sure of his great regard and reverence for the intent legislative bodies have expressed when enacting statutes, and we can expect his statutory interpretation to reflect this viewpoint.

I would predict that Mr. Rehnquist will become one of the great Justices of the Supreme Court. He is not only accomplished in the practice of the legal profession, but he is also a great human being with a fine sense of humor. He has a great feeling of respect and compassion for his fellow man and of reverence for our American institutions. It is my pleasure and honor to join my colleagues in the Arizona delegation to the Congress of the United States in recommending that this committee consider favorably the confirmation of William Rehnquist.

Mr. Chairman, I am authorized by Congressman Udall and Congressman Steiger to convey to the committee that they also recommend the confirmation.

The CHAIRMAN. Well, you are speaking for the Congressional delegation from Arizona; is that correct?

Mr. RHODES. I am about to ask the chairman for the privilege for my colleagues to file their statements for the record.

The CHAIRMAN. Yes.

Mr. RHODES. The statement you have made as to the recommendation of confirmation is correct, but I would prefer that the individuals have the privilege of filing their own statements so that they can express their ideas in their own words.

The CHAIRMAN. That will be granted. (The statements referred to follow:)

STATEMENT OF REPRESENTATIVE MORRIS K. UDALL

Mr. Chairman, I released on October 27th in Arizona a statement with regard to the nomination of William H. Rehnquist to the Supreme Court. That statement follows:

It's natural to feel some pride when a man from one's state and from one's own professional group is nominated for a position carrying the awesome responsibility of the U.S. Supreme Court.

Thus, the President's selection of William Rehnquist stirs such pride.

At the same time, I must acknowledge that I would not have nominated Mr. Rehnquist had the choice been mine.

I say this though I can attest to his complete integrity and adherence to the highest ethical standards. In addition he has had excellent legal training and experience and possesses a clearly superior legal mind. He certainly meets the demanding professional standards for and would bring intellectual distinction to the Supreme Court.

Having said that, however, I must register my strong disagreement with Mr. Rehnquist's philosophy. I consider many of his publicly expressed views to be misguided and wrong.

Yet I believe that a President has the right to appoint judges of his own political and judicial philosophy and that his nominees should generally be confirmed when they meet ethical and professional standards, as Mr. Rehnquist obviously does.

Furthermore, we have learned that it is risky business to predict the course a lawyer will take when he leaves the political arena and begins a lifetime judicial appointment. And so I can be hopeful that as a Supreme Court justice Mr. Rehnquist will acquire different perspectives.

STATEMENT OF REPRESENTATIVE SAM STEIGER

This is more than the normal, ritual endorsement of an executive appointment by a Member of Congress who resides in the appointee's State.

Bill Rehnquist, by temperament, training and character, will be a magnificent member of the Supreme Court. His intellectual ability, his honor and integrity, and his legal achievements have been attested to by his shrillest critics.

It is incredible to me that this man, whose intellectual stature absolutely precludes bigotry, would be called racist, even by the most partisan practitioner. That Bill Rehnquist would be indifferent, or worse, to civil liberties would be laughable if these charges were not being mouthed by people who should know better. It is his total concern for the much maligned rights of the victims of organized crime that has led to his support of those carefully controlled devices necessary to the apprehension of those engaged in organized crime.

I have known Bill Rehnquist for a decade-both professionally and socially. In most of my dealings with public figures I have found my respect mitigated by tolerance after similar exposure. Not so in the case of Bill Rehnquist. I can say without hesitation that the more I know of him, the greater is my undiluted respect for him.

Mr. RHODES. Thank you.

The CHAIRMAN. Any questions?

The Chair would like to state that there has been a full field FBI investigation of the nominee, and also of Mr. Powell, the other nominee, and that the investigation showed them both clean, high-classed gentlemen. I cannot see any flaw in Mr. Rehnquist, or in Mr. Powell, as a result of the full field investigation.

TESTIMONY OF WILLIAM H. REHNQUIST, NOMINEE TO BE ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

The CHAIRMAN. Mr. Rehnquist, you have an A.V. rating in Martindale's, do you not?

Mr. REHNQUIST. Yes, I did have at the time while I was practicing. The CHAIRMAN. When did you get it?

Mr. REHNQUIST. As I recall, the minimum period in which you could get an A.V. rating at the time was a period of practice of 10 years. And it seems to me I got it in 1966, though I cannot be absolutely positive as to the date. It was very shortly after the expiration of the minimum period.

The CHAIRMAN. Of course, that is the highest rating Martindale's Legal Directory can give a person?

Mr. REHNQUIST. Yes, I believe it is.

The CHAIRMAN. And you got it in 12 years.

Mr. REHNQUIST. That certainly-it was either 11 or 12 years, Mr. Chairman. I am not positive as to the exact date.

The CHAIRMAN. No one can get it under 10 years?

Mr. REHNQUIST. That is my understanding.

The CHAIRMAN. Senator McClellan.

Senator MCCLELLAN. Mr. Chairman, I have a few questions, but I should like to ask the indulgence of the Chair and my colleagues with me while I make a brief statement regarding these nominations, a statement that I want to go into the record in full. Following this statement, I will have some questions premised upon the views that I express here.

A special genius of the American people has been a commitment to the rule of law, not of men, and a special focus of that commitment has always been on the Supreme Court of the United States. This committee, and ultimately the Senate, fulfills, therefore, a sacred duty in advising and consenting to the nominations submitted by the President for the Nation's highest court.

In considering these pending nominations, three issues face this committee, and will later face the Senate:

Do these nominees have personal integrity?

Do they possess professional competency?

Do they have an abiding fidelity to the Constitution?

No Senator has a duty to vote to confirm any nomination forwarded by the President that cannot pass muster under this threefold test. In my judgment, this is what this hearing is all about-not about the so-called "Warren court," or the "Burger court" or even the "Nixon court." Those labels are the stuff of journalism, not constitutional law. Since these nominations were announced, I have examined the public record of each of these men, and I shall undertake to listen through these hearings, without prejudgment. However, I would observe that I have found nothing in the public record of either man that raises any question whatsoever of lack of integrity or competency. I am convinced that any challenge on either of those grounds will utterly fail. Therefore, I shall be concerned about and shall direct my attention and inquiry principally to the question of their fidelity to the Constitution.

I think it can be said that there is room on the U.S. Supreme Court for liberals and conservatives, for Democrats and Republicans, for northerners and southerners, for westerners and easterners, for blacks and whites, and men and women-these and other similar factors neither qualify nor disqualify a nominee. After personal integrity and professional competency, what is most crucial, in my judgment, is the nominee's fidelity to the Constitution-its text, its intention and understanding by its framers, and its development through precedent over the history of our Nation.

There have been a few unfortunate periods in our history when Justices on the Supreme Court have taken too literally Chief Justice Hughes aphorism that the Constitution is what the judges say it is and have attempted to rewrite our Nation's basic charter according to their own personal philosophies, either conservative or liberal. In my opinion, our Nation has just passed and is still passing through such a period.

In recent years a majority of the Supreme Court-no doubt in good faith, but nonetheless in my opinion with mistaken judgment-began to impose new standards on the administration of criminal justice in the United States, on both the Federal and State levels. These decisions have not enforced, as some have suggested, the simple rule that law enforcement agents must "live up to the Constitution" in the administration of justice, a Constitution that establishes known and fundamental standards. If this was all that was involved, no one could legitimately complain. My voice, for one, would not have been raised. Instead, these cases have, to a significant degree, created and imposed on a helpless society new rights for the criminal defendant, and some of these new rights have been carved out of society's due measure of personal safety and protection from crime. Indeed, since 1960, in the criminal justice area alone, the Supreme Court has specifically overruled or explicitly rejected the reasoning of no less than 29 of its own precedents, often by the narrowest of 5-4 margins. The high water mark of this tendency to set aside precedent was in 1967, when the Court overturned no less than 11 prior decisions. Twenty-one of the 29 decisions the Court overruled involved a change in constitutional doctrine accomplished without invoking the prescribed processes for the adoption of a constitutional amendment.

It is significant that 26 of these 29 decisions were handed down in favor of a criminal defendant, usually one conceded to be guilty on the facts. The pursuit by some jurists of abstract individual rights defined by ideology, not law, has thus threatened to alter the nature of the criminal trial from a test of the defendant's guilt or innocence into an inquiry into the propriety of the policeman's conduct.

In my judgment, these decisions, however well intentioned, have come at a most critical juncture of our Nation's history and have had an adverse impact on the administration of justice. Our system of criminal justice, State and Federal, is increasingly being rendered more impotent by such decisions in the face of an ever-rising tide of crime and disorder.

President Johnson's prestigious Crime Commission in 1967 began its monumental study of crime in the United States with these tragic words:

There is much crime in America, more than ever is reported, far more than ever is solved, far too much for the health of the Nation. Every American knows that. Every American is, in a sense, a victim of crime. Violence and theft have not only injured, often irreparably, hundreds of thousands of citizens, but have directly affected everyone. Some people have been impelled to uproot themselves and find new homes. Some have been made afraid to use public streets and parks. Some have come to doubt the worth of a society in which so many people behave so badly. Some have become distrustful of the Government's ability, or even desire, to protect them. Some have lapsed into the attitude that criminal behavior is normal human behavior and consequently have become indifferent to it, or have adopted it as a good way to get ahead in life. Some have become suspicious of those they conceive to be responsible for crime: adolescents or Negroes or drug addicts or college students or demonstrators; policemen who fail to solve crimes; judges who pass lenient sentences or write decisions restricting the activities of the police; parole boards that release prisoners who resume their criminal activities.

Mr. Chairman, I am glad to know that one of the nominees, Mr. Powell, was a member of the President's Commission that voiced these sentiments.

It is for these reasons that I, for one, welcome these two distinguished nominations. Until it has been demonstrated otherwise, I shall assume that their appointment is not an attempt to put a "liberal" or a "conservative" on the Court, but to appoint men of the highest integrity and outstanding competency-men characterized by a deeply held fidelity, not to an abstract ideology of the left or the right, but to the Constitution itself. If we can return fidelity to the Constitution, I believe our society will be both free and safe.

Mr. Chairman, with that preface, I would like to ask the nominee before us this morning some questions.

The CHAIRMAN. Proceed.

Senator MCCLELLAN. Mr. Rehnquist, it is not my intention here to ask you to comment on specific litigation that might be before or might come before the Court. But, I do wish to explore for the record, your understanding, in a general way, of the role of the Court and the men who sit on it as the guardians of our Nation's basic charter.

Would you feel free, as a justice, to take the text of the Constitution particularly in its broad phrases-"due process" * **"unreasonable search and seizure”—and to read into it your personal philosophy, be it liberal or conservative?

Mr. REHNQUIST. I would not, Senator McClellan.

Senator MCCLELLAN. If you felt honestly and deeply, in light of your own personal philosophy, that the intention of the framers of

the Constitution was no longer being achieved through the specific legal devices they deliberately chose in drafting specific clauses, would you feel free, as a justice, to ignore these specific legal devises and give old clauses new readings to achieve a new, and in your judgment beneficial, result?

Mr. REHNQUIST. I do not believe I would, Senator. I think that

Senator MCCLELLAN. Well, this goes to the heart of the matter. Would you be willing, as a judge, with the power you would have on the Court, to disregard the intent of the framers of the Constitution and change it to achieve a result that you thought might be desirable for society?

Mr. REHNQUIST. No; I would not.

Senator MCCLELLAN. If you felt honestly and deeply that a settled course of constitutional doctrine developed by precedent over the years was wrongly decided in terms of your own philosophy of what is good or bad for our society, would you feel free to overrule that precedent and chart a new course of constitutional doctrine? In other words, assume that for years and years the words of the Constitution in a given clause or section had been given a certain interpretation or construction. Now, if you felt that that interpretation or construction, though in keeping with the plain intent of the framers of the Constitution, was not getting the results that you felt were necessary for a modern-day society, would you overrule that decision to bring about a change? Or instead would you feel that the Constitution should be amended by the processes prescribed by it?

Mr. REHNQUIST. I would not overrule a prior decision on the grounds that you suggest.

Senator MCCLELLAN. In your judgment, what sort of respect is due precedent on constitutional questions by the Court? How much should you feel bound by the precedents the Court has established? Mr. REHNQUIST. I feel that great weight should be given to precedent. I think the Supreme Court has said many times that it is perhaps entitled to perhaps somewhat less weight in the field of constitutional law than it is in other areas of the law. But, nonetheless, I believe great weight should be given to it. I think that the fact that the Court was unanimous in handing down a precedent makes a precedent stronger than if a court was 5 to 4 in handing down the precedent. And I think the fact that a precedent has stood for a very long time, or has been reexamined by a succeeding number of judges, gives it added weight.

Senator MCCLELLAN. Should you be confirmed, to what degree would you feel free to implement on the Court your personal view of the role that the Court should play in adjusting the rights of society and the individual in the administration of justice?

Mr. REHNQUIST. None.

Senator MCCLELLAN. Would you feel bound by the restraints of personal or logical consistency to follow the same legal or constitutional judgments on issues you considered either as a student, private practitioner, or in the Office of Legal Counsel?

Mr. REHNQUIST. No; I do not believe I would.

Senator MCCLELLAN. Well, it occurs to me--and I have practiced a little law and observed a good many lawyers-that as a practitioner, you are an advocate for a client as well as an officer of the Court. And I can well see that the views that one might express in a given