Mr. REHNQUIST. My understanding is not sufficiently great factually to be able to answer that.

Senator KENNEDY. Could you tell us a little bit about what your reaction is to taps and bugs and when they ought to be put on?

Mr. REHNQUIST. I think it would be inappropriate for me to do so, Senator. I have acted as a spokesman and advocate in preparing a brief for the Government, and I think it would be inappropriate for me to express a personal view.

Senator KENNEDY. Well, what about the official view of the Department?

Mr. REHNQUIST. As to when a wiretap ought to be used?
Senator KENNEDY. Yes; without a court order.

Mr. REHNQUIST. In cases contained in the reservation of the act of 1968, as defined in the statutory language.

Senator KENNEDY. What about internal security and domestic, not foreign, but domestic, national security cases? Would you give us any insight as to how much is foreign, how much is domestic?

Mr. REHNQUIST. I simply do not know. I do not have any part in the operational end of it.

Senator KENNEDY. And are you unwilling to give us any kind of a feeling about your own concern over the use of wiretapping or bugging or snooping?

Mr. REHNQUIST. I think, having acted as an advocate and spokesman for the Department it would be inappropriate for me to give a personal view.

Senator KENNEDY. You would not tell about just your own concern about this as an invasion of privacy, and the concern that we have to have in our society, in terms of protecting individual rights and liberties? You are not prepared even to make general comments about this?

Mr. REHNQUIST. Well, I can make a general comment.

Senator KENNEDY. Well, will you? I am looking again for the kind of concern you have for the protection of rights and liberties.

Mr. REHNQUIST. Well, I think my comment must be sufficiently general that it is not going to satisfy you. It is, having indicated in my London speech, it is not an appealing type of thing, and it is justified only by exigent circumstances.

Senator KENNEDY. Well, you have, as you say, been willing to talk about it in London, and we are interested to hear you talk about it here today.

Mr. REHNQUIST. I was acting as a spokesman for the Department in London, and I have acted as a spokesman for the Department in other instances and in the preparation of the brief, and for that reason I do not think I should give my personal views.

Senator KENNEDY. Why? Because you feel that you are-why is that?

Mr. REHNQUIST. I do not think that one who has been an advocate, in a particular matter, particularly when it is under submission to the courts, is at all entitled to express a personal view.

Senator KENNEDY. But are we supposed to assume that your comments in London were just the Department's position and they did not present your views; they were not your views?

Mr. REHNQUIST. I was aksed to appear as the hard-line type because, you know, they had four people on the forum

Senator KENNEDY. Do you often get asked to appear as a hard-line type? [Laughter.]

The Chairman. Let us have order.

Mr. REHNQUIST. Everybody from the Justice Department does, I think. And you know, they do not want some either/or type of presentation. They want a justification of the Department position. and that is what I attempted to give them.

Senator KENNEDY. Do you think if you had had concerns about wiretapping, the pervasive use of wiretapping, that they would not have sent you to London?

Mr. REHNQUIST. Well, I will say this much, Senator, that certainly if I had felt from an advocate's point of view that the Department's position was indefensible, or personally obnoxious to me, I would have resigned.

Senator KENNEDY. Let me go to a couple of final areas, Mr. Rehnquist.

In the civil rights area, as I understand, in February 1970, you wrote a letter to the Washington Post about the Carswell case? Mr. REHNQUIST. I did.

Senator KENNEDY. In it you suggested that those who disagreed with Judge Carswell's opinions in civil rights cases, and thought them to be anti-Negro, and anticivil rights, were missing the message of those cases, and you argued that the truth was that anyone that you called a constitutional conservative, or judicial conservative, would have reached the same judgment as Judge Carswell solely on judicial philosophy without racial animus.

Mr. REHNQUIST. You are characterizing my letter, Senator.
Senator KENNEDY. Well, could you?

Mr. REHNQUIST. I do not have it in front of me. I am sure the text is available to everybody.

Senator KENNEDY. I will ask that the whole letter be put in the record, Mr. Chairman.

The CHAIRMAN. It will be admitted. (The letter referred to follows.)

[From the Washington Post, Feb. 14, 1970]

LETTER TO THE EDITOR-A REPLY TO TWO EDITORIALS ON THE CARSWELL NOMINATION

Having read the first two of your proposed three-part editorial on Judge Carswell, and strongly doubting that the concluding part will have an O. Henry type ending, I wish to register my protest on two counts: first, that there are substantial misimpressions created by your editorial, and, second, that your fight against the confirmation of Judge Carswell is being waged under something less than your true colors.

The discussion in the editorial of Feb. 12 of the Supreme Court's decision in the Atlanta case, for example, is seriously misleading. The editorial states that "the Supreme Court heard arguments on Atlanta's plan, then in its fourth year, amid speculation that the Justices thought the plan was too slow. Indeed, in May 1964 the Justices said just that." (Emphasis added.) In fact, the Justices did not sav that the Atlanta grade-a-year plan was too slow. What actually happened was that the Supreme Court remanded the case to the District Court for an evidentiary hearing on a new proposal submitted by the board which had not been passed on by the lower courts. Calhoun v. Latimer, 377 U.S. 263 (1964). By implication, if not by express language, the passage cited earlier says that the Supreme Court had

pronounced grade-a-year plans, such as Atlanta's, unconstitutional across the board. Examination of the court's opinion will show the error of this implication. In the same paragraph of the editorial the following appears:

"That same month the Supreme Court upheld a Fifth Circuit order telling Jacksonville, Florida, to stop assigning teachers to schools on the basis of race.' The thrust of this statement is two-fold: (1) that the Fifth Circuit had held earlier that the assignment of teachers on the basis of race is unconstitutional and to be enjoined in all future cases arising in the circuit; and (2) that the Supreme Court had approved this ruling as a correct statement of constitutional law to be applied nationwide.

Neither of these assertions has the slightest basis in fact. In the case in question, Board of Public Instruction of Duval County, Florida v. Braxton, 326 F. 2d 616 (1964), a two-to-one decision, the issue was not whether school plans must contain a prohibition of teacher assignments on the basis of race. The issue instead was whether a District Judge exceeded his discretion in including such a prohibition. The Fifth Circuit answered this question in the negative and upheld the lower court's order. There is nothing in the appellate court's opinion suggesting that all future court orders in school cases must contain similar prohibitions.

The Supreme Court action in the case, referred to as "upholding" the Fifth Circuit, is a denial of certiorari, 377 U.S. 924. It is elementary that such an order is not an "upholding" of the lower court decision and indeed it represents a refusal by the Supreme Court to review the case on the merits. The reference to the Supreme Court's action as a "ruling" later in the editorial merely aggravates the initial misimpression created.

My criticism of your editorial, however, goes beyond these misimpressions. The Post is apparently dedicated to the notion that a Supreme Court nominee's subscription to a rather detailed catechism of civil rights decisions is the equivalent of subscription to the Nicene Creed for the early Christians-adherence to every word is a prerequisite to confirmation in the one case, just as it was to salvation in the other. Your editorial clearly implies that to the extent the judge falls short of your civil rights standards, he does so because of an anti-Negro, anti-civil rights animus, rather than because of a judicial philosophy which consistently applied would reach a conservative result both in civil rights cases and in other areas of the law. I do not believe that this implication is borne_out.

Judge Carswell in his testimony before the Judiciary Committee stated that he did not believe the Supreme Court was a "continuing Constitutional Convention." Such a philosophy necessarily affects a judge's decision in every area of constitutional adjudication. These areas include civil rights, of course. But they also include, for example, cases involving the right of society to punish criminals, the right of legislatures and local governing bodies to deal with obscenity and pornography, and the right of all levels of government to regulate protest demonstrations.

A reading of Judge Carswell's decisions in the field of criminal law-particularly the notation of his dissent from the denial of a rehearing en banc by the Fifth Circuit of the Agius decision (which broadened the Miranda rule)-indicates that in this area too, he is not as willing as some to see read into the Constitution new rights of criminal defendants which they may assert against society. Thus the extent to which his judicial decisions in civil rights cases fail to measure up to the standards of The Post are traceable to an over-all constitutional conservatism, rather than to any animus directed only at civil rights cases or civil rights litigants. Quite obviously The Post or any other newspaper has a perfect right to urge the Senate not to confirm a judge who has decided cases in the manner in which Judge Carswell has. But in fairness to your reading public, you ought to make it clear that what you are really fighting for is something far broader than just "civil rights," it is the restoration of the Warren Court's liberal majority after the departure of the Chief Justice and Justice Fortas and the inauguration of President Nixon. In fairness you ought to state all of the consequences that your position logically brings in its train: 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. Such a declaration would make up in candor what it lacks in marketability.

WILLIAM H. REHNQUIST,

Assistant Attorney General, Office of Legal Counsel.

Senator KENNEDY. I do not know whether you can read either parts of it, or whether you want to take a look at it?

Mr. REHNQUIST. I will try and answer any question about it. I do have some resistance about accepting a characterizing

Senator KENNEDY. Well, I think that is fair enough. Well, how would you characterize it? Let me ask you that, then, how would you characterize your letter in reply to the editorials on the Carswell nomination?

Mr. REHNQUIST. To the extent I recall the letter-I certainly recall the substance of it-it was basically an argument that those who attacked Judge Carswell's civil rights record were at least in part in error and that in addition, although the attack on his civil rights record might demand a good deal of popular support, the idea that it was solely a question of civil rights, and not also a question of other constitutional doctrines being involved, was a matter that should be more fairly presented.

Senator KENNEDY. Well, it seems to me that it was somewhat stronger than that. Using your own words, you say—

Your editorial clearly implies that to the extent the judge falls short of your civil rights standards, he does so because of an anti-Negro, anti-civil rights animus rather than because of a judicial philosophy which consistently applied would reach a conservative result both in civil rights cases and in other areas of the law. I do not believe that this implication is borne out.

And you say the

Extent to which his judicial decisions in civil rights cases fail to measure up to the standards of The Post are traceable to an over-all constitutional conservatism, rather than to any animus directed only at civil rights cases or civil rights litigants. It seems to me that you are suggesting that Carswell reached those on the basis of a conservative judicial philosophy. Is that not fair enough?

Mr. REHNQUIST. I think the letter has to speak for itself, Senator. I certainly wrote it as an advocate. I think it is a very defensible piece of advocacy.

Senator KENNEDY. Well, is it not fair for us to draw the conclusion that you at least expressed the feeling in this letter that he reached those decisions based upon a conservative judicial philosophy? Can you see where we would reach that conclusion, or are we unfair in reaching it?

Mr. REHNQUIST. The letter is there; it is a matter of record. I wrote it. I think anyone is entitled to draw what fair inferences he feels can be made from it.

Senator KENNEDY. Well, I am asking whether you think that, laying this out in the open, it would be unfair to draw that conclusion? Mr. REHNQUIST. It is a matter of reasoned individual judgment. Senator KENNEDY. Going back to the statement that the President made about the appointment, Mr. Rehnquist, what do you think troubles the President, and why do you think that the President makes the statement about comparing the peace forces and the criminal forces and says that he believes, and I think that I am stating it reasonably accurately, that the public interests have to be better protected than they have in the past, and it is important that he nominate to the Court, as he pledged he would during the last campaign, someone whose judicial philosophy is close to his own?

Why do you think the President believes that your appointment there will move the Court closer to the peace forces and away from the accused?

Mr. REHNQUIST. I think it would be inappropriate for me to comment on what the President's thought processes were, if I knew them. Senator KENNEDY. Well, I suppose he says he believes your judicial philosophy is that you are a judicial conservative, is what it gets down to. Do you feel so?

Mr. REHNQUIST. Well, if by judicial conservative is meant one who will attempt to-

Senator KENNEDY. What do you think he meant by that? The CHAIRMAN. Wait a minute. Let him answer the question. Mr. REHNQUIST. I simply cannot speak for him, Senator. Senator KENNEDY. Well, how do you-why do you not speak for yourself then? Do you think you are a judicial conservative?

Mr. REHNQUIST. Well, let me tell what I think I am, and then you decide whether I am a judicial conservative or not.

My notion would be that one attempts to ascertain a constitutional meaning much as suggested by Senator McClellan's questions earlier, by the use of the language used by the framers, the historical materials available, and the precedents which other Justices of the Supreme Court have decided in cases involving a particular provision.

Senator KENNEDY. If you think that the Court has made, or if we were to believe that the Court in recent times made, extremely important and landmark decisions for the preservation of basic rights and liberties, and that it is the intention, for whatever reason, that the President wants to change that, what can you tell us? What assurances can you tell us that you are not going to, or can you tell us that you are not going to move back on what I would consider the march of progress during the period of the Warren Court?

Mr. REHNQUIST. Could you be any more specific?

Senator KENNEDY. Well, you have made comments, for example, about the Miranda case, have you not, expressing some concerns about that?

Mr. REHNQUIST. I think the comment I made, if you are referring to my University of Arizona speech, was in the Justice Department, like any other litigant, they had a perfect right to request the Court to review, and if it found it appropriate, overrule a precedent.

Senator KENNEDY. Well, could you say in a general way you have reservations about the decisions that were made by the Warren Court? Mr. REHNQUIST. Let me try.

Senator KENNEDY. All right.

Mr. REHNQUIST. To the extent that I believe it proper, and it is a very unenviable task for a nominee, I am sure you realize, to the extent that a decision is not only unanimous at the time it is handed down, but has been repeatedly reaffirmed by a changing group of judges, such as Brown v. Board of Education, it seems to me there is no question but what that is the law of the land, that the one way you try to arrive at the meaning of the Constitution is to try to see what the nine other Justices who took the oath of office thought it meant at the time they were faced with the question.

On the other hand, to the extent that a precedent is not that authoritative in the sense of having stood for a shorter period of time, or having been handed down by a sharply divided court, then it is of less weight as a precedent.