommendations. Senator HART. I have been trying to find out what that recommendation of the Commission was ever since it came out. Mr. POWELL. I could find it if I had the volume of the report. I have not looked at it for a long while. Senator HART. Well, thank you. Mr. Chairman, if that question could be addressed for receipt in writing from Mr. Rehnquist, I would appreciate it. I forgot to ask that question: had he spoken or taken a position on capital punishment. Could we address that question to him? The CHAIRMAN. Why, of course. (The following letter was subsequently received from Mr. Rehnquist:) Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, DEPARTMENT OF JUSTICE, Washington, D.C., November 10, 1971. DEAR MR. CHAIRMAN: I understand that during the questioning of Lewis Powell on November 8, Senator Hart asked him whether he had spoken or taken a position on capital punishment. I also understand that Senator Hart requested that, with your acquiescence, I be asked to supply an answer to his question. A review of my recent speeches and comments, copies of which have been sent to your Committee, indicates that I have not there discussed this subject. Additionally, I cannot recollect that apart from these statements I have ever publicly discussed this question. In the course of my testimony before your Committee last week, Senator Bayh asked if I would object to compiling a list of my former clients for the Committee. Although I do not recall being asked formally by the Committee to forward such a list, the following are representative clients of my former firm in Phoenix as listed in the 1969 edition of Martindale-Hubbell (which, as I recall, would have appeared in print in January, 1969): American District Telegraph Co.; American Optical Co.; Butler Homes, Inc.; Casa Blanca Construction Co.; Sherrill & La Follette; Remington Rand Division of Sperry Rand; Transamerica Title Insurance Co.; Arizona Testing Laboratories; National Insurance Underwriters; Town of Paradise Valley; D. N. & E. Walter Co.; Blake, Moffitt & Towne; Cactus Beverage Distributing Company of Arizona; True Childs Distributing Co.; Valley Vendors Corp.; Herb Stevens, Inc., Lincoln-Mercury; Time Realty, Inc. Sincerely, WILLIAM H. REHNQUIST, Mr. POWELL. You do not wish any further response from me? Mr. POWELL. I was asking Senator Hart whether he wished any response from me. Senator HART. No. Thank you, Mr. Powell. The CHAIRMAN. You are excused. Thank you, sir. Mr. PowELL. I wish to thank the chairman and the members of the committee for this very generous opportunity to appear before you in what to me, at least, has been a very stimulating discussion. I thought all of the questions were relevant and fair, and it has been a great pleasure and privilege to be here. The CHAIRMAN. Thank you, sir. Now, the committee will recess until 10:30 tomorrow morning. We are going to meet in the Judiciary Committee hearing room. We are going to hear the witnesses against the two nominees and also some other witnesses for them. Senator SCOTT. Is that room 2300, Mr. Chairman, for the benefitis that the room number? The CHAIRMAN. It is the Judiciary Committee hearing room. Senator SCOTT. Room 2228. I just say it for the benefit of those who might wish to be there. (Whereupon, at 4:20 p.m., the committee adjourned to reconvene Tuesday, November 9, 1971, at 10:30 a.m.) NOMINATIONS OF WILLIAM H. REHNQUIST AND LEWIS F. POWELL, JR. TUESDAY, NOVEMBER 9, 1971 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to recess, at 10:05 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding. Present: Senators Eastland, McClellan, Hart, Kennedy, Bayh, Burdick, Tunney, Hruska, Fong, Cook, Mathias and Gurney. Also present: John H. Holloman, chief counsel, Francis C. Rosenberger, Peter M. Stockett, Hite McLean and Tom Hart. The CHAIRMAN. Congressman Corman. Is he present? [No response.] The CHAIRMAN. Congressman Conyers. Is he present? The CHAIRMAN. Mr. Biemiller. Is Mr. Biemiller present? Our first witnesses, and I am delighted to welcome them, are two men who have appeared on a number of occasions in connection with judicial nominations and always have made a constructive and to many of us persuasive-contribution. I would suggest that they proceed in such order as seems most appropriate for them. Mr. Rauh and Mr. Mitchell, speaking for the civil rights leadership. TESTIMONY OF CLARENCE MITCHELL, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, AND LEGISLATIVE CHAIRMAN, LEADERSHIP CONFERENCE ON CIVIL RIGHTS; ACCOMPANIED BY JOSEPH L. RAUH, JR., COUNSEL Mr. MITCHELL. Thank you very much, Senator Hart and other members of the committee who are here. I am Clarence Mitchell, director of the Washington Bureau of the National Association for the Advancement of Colored People, and legislative chairman of the Leadership Conference on Civil Rights. I am accompanied by Mr. Joseph L. Rauh, Jr., who is the counsel for the Leadership Conference on Civil Rights. We appear in opposition to the nomination of Mr. William Rehnquist to the U.S. Supreme Court. In making this appearance, we are speaking for the Leadership Conference, and that is an organization of 126 national groups, some in the labor groups, some in religious groups and some in other persuasions who meet together for the purpose of trying to promote civil rights; and we were authorized to speak for the organization. In addition, I am speaking for the National Association for the Advancement of Colored People, and Mr. Rauh is also speaking for the Americans for Democratic Action. We are not taking any position on the nomination of Mr. Lewis F. Powell. The Arizona-Southwest Area of NAACP Conference passed a resolution opposing the nomination of Mr. Rehnquist. The sense of this resolution is set forth in the following four points: (1) In 1964 Mr. Rehnquist appeared as a witness in opposition to a public accommodations ordinance being considered by the Phoenix City Council. His written statement said: The ordinance summarily does away with the historic rights of the owner of a drug store, lunchcounter or theater to choose his own customers. By a wave of the legislative hand, hitherto private businesses are made public facilities which are open to all persons regardless of the owner's wishes. It is, I believe, impossible to justify the sacrifice or even a portion of our historic individual freedom for a purpose such as this. The second point in the NAACP Bill of Particulars is: In 1964, Mr. Rehnquist personally denounced persons who had gathered at the Arizona State Capitol in the interest of civil rights legislation. The third point is when school officials in Phoenix made proposals to end de facto segregation in the high schools, an Arizona newspaper published a letter from Mr. Rehnquist opposing the move. His letter said that those seeking to end de facto segregation in the public schools, and I quote: Assert a claim for special privileges for this minority, the members of which in many cases do not even want the privileges which the social theorists urge be extended to them. The fourth point is that during some of the elections in Phoenix, Mr. Rehnquist was a part of a group of citizens who engaged in campaigns to challenge voters and thereby prevent them from casting their ballots. Most of such voters were the poor and black citizens of Phoenix. In matters of this kind, it is important to look at the total picture of a nominee's past record. During the historic fight against another nominee who was accused of having racist views, there were many who said that he had repudiated such philosophies. However, a distinguished member of this committee made what to me was an unforgettable speech on the floor of the United States Senate in which he said: Do we wish to put on the Court a man to whom we must say to 20 million black Americans. "Take our word for it; he really does not believe it anymore." In that instance, the Senate rejected the nominee. Later activities. of that nominee in a political campaign revealed that the fears of Negroes about his racial views were justified. He had not really changed. |