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known Bill both professionally and personally since he came to Arizona in 1953. He said that Bill has no personal animosity for anyone, no matter of what race or religion, nationality or sex. He commented that Bill is a lawyer through and through and that foremost in Bill's mind is an adherence to the doctrine of stare decisis.

Willard H. Pedrick, Dean of the Arizona State University Law School, supports Bill Rehnquist and said that all of the other members of his faculty likewise support him. In fact, Dean Pedrick informs me that he tried to get Bill Rehnquist to join his faculty several years ago.

In conclusion, Mr. Chairman, I believe that Mr. Rehnquist is admirably qualified by virtue of intellect, temperament, education, training and experience to be confirmed as an Associate Justice of the United States Supreme Court, and I urge your committee to favorably report to the United States Senate in connection therewith. Should you or any of the other distinguished members of your committee have any questions, I will be pleased to try to answer them.

The CHAIRMAN. We are going to recess now until 10:30 Monday morning, at which time Mr. Powell will be the witness.

Senator MATHIAS. Before you recess, can I say 30 seconds' worth? The CHAIRMAN. Yes.

Senator MATHIAS. I welcome our colleague, Senator Tydings, back to the committee, and also a distinguished Marylander who has deserted us and gone to Virginia, Mr. Carlisle Humelsine. I give great weight to their statements and testimony.

(Whereupon at 3:20 p.m. the hearing recessed and will reconvene on Monday, November 8. at 10:30 a.m.)

NOMINATIONS OF WILLIAM H. REHNQUIST

AND LEWIS F. POWELL, JR.

MONDAY, NOVEMBER 8, 1971

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10:30 a.m., in the Caucus Room, Old Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, McClellan, Ervin, Hart, Kennedy, Bayh, Burdick, Tunney, Hruska, Fong, Scott, Thurmond, and Mathias.

Also present: John H. Holloman, chief counsel, Francis C. Rosenberger, Peter M. Stockett, Hite McLean, and Tom Hart.

The CHAIRMAN. The committee will come to order.

Now the Chair cannot tell from those who filed requests to testify whether they are for the nominee, Mr. Powell, or against him. I am placing Mr. Holloman at the end there and I want all those who want to testify against the nominee to give him their names.

If they are not present we can make arrangements.

Mr. Powell, I have read the FBI files on you; it was a full field investigation. I certainly think you are highly qualified and I am going to vote to confirm you.

Senator Ervin?

Senator ERVIN. Mr. Powell, I have known you by reputation for a long time. I know you are reputed to be one of the very finest lawyers in America; and from everything I have heard about you I think that you will do what Chief Justice John Marshall declared in the Marbury v. Madison case is the duty of a Supreme Court Justice, and that is to accept the Constitution as the rule for the Government of our official action as a member of the Court and for that reason it will afford me pleasure to vote for you. I have no reservations.

TESTIMONY OF LEWIS F. POWELL, JR., NOMINEE TO BE ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

Mr. POWELL. Thank you very much, Senator.

The CHAIRMAN. Senator Bayh?

Senator BAYH. Mr. Powell, let me publicly extend my congratulations to you for the confidence that the President has placed in you. I have had a chance to work with you during your tenure as president of the bar association and I have certainly felt that that experience has been a fine one for me.

A

If I may, may I ask you just a general question to start, relative to what you feel the proper role of the Senate is in this experience that we are sharing here.

Do you feel that the Senate can in good conscience, perhaps ought to in good conscience, explore not only the legal competence and the moral integrity of a prospective Justice but should also explore what the individual feels from a philosophical standpoint?

Mr. POWELL. I know of no limits on what the Senate should explore, Senator Bayh.

Senator BAYH. I am sure you are aware of the concern that I have. I am sure as a leader of the bar of many years you probably experienced this concern before I did, as a relative neophyte lawyer, over the importance of maintaining the quality of judges, not only from the standpoint of legal competence but also from the standpoint of public acceptance. May I ask you some questions relative to your own personal financial background?

Mr. PowELL. Of course.

Senator BAYH. You submitted to the chairman, as I recall, a financial statement covering yourself, your wife, and your son. You are familiar with that statement, I trust?

Mr. POWELL. I am.

Senator BAYH. To the best of your knowledge, does this represent an accurate picture of your complete financial holdings?

Mr. POWELL. That statement listed all of the securities which either I, my wife, or my son owned. That statement does not include certain cash which I have; it does not include life insurance; it does not include any tangible personal property and I may say for the benefit of my wife, who is in the room, she claims all of it except my guns. [Laughter.]

Senator BAYH. Do you keep those locked up and away from her? [Laughter.]

Mr. POWELL. That hadn't occurred to me yet.

Senator BAYH. Knowing her and knowing you, I don't suppose that is much of a problem to either one of you.

Let me explore, if I may, some of the legal problems that may be created by this.

First of all, let me compliment you on the success that you have evidenced during your practice by being able to accumulate such a substantial portfolio. I think this speaks well of your business and your legal competence.

It does raise, as you know, certain questions to those of us who are concerned about how a judge-I am not sure immunizes is a good word, but let me use it-immunizes himself from possible temptation. Neither you nor most judges would succumb to such temptation but from the standpoint of appearance and propriety, what are your thoughts as to what you can do or should do or are prepared to do relative to this significant stock portfolio so that it might not give the appearance of impropriety in certain cases that you may be called to sit upon?

Mr. POWELL. Senator Bayh, I agree that that is a troublesome problem. In the relatively limited time available, I have tried to acquaint myself with what has been done by certain other members of the Court. Also, I have read the preliminary draft of the proposed

new canons of judicial ethics and I have had my partners do some research. I would recognize as the binding principle, to which I will attempt to adhere, both to the letter and the spirit, the canons of judicial ethics. I recognize they are not legally binding on the members of the judiciary but I think increasingly they will be so regarded. I am aware also of 28 U.S.C.A. 455, and obviously I would comply with that.

Senator BAYH. 455, of course, uses the specific test of a "substantial interest"?

Mr. PoWELL. That is correct.

Senator BAYH. Would you care to give us your impression, Mr. Powell, of how you feel the canons of ethics interpret substantial interest?

Mr. POWELL. They interpret it very narrowly. The proposed new canons, I think, use the phrase "any interest."

Senator BAYH. And you feel this would be the personal test you would subject yourself to?

Mr. POWELL. Yes. I would say this, to amplify that response, Senator Bayh: Obviously I have some problems. The canon, as I read it, imposes a duty on a judge as promptly as he reasonably can to dispose of securities which are in companies which are likely to come before the Court. Obviously, one would have to do some speculating as to the latter part of that standard. There is a further condition that his obligation is to dispose of them where he can do so without substantial loss.

The principal holding which I have, and which my family also has, including not only my wife and son but my two sisters and a brother, is a holding that came to us through gifts from my father many years ago. We could not sell that holding without very substantial tax adjustments.

Senator BAYH. Could you give us the name?

Mr. POWELL. It is Sperry & Hutchinson.

Senator BAYH. The S. & H.?

Mr. POWELL. The S. & H. Green Stamp Co.; that is right. My father's family furniture manufacturing company was merged into the Sperry & Hutchinson Co. a couple of years ago, so that the family has substantial or comparatively large holdings in that company.

Senator BAYH. How do you insulate those from your holdings or do you feel it is necessary?

Mr. POWELL. I would certainly have to disqualify myself if a case came to Court involving that company.

Senator BAYH. There has been some question-I think I heard you speculate, this speculation at least has been attributed to yourelative to a blind trust for your holdings. Would you care to share your thoughts with the committee ultimately as to how that would meet the problem that confronts you?

Mr. POWELL. I would be happy to do so.

I was first informed this was a technique that might be helpful and that had been used by others. My investigation through lawyers in my office is not yet complete; and yet I would say as of now I think a blind trust would probably be of little assistance. It may be a duty, in fact the new canons suggest there is a duty, on a judge to

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ascertain what he does hold. If that affirmative duty exists, a blind trust would be a bit awkward.

Senator BAYH. I would suppose that a blind trust might work for some of your holdings, perhaps most of them. The one that you referred to where you would have significant tax liability just wouldn't be disposed of by a blind trust-it would be the sort of thing that would be ever present as a reminder?

Mr. POWELL. However you made it, I think, in a situation such as you have described, you would have that problem.

Senator BAYH. You feel that the canons of ethics, 28 U.S.C.A. 455, should be construed in the strictest sense as far as you are concerned? Mr. POWELL. I certainly do.

Senator BAYH. Could you give the committee the benefit of your thoughts relative to the emphasis that the Court as of this date has placed on avoiding the appearance of impropriety? They brought in the appearance of impropriety in the Commonwealth Coatings case as well as specific interests or specific impropriety. The Court in that 1968 case held that a judge had a responsibility to avoid the appearance of impropriety as well as impropriety. I don't ask you to deal with trying to second guess the Court, but to give us your opinion as to-perhaps I should put it this way: Give us your opinion as to the significance that the appearance of impropriety should play as a judge interprets the substantial interest clause and the canons of ethics.

Mr. POWELL. I would agree that the appearance of impropriety certainly merits serious consideration. It is quite important for the public to have confidence in the members of the Court that they have no interest other than to do justice under law.

Senator BAYH. There are a number of other questions-

Mr. POWELL. Senator Bayh, I would just like to add one comment to be sure that I have answered your inquiry completely.

I would endeavor promptly to limit my list of investments so as properly to comply with the letter and spirit of the canons. There are some investments I would certainly wish to retain; I mentioned one of the major ones. There are several others that are involved in corporations which I have represented over many years. If they should be involved in litigation in court-certainly for the foreseeable future-I would not take part in it.

Senator BAYH. Could you broaden the previous discussion we have had in which we have dealt with ownership or interest in a party. The substantial interest test at least in Commonwealth Coatings has been interpreted to mean there must be an interest in the specific party, but the party that has been related to the party which the judge has an interest in. Could you give us your thoughts relative to how you, as a judge, feel you should look at cases that come before in which you have served as counsel?

you

Mr. POWELL. Well, most certainly I would not take any part in those cases, Senator Bayh. There are all sorts of situations that I have thought about and, of course, you have

Senator BAYH. Could you give us a broader thought on this?

Mr. POWELL. Well, how far does one go over the years with respect to old clients of one's firm? I think that raises a host of questions. As you know, having practiced law with distinction yourself, you have all

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