Senator MATHIAS. That does happen.

Mr. BIEMILLER. Of course it can happen.

Senator MATHIAS. I am wondering this: You have raised some questions about Mr. Rehnquist's positions which give you these doubts about his ideological foundation. These are largely related to administration positions, administration statements in which he has either been the spokesman for the administration or has participated at some level of either enunciating or perhaps formulating administration policy. In many cases the record is clear. I have shared your concern. Mr. BIEMILLER. Right.

Senator MATHIAS. But is it fair to equate what Mr. Rehnquist has said as an advocate of positions with which you and I may not necessarily agree, and base a judgment of his competency and his fitness purely on our disagreement with the positions of his clients?

Mr. BIEMILLER. Well, I don't see, Senator, why we aren't entitled to say that a man who has expressed the points of view that we have been referring to is not automatically clear of any responsibility for those points of view. I recognize that he, in part, is hiding beyond that lawyer-client relationship, but I don't think that this should be a protection for a person who is being considered for a lifetime position on the U.S. Supreme Court; and, very frankly, as we say in this statement, we are disturbed with the whole thrust of the current administration, which we think is moving toward more executive power.

I am reminded just as another example of a concern I share with my good friend Senator Ervin. Those pocket vetoes of a couple of years ago that were not really, in our opinion, legitimate pocket vetoes, are the kind of things that bother us and if this is the kind of attitude. we are going to be up against, I don't like it.

Now, I also remember that at one time President Nixon said he wasn't ever going to appoint a Cabinet member to the Supreme Court. I know Mr. Rehnquist is not in the Cabinet per se, but he is in what generally is referred to as the Little Cabinet; and I don't see where there is any difference in this situation. A member of the Cabinet or the Little Cabinet is, I think, absolutely responsible and has to stand with the position of that administration, or he resigns or occasionally he gets fired as in the case of Mr. Hickel; but this is a situation where I think we have a proper right to assume that these are the positions. that Mr. Rehnquist has taken.

Senator HRUSKA. Will the Senator yield at that point?
Senator MATHIAS. I will be happy to yield.

Senator HRUSKA. We have witnessed many, many appointments. from either the kitchen cabinet or cabinet or subcabinet or innereabinet-my mind just goes back-and I am sure others with a more retentive memory could probably supplement the list in a hurry. But every one of the following names fall in that category in recent history: Clark, Murphy, Jackson, White, Fortas, Marshall, Goldberg, Byrnes all of them were in the administration or close to the administration and transferred there from immediately to the Supreme Court. If there was any charge of Executive dominance made at that time, I have no recollection of it. It goes back to President Roosevelt's attempt to legislatively pack the Supreme Court. He didn't have to do it because Father Time took care of the problem he was able to do it in another

way.

Now, here are these people-I have named only eight-but all within the last 30 years.

Mr. BIEMILLER. Senator, the only point I was making was that President Nixon said he was not going to appoint any member of his Cabinet to the Supreme Court. I didn't say that members of the Cabinet haven't been appointed to the Supreme Court, but President Nixon did once make that statement. That was the only point I was making.

Senator HRUSKA. Maybe he has been a little more candid than some of his predecessors regarding Supreme Court appointments because they were possessed of even a more firm conviction that it was their mission in life to impress their type of philosophy on the Supreme Court, but they weren't candid enough to say so and President Nixon did say so. He said so before the campaign, during the campaign and since.

Mr. BIEMILLER. Absolutely.

Senator HRUSKA. He said, "There must be some sense of balance; there must be some change in the philosophy on the Court and I intend to try to do something about it." He was probably more candid. Isn't that a fair appraisal?

Mr. BIEMILLER. He has been very candid about it. That is one of the things that bothers us in this whole situation.

Senator HRUSKA. And Meany agreed with the President in that regard because he said that the appointment of these two men is an attempt by President Nixon to appoint to the Supreme Court-I am now paraphrasing him-men who will reflect the type of judicial philosophy that Mr. Nixon believes in and wants to have extended. Isn't that just about what Mr. Meany says?

Mr. BIEMILLER. I have repeated that in the statement this morning. Senator HRUSKA. So you agree with him, too; that makes it almost unanimous, doesn't it?

Mr. BIEMILLER. Yes.

Senator HRUSKA. Thank you very much.
Senator MATHIAS. Thank you.

Mr. BIEMILLER. Thank you.

Senator HART. I know the chairman and all of us want to move on. I think it is not out of order to note that while we generally describe the great constitutional rights as restraint on government-and it is a proper description-there also are a set of affirmative obligations on the part of government. We ought not to forget that as we analyze any nominee.

There is an affirmative obligation to do something about racial imbalance in schools; there is an affirmative obligation to do something about getting service in drugstores; there are a lot of affirmative obligations. Now, when you ask whether a nominee can be fair, you are, admittedly, shopping for a crystal ball nobody can buy. But fairness to one person is the application of affirmative action by government; fairness to another person is to regard that as an intrusion on private rights, whether it is a drugstore or a local school district, and it is critically important that we try to identify which is the tendency of any nominee. That is what this is all about.

Mr. BIEMILLER. We hope you will continue to pursue that investigation.

Senator HRUSKA. If the Senator will yield, I don't think the record should be allowed to stop at a point where there is only a single note,

to wit: Fairness. If my statement would be recalled, it will be: "Will you be fair in deciding this case on the basis of the law, the evidence, and the Constitution?" And if that does not include the Bill of Rights then I am afraid we are not talking about the same document. But fairness has to do with the discarding of certain loyalties and certain strongly held notions by a man in another capacity, whether he is a labor lawyer or whether he is a minority group's lawyer or NAACP lawyer and the ability to shed himself of those proclivities, those tendencies, those predilections, and go on from there in an effort to be fair, but always judging the case and making decisions on the basis of the Constitution, the law, and the facts.

Senator HART. I think it may not be in appropriate to personalize this. It is a question of "will a man be fair" and "will a substantial segment of society believe that he is fair." Let me personalize it. I have not read and have no intention of reading the too many speeches I have made in the time I have been in politics, but I can think of significant and responsible and balanced segments of our society who would think it unlikely that I would be fair. They might not question-they probably would, too-but they might not question my intellectual capacity or my desire to be fair, my desire to read equal protection of the law and due process in a fair fashion. But if I were a pharmaceutical manufacturer, I would wonder whether Hart could be fair because of things I have said, or auto manufacturers, good friends, personally. You know we have all got a track record here and neither the auto manufacturers nor the pharmaceutical industry is deprived or weak. But is there in a man's track record positions or statements or attitudes which would suggest to the weakest among us, those who most desperately need the protection, affirmative and negative, of the Bill of Rights, that that man can be fair no matter how smart or how sincerely he tries; and that is part of our responsibility here and it is all I am suggesting.

Senator MATHIAS. Mr. Biemiller

Senator HART. I should add I think when Clarence Mitchell counsels us about this, an I know how hurtful it is these days for a white man to speak well of a black man, but I think when he voices concern and suggests a likely attitude of that group for whom he speaks, we do have to give it very careful consideration.

Mr. BIEMILLER. We concur.

Senator MATHTAS. Following on the remarks of the Senator from Michigan, Mr. Biemiller, and I think he said what he felt was the glory of the Constitution and that is, the liberty that it guaranteed to every individual, a personal human liberty which is assured to us Americans. The strength of the Constitution prevents changes by government from totally encompassing any individual and binding him as had been the unhappy experience of other people in the past.

But, maintaining the climate of liberty and maintaining the guarantee is, of course, the affirmative duty of government-what this union is all about and what the union is.

Within the guarantees of the Constitution and within this individual liberty there is implied a wide and diverse spectrum of views and I think that is, of course, what's troubling here to this committee whenever it considers the question of an executive nomination. I think this was a very useful discussion for us to have.

Mr. BIEMILLER. I have been very happy to have it.

Thank you again, Mr. Chairman.

The CHAIRMAN. Now there is a representative of the UAW present. Will he come forward and identify yourself for the record, please, sir?

TESTIMONY OF WILLIAM DODDS, POLITICAL ACTION DIRECTOR, UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, ON BEHALF OF LEONARD WOODCOCK, PRESIDENT

Mr. DODDS. Yes, sir. My name is William Dodds. Mr. Woodcock would not be here and asked that I read his testimony.

The CHAIRMAN. What is your connection?

Mr. DODDS. I am the political action director of the United Auto Workers.

The CHAIRMAN. You may proceed.

Mr. DODDS. We appreciate the opportunity to present our views on behalf of the international union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW. We urge the Senate, through its Judiciary Committee, to decline consent to the nomination of William H. Rehnquist to the Supreme Court of the United States.

The UAW represents about a million and a half members and their families. In the crises of recent years, the UAW has had no choice but to respond not only to the direct needs and problems of those whom we directly represent, but also to the challenges we all face in today's world.

We join with others to recognize the pressing need to preserve the Supreme Court as the last refuge and the great hope of the poor, the oppressed, and the powerless. Every nomination to the Court should be scrutinized with great care because of the tremendous potential of the Court for long-range good or evil. It is with these criteria in mind. that we express our opposition and not for any special, parochial interest.

Garry Wills, the syndicated columnist, wrote in his piece printed in the Detroit Free Press of October 29, 1971:

Indeed, he called Rehnquist "The President's lawyer's lawyer," which is a cruel charge when we remember who the President's lawyer is and the strange views he takes of the law.

Ability to function compatibly with this Justice Department might in itself be considered a disqualification for the Court. It means that Rehnquist has worked with officials bringing wild conspiracy charges, using Federal grand juries as fishing expenditions, introducing illegal evidence in Chicago, illegally arresting Leslie Bacon, illegally detaining thousands last May, making flimsy charges against Daniel Berrigan-only to drop them, using bail and parole laws to bring about de facto preventive detention while asking for de jure preventive detention, along with extensions to bugging and tapping.

Quite a record this Department has made, and if Rehnquist is proud of it, he does not belong on the Court. Too close a working relationship with this Department of Justice could make a man permanently insensitive to justice.

We believe, based on our study of Mr. Rehnquist's speeches and other writings, that he possesses neither the breadth of vision nor the humanity which is required of a Supreme Court Justice. Certainly he demonstrated neither of those qualities when he opposed a law forbidding racial discrimination at lunch counters. His opposition to a

public accommodations ordinance in the city of Phoenix, Ariz., in 1964, 7 years after the Court's decision in Brown v. Board of Education, was never publicly disowned until he appeared here before this committee. We believe that men can change their minds and we want where possible to give them the benefit of the doubt, but the UAW is always been leery of eve-of-confirmation hearings conversions.

We express our deep concern over the values and views which seem to have shaped the consistently far-right record of the nominee. We are, however, even more concerned over the way he expresses his views and values. In contrast, Mr. Lewis F. Powell, Jr., a conservative southerner, has commanded much respect from those who do not agree with many of his views, but who find his discussion of legal issues to be thoughful, scholarly, and moderate.

But the Rehnquist speeches, articles, and letters are not marked by the same qualities as those of Mr. Powell. For example, Mr. Rehnquist, in taking issue with a Washington newspaper over its editorial opposition to the Carswell nomination, wrote that what the paper really wanted was a restoration of the Warren Court's majority which he said would have the result of "not merely further expansion of constitutional recognition of civil rights, but further expansion of the constitutional rights of criminal defendants, of pornographers, and of demonstrators." We submit that these hyperbolic and loaded words tell the Senate a good deal more about the one who uttered them than they do about the Warren Court.

In announcing his most recent choices for the Supreme Court, the President emphasized the importance of his role in staffing the Supreme Court. He neglected, however, to mention the crucial role of the Senate with respect to Supreme Court Justices. The Nation has come to expect the Senate to take seriously its advise and consent duty with respect to Court appointments. The President's own words-"Presidents come and go, but the Supreme Court through its decisions goes on forever”— attest to the critical task now before the Senate. We urge the Senate to reserve its consent for those who are qualified an open hearted and who will enrich the Supreme Court.

Even the President now seems to recognize that the Supreme Court of the United States is not a remote institution known only to government, academia, and the bar. As final arbiter of the Constitution, the Court plays a significant role in the life of every American. It is imperative that its members represent not only the best available legal talent but also that they demonstrate allegiance to basic human rights and traditional American values. We must never forget that to protect the rights of all of us, the Court must protect the rights of the least of us.

Whenever a President tries to pack the Court with those who are unqualified, whether by virtue of ability, character, or commitment, the UAW will urge the Senate to perform its constitutional duty and advise the President that it will not consent to any such nomination. It is in that spirit we urge the Senate not to confirm Willian H. Rehnquist.

Senator HART (presiding). Mr. Dodds, thank you. I sense that even those who would disagree with your conclusion would commend you for the balance and moderation of the statement; and yet you speak very clearly to your conclusions.

Senator Kennedy?