Obviously, today Mr. Rehnquist could not be the leader of the Phoenix bar or the Arizona bar because he is not in Phoenix. He has been in Washington serving in the Department of Justice since early 1969.

What I do want to say, however, is that if Mr. Rehnquist were currently practicing in Phoenix and in Arizona, I would say, if asked, that he is a leader of the Arizona bar. There may be others who qualify for that title, but certainly Mr. Rehnquist would be at the top.

The CHAIRMAN. Thank you, sir.

Senator Bayh, any questions?

Senator BAYH. Some of the press may have seen me shaking hands with Mr. Craig up here just before the hearings started, and if he has no reason for me not to disclose what I told him, I will disclose it, that I was faced with trying to find someone whom I had great respect for in the legal community that might be familiar with the thought processes and philosophy of the nominee, and this morning I had said to my staff I would really like to talk to Walter Craig, but I didn't think it was ethical for me to approach him because he now sits as a distinguished member of the Federal judiciary in Arizona.

I had the opportunity to come to know and respect the judge— perhaps I should be more official-Judge Craig, while he was the president of the American Bar Association, and he really is the kind of person whose opinion carries a great deal of weight. I think he would be the first one to suggest that no one Senator, even a friend, should automatically agree with his judgment, but the fact that he has taken the time from his busy court schedule to be here and endorse emphatically this nominee carries a great deal of weight with the Senator from Indiana. It really does.

Judge Craig, you are familiar with the consern that many of us have here, that at least the President has thought that the whole purpose for these nominations is to turn around the Court and thus turn around the series of interpretations that have been put on the laws over the past 20 years, are you not?

Judge CRAIG. Well, generally, yes, Senator.

Senator BAYH. And the concern that I have had, just as one Senator, and I don't think I am alone, is the fact that when we put on the Court a Justice who in one capacity or another prior to his nomination has taken positions that concern us in the area of right of free speechthe chilling effect or the lack of chilling effect, how should wiretaps be controlled, self-discipline is all that is necessary to keep Big Brother government in line, and this type of thing-in varying capacities these statements have been made, and that is what we have been trying to find out; and whether we will be able to reconcile that or not, I don't know, but as I said earlier, the fact that you have the kind of judgment about the nominee that you have means a great deal to me.

Judge CRAIG. Senator Bayh, I must confess in my own judgment that I do not know what the term "judicial conservative" means. I must confess that I am confused in this day and age as to what a liberal is. I am confused as to what a conservative is.

In 1928 when I belonged to the Al Smith for President Club on the Stanford University campus, I think some people thought I was a

radical because that was about as crazy a thing as you could possibly do with Mr. Hoover living on the campus. I didn't consider myself as being a radical. I didn't know what I was. I know I had a lot of fun with it. But I think the way the system of justice operates in the United States, no one man is so important as to singly change the law of the land.

I have not sat on the Supreme Court of the United States. I have sat on appellate courts with other judges, something I will do tomorrow morning if the plane gets me there. I know the way the appellate function works, and I know a little about the decisionmaking processes on those courts and on three-judge courts at the district court level.

I think the discussions around the conference table with each judge contributing his views to the ultimate result is really how the law is made. No one man makes it, as you well know. We worked together on the 25th amendment, that one didn't come out exactly the way you or I would have chosen to do it. The final result was a product of discussions, hard work, rewriting and compromise, and I think generally that is the way the law grows from the judicial side as distinguished from the legislative side.

Senator BAYH. May I, Mr. Chairman, ask Judge Craig, since he is in a unique position to answer some of the allegations that may be made next week, if he would permit me to ask him if he has personal knowledge of some of these things.

I have a resolution of the Southwest Area Conference of the NAACP, a resolution sent to the President of the United States, dated October 23. In it it makes certain allegations relevant to the nominee's insensitivity in the area of human rights.

Let me read from this resolution, and perhaps so it cannot be taken out of context and not thus give the wrong impression I ought to ask unanimous consent that it be put in the record in its entirety.

The CHAIRMAN. Right.

Senator BAYH (reading). "Whereas, Mr. Rehnquist in 1964, while serving in a high official capacity in the Arizona State government openly harassed and intimidated the immediate past president of the NAACP, Rev. George Brooks and members of the NAACP on the steps of the Arizona State Capitol during a peaceful attempt to reach the legislative bodies to present grievances from the minority community."

Judge Craig, do you have any personal information relative to that charge or allegation?

Judge CRAIG. No, I don't. I would say from my knowledge of Mr. Rehnquist that the descriptive adjectives used are unwarranted and probably, Senator, the man who can best answer that one sits to my right, Senator Fannin, who, as I recall, had some official function at that time in the State of Arizona.

Senator BAYH. You have no personal knowledge?

Judge CRAIG. No. I know there was a demonstration. I know that Mr. Rehnquist had some connection with the State government as an adviser to the attorney general or something of that nature.

Senator BAYH. May I go on to another whereas here.

"Whereas Mr. Rehnquist does not fully accept the rights of all citizens to exercise the franchise of voters rights, and our fears are based upon his harassment and intimidation of voters in 1968 during the presidential election in precincts heavily populated by the poor."

I cannot attest to the validity of this. This is one of the whereases. As I mentioned, we are going to be asked about this the first of the week.

Do you have any judgment about that or personal knowledge?

Judge CRAIG. I never heard a bit of it. I don't know upon what that charge is based.

Senator BAYH. May I allude to newspaper clippings from various Arizona newspapers in 1960, 1962, and 1964. Interestingly enough, this whereas relates to 1968. But apparently Mr. Rehnquist was cochairman of the group within his party called the Avowed Security Group Program.

Later, as I think it was mentioned earlier, he was head of a committee of lawyers formed and the assessment has been made, at least some places in the clippings, this was a pattern in which the purpose was to intimidate minority voters from voting.

Do you have any personal information about that type of practice being followed by the nominee?

Judge CRAIG. Well, I know that it was not that purpose. To my knowledge, Senator, and I was pretty active for a long time, I don't know anyplace in Arizona where there was concerted effort to intimidate any voter at any time at any polling place.

Senator BAYH. It seems to imply, Judge, in these newspaper clippings, that at least some of the Republican officials admitted, and this is not taking it out of the King James version to read from these clippings, that letters were sent to selective areas, not countywide, in Maricopa County, and then in the traditional fashion that is used in some of the inner city areas, some in my own State, I am painfully aware of this, that the names on the letters which were returned were axiomatically challenged and a slow-down of the voting took place. You are not familiar with anything like that happening? Judge CRAIG. No sir.

The CHAIRMAN. The testimony was that it didn't happen, wasn't it? Senator BAYH. Sir?

The CHAIRMAN. The testimony was that nothing like that happened. Judge CRAIG. No, I don't know if somebody wrote some letters, Mr. Chairman. I couldn't say categorically whether anyone did or did not. What I said was, to my knowledge, and I am pretty well versed on what happens in Arizona, to my knowledge there was never any concerted effort on the part of anyone to intimidate anybody in a polling place.

Senator BAYH. Do you know anything about the nominee that would lead you to have cause for concern about his insensitivity in the area of human rights if he were sitting on the Supreme Court of the United States?

Judge CRAIG. Senator Bayh, I want to say this in response to that inquiry: I believe this man has a humanity about him and a human. warmth that would make him, if anything, more sensitive to the needs of people with respect to the necessity to improve their lives and their society. I don't think that he would be in any way insensitive to the philosophy of civil rights or the Bill of Rights, or any other rights.

Senator BAYH. You think he is the type of individual that, once he is on the Court, separates himself from the rather strong views that he has expressed while a Government employee?

Judge CRAIG. I think he is a gentleman of outstanding intellectual capacity.

I think every judge worth his salt attempts to do just that. How much creeps in from the back of your head nobody has been able to measure. But I am certain that this man would make every effort, if he did have any personal views, to disassociate those from the judicial decisionmaking process. I am confident of that.

Senator BAYH. Thank you very much.

Judge CRAIG. Yes, sir.

Senator HRUSKA. Judge Craig, in regard to the first "Whereas" of the resolution of the Southwest Area Conference of the NAACP, I should like to read to you an excerpt from yesterday's Washington Post:

When Rehnquist was nominated for the Supreme Court, a former Arizona President for the NAACP, the Reverend George Brooks, charged in 1965, Rehnquist confronted him outside the State Capitol and argued in abusive terms that a civil rights act, later passed by the State legislature, should be opposed.

The Arizona NAACP promptly passed a resolution and the text of the resolution and that "Whereas" was read by the Senator from Indiana a little bit ago.

Now, getting back to the story from the Washington Post:

By the end of last week, Brooks was telling a different story. He now says that the discussion with Rehnquist was calm, "the tone was professional, constitutional, and philosophical," he said. He was neither harassed nor intimidated, Brooks added. But he said that in his opinion, Rehnquist is a philosophical racist.

It is the hope of this Senator that inasmuch as Mr. Brooks retracted one part of his accusation, maybe in due time he will get to that second part.

Do you recall anything of that nature in regard to this incident? Judge CRAIG. No, not at all. I have never known Bill Rehnquist to be racist, and I know him pretty well, sir.

Senator HRUSKA. And you wouldn't have any personal knowledge as to what Mr. Brooks might have said or what he might have repudiated at a later time?

Judge CRAIG. I wouldn't. The only thing I would say is that according to Mr. Brooks' first statement, with respect to the abusive language, it would shock me to believe that my friend, Mr. Rehnquist, would use such language under those circumstances anyway, and, therefore, I would say it was undoubtedly inaccurate.

Mr. Brooks apparently understood that himself and tried to correct the record. I think he is just as wrong on the other point. Senator HRUSKA. Thank you.

The CHAIRMAN. Any further questions?

(No response.)

The CHAIRMAN. The witness is excused.

Judge CRAIG. Thank you very much.

(The NAACP document referred to follows:)

RESOLUTION OF THE SOUTHWEST AREA CONFERENCE OF THE NAACP BRANCHES TO THE PRESIDENT OF THE UNITED STATES AND THE U.S. SENATE

Whereas, Richard Milhaus Nixon, the President of the United States has nominated his personal legal advisor, William H. Rehnquist in a sudden manner without consulting members of the Congress, or the American Bar Association; and

Whereas, Mr. Rehnquist has consistently fought the NAACP and others in the State of Arizona who champion the causes of civil rights and the poor; and Whereas, Mr. Rehnquist in 1964, while serving in a high official capacity in the Arizona State Government openly harassed and intimidated the immediate past president of the NAACP, the Rev. George Brooks and members of the NAACP on the steps of the Arizona State Capitol during a peaceful attempt to reach the legislative bodies to present grievances from the minority community; and

Whereas, Mr. Rehnquist does not fully accept the rights of all citizens to exercise the franchise of voters rights, and our fears are based upon his harassment and intimidation of voters in 1968 during the Presidential election in precincts heavily populated by the poor; and

Whereas, the Maricopa County Branch of the NAACP opposed the naming of Mr. Rehnquist to the position of personal legal advisor to the President; and Whereas, in 1957 Mr. Rehnquist espoused a strong belief with the John Birch Society's position and publicly castigated the U.S. Supreme court and individual members of the court; and

Whereas, Mr. Rehnquist has labelled the youth of Arizona and the nation who peacefully protest the status quo as "barbarians", and

Whereas, as President Nixon's personal legal advisor, Mr. Rehnquist acted as a primary moving force in the nominations of G. Harrold Carswell and Clement Haynsworth; and

Whereas, by his public statements and actions Mr. Rehnquist has shown himself to be a right wing extremist, a rational reactionary, and a sophisticated racist; Now therefore, be it

Resolved, That the Southwest Area Conference of the NAACP calls upon the President of the United States to withdraw the name of William Rehnquist forthwith: Further, be it

Resolved, That the U.S. Senate refuse to give its advice and consent to the nomination: and further, That the President of the United States by his nomination of Mr. Rehnquist will have nominated one who has proven himself to be inimical to the causes of Blacks, Poor, Civil Rights and Civil Liberties.

Senator TUNNEY. Thank you very much.

Mr. Chairman, I realize that the witness has been in the chair a long time, and I don't want to delay the proceedings of this committee. Mr. REHNQUIST. Senator, could I get up and walk around the table once?

Senator TUNNEY. I will join hands and walk with you.

Senator MATHIAS. I can't help but observe that the nominee has just exercised or followed the prescription of Dr. Paul Dudley White who I saw urging that everybody who has been sitting for a long period of time to get up and at least jog in place. It is very good for the mind as well as for the heart. Maybe everyone in the room might want to do that.

The CHAIRMAN. Let us proceed.

Senator TUNNEY. Thank you very much, Mr. Chairman.

As I indicated yesterday, and as we have heard so much today from other Senators, I feel very definitely that philosophy is a factor that should be considered. You have indicated in some of your earlier writings that you feel the same way, and I understand the reasons that you have felt that you could not get into this subject of philosophy, perhaps, as much as you would have desired.

You have indicated that you have an attorney-client relationship and you have indicated you are a nominee to the Supreme Court and you do not want to circumscribe your activity on the Court, judgment values on the Court.

You have also indicated that as a member of the administration, you have a certain privilege as a member of the administration not to divulge those communications that you had with administration personnel in such a way which could harm or violate the responsibilities that you have in relationship to the President.