serve on the National Advisory Committee. That was Lewis Powell's way of assuring that the integrity of the Legal Service Program would be maintained.

But nowhere will you find it recorded that, prior to Sargent Shriver's public reaffirmation in Miami, the summer of 1965 was a long hot summer for Lewis Powell. In this commentary I cannot forbear to mention that I know Mr. Powell to have been the moving figure behind an invitation extended to me by the President of the Junior Bar to address a plenary session. And so far as I have been able to ascertain, I was the first black lawyer, male or female to address a plenary session at the ABA's annual meeting.

Since that time, I have had the pleasure of personal chats with Lewis Powelland have, in my capacity as Director of the Urban Law Institute referred to him indigent clients who needed a lawyer in Richmond and who received representation from his firm.

Those are, in sum, the facts known to me personally, They reveal Powell's involvement in the launching of Legal Service the nurturing of it through the most critical ten months-to be far more extensive than has been generally known or assumed.

But for me they say more than that about the man. They are the pretty nearly the sum total of what I know about him. Yet within this context, they permit me to say that this is a man of principle-who when he pledged his word kept itand who has a peculiar and most tenacious notion that when a government official pledges his word, he too should honor it.

As a black person who has seen many promises made and not kept, it has been all too rare an expereince to find a man who not only holds to such a belief-but who is prepared to back that belief with all the resources and stature and skill at his command.

In the context in which I have known him he has come to symbolize the best that the profession has to offer a man imbued, even driven, by a sense of duty, with a passion for the law as the embodiment of man's ordered quest for dignity. Yet he is a man so curiously shy, so deeply sensitive to the hurt or embarrassment of another, so self-effacing that it is difficult to reconcile the public and the private man-the honors and the acclaim with the gentle, courteous, sensitive spirit that one senses in every conversation, no matter how casual. And it is an unceasing source of wonder to me that so much seems to get done without any sense that the man is ever burdened, hurried, under strain or unable to give you his full and undivided attention.

By way of final observation, I would note that while I support Lewis Powell's nomination-and have limited the scope of my remarks to those facts which I know at first hand-I do not base that support on the fact that Mr. Powell is a supporter of the Legal Services Program. My support is more fundamental— because I would expect that while we agree on some things, we would disagree on others. I would not want to rest my support solely on agreement or disagreement on some particular subject.

My support is based upon the fact that I am drawn inescapably to the sense that Lewis Powell is, above all, humane; that he has a capacity to empathize, to respond to the plight of a single human being to a degree that transcends ideologies or fixed positions. And it is that ultimate capacity to respond with humanity to individualized instances of injustice and hurt that is the best and only guarantee I would take that his consicence and his very soul will wrestle with every case until he can live in peace with a decision that embodies a sense of decency and fair play and common sense. In that court of last resort to which I and my people so frequently must turn as the sole forum in which to petition our government for a redress of grievances, it is that quality of humanity on which we must ultimately pin our hopes in the belief that it is never too much to trust that humanity can be the informing spirit of the law.

Sincerely yours,

The CHAIRMAN. Senator Scott?

JEAN CAMPER CAHN, Director.

Senator SCOTT. Mr. Chairman, I really will not take the time of the committee at any length at all and perhaps for a different reason. I confess to a certain modesty, Mr. Powell, in attempting to develop any legal knowledge of mine that would even thrust itself in a crossexamination of you, because you are an eminent lawyer with the highest qualifications I have known for many years, and were I to

engage in any attempt at learned discourse it would appear for me to be an unequal colloquy, if not unequal contest, and I know precisely what I am going to do when these hearings are closed.

I will have a statement, as will other Senators.

I commend you on your legal ability, your acumen, your reputation for personal integrity, and your vast knowledge of the law, which has been put to good, compassionate, civic usage, as well as to the pursuit of those occupations which are commonly associated with a good trial lawyer. So I will not take the time of the committee, because by yielding back my time perhaps I can expedite these proceedings and I have already missed the p.m. deadlines and I may have missed the a.m. deadlines, too.

Thank you, Mr. Chairman.

The CHAIRMAN. Senator Tunney?

Senator TUNNEY. Mr. Chairman, I have just one last question. Mr. Powell, I noticed in some of your writings that you addressed yourself to expediting criminal law procedures, and I was wondering if you could tell the committee two things: one, a general question, with perhaps a general answer, on what you feel has to be done to expedite criminal procedures in this country; and, second, more specifically, what you feel that a Supreme Court Justice ought to do to help expedite criminal procedures.

Mr. PoWELL. I will comment on your second question first. I know from the addresses which I have heard him deliver, as perhaps you do, Chief Justice Burger puts this subject at the top of his list of necessary reforms in the criminal justice system.

I really do not know to what extent other Justices of the Court would take part in an organized effort led by the Chief Justice, but I would hope I would be on that team, if I am confirmed, to assist him in that because unless we find more effective ways of expediting the criminal justice system, in particular, the entire system could collapse. I think it is that serious.

It is fairly easy to make that sort of generalization. It is not so easy to come up with any answers. Some of the problems are quite intractable, because they are rooted in our Constitution. No one would abandon constitutional rights in the interest of speed, and yet to cite one area in which there must be a better system developed to minimize delays in the ending of criminal causes, I refer to the use of habeas corpus to transfer cases which have gone through the State courts into the Federal system for postconviction review. This was necessary, in my judgment, certainly with respect to most States at a time when criminal procedure and practice in those States had not really caught up with the constitutional safeguards that we are all now familiar with.

The American Bar Foundation has initiated a study-there have been a good many, but none yet has produced completely satisfactory results an empirical study taking a State or two as examples to try to ascertain exactly what is happening with respect to the flood of habeas corpus proceedings. The criminal justice project of the American Bar Association addressed this problem and concluded that the best answer was to try to make the State processes conform to constitutional requirements, and to have records made that these constitutional requirements were, in fact, met, so that once an accused

person had gone through the State system he would have received his constitutional rights; and, second, there would be a record of it. so that there would be no occasion for Federal de novo review and starting the whole chain back through the courts.

If you would move to the area of appellate practice, I think any lawyer who has been in the appellate courts will recognize that much can be done to speed appellate practice, particularly with respect to the requirements for records.

My circuit, the fourth circuit, has been a leader in minimizing the requirements for records. I think a great deal more can be done. I think a great deal more can be done, perhaps, in exercising restraint in the writing of opinions by judges. At the moment I am not addressing myself to the Supreme Court; I am thinking perhaps about all courts and when one looks at the flood of cases that come into one's law library, and the feeling apparently that every judge has to write an opinion at the district court level of course, he must make findings of the fact and conclusions of law, and sometimes a case requires an opinion-but there are many things in this broad area that can and must be done so that the entire system can be expedited. Senator TUNNEY. Thank you very much, Mr. Powell.

I heard before you came before this committee, after you were nominated by the President, that you were a man of brilliance, compassion, and imagination, and certainly your testimony here today has demonstrated those qualities.

Thank you.

Mr. POWELL. I thank you very much, sir.

The CHAIRMAN. You made a very fine witness.

Senator HART. I want to ask one question that I did not ask Mr. Powell.

Mr. Powell, in your writings or speeches in the past, have you taken a position on capital punishment?

Mr. POWELL. No, sir. I would say this, the Crime Commission did take a position on it in which I concurred in the recommendations. Senator HART. I have been trying to find out what that recommendation of the Commission was ever since it came out.

Mr. POWELL. I could find it if I had the volume of the report. I have not looked at it for a long while.

Senator HART. Well, thank you. Mr. Chairman, if that question could be addressed for receipt in writing from Mr. Rehnquist, I would appreciate it. I forgot to ask that question: had he spoken or taken a position on capital punishment. Could we address that question to him?

The CHAIRMAN. Why, of course.

(The following letter was subsequently received from Mr. Rehnquist:)

Hon. JAMES O. EASTLAND,

Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.

DEPARTMENT OF JUSTICE, Washington, D.C., November 10, 1971.

DEAR MR. CHAIRMAN: I understand that during the questioning of Lewis Powell on November 8, Senator Hart asked him whether he had spoken or taken a position on capital punishment. I also understand that Senator Hart requested that, with your acquiescence, I be asked to supply an answer to his question.

A review of my recent speeches and comments, copies of which have been sent to your Committee, indicates that I have not there discussed this subject. Additionally, I cannot recollect that apart from these statements I have ever publicly discussed this question.

In the course of my testimony before your Committee last week, Senator Bayh asked if I would object to compiling a list of my former clients for the Committee. Although I do not recall being asked formally by the Committee to forward such a list, the following are representative clients of my former firm in Phoenix as listed in the 1969 edition of Martindale-Hubbell (which, as I recall, would have appeared in print in January, 1969): American District Telegraph Co.; American Optical Co.; Butler Homes, Inc.; Casa Blanca Construction Co.; Sherrill & LaFollette; Remington Rand Division of Sperry Rand; Transamerica Title Insurance Co.; Arizona Testing Laboratories; National Insurance Underwriters; Town of Paradise Valley; D. N. & E. Walter Co.; Blake, Moffitt & Towne; Cactus Beverage Distributing Company of Arizona; True Childs Distributing Co.; Valley Vendors Corp.; Herb Stevens, Inc., Lincoln-Mercury; Time Realty, Inc.

Sincerely,

WILLIAM H. REHNQUIST,
Assistant Attorney General,
Office of Legal Counsel.

Mr. POWELL. You do not wish any further response from me?
The CHAIRMAN. Sir?

Mr. POWELL. I was asking Senator Hart whether he wished any response from me.

Senator HART. No. Thank you, Mr. Powell.

The CHAIRMAN. You are excused.

Thank you, sir.

Mr. PowELL. I wish to thank the chairman and the members of the committee for this very generous opportunity to appear before you in what to me, at least, has been a very stimulating discussion. I thought all of the questions were relevant and fair, and it has been a great pleasure and privilege to be here.

The CHAIRMAN. Thank you, sir.

Now, the committee will recess until 10:30 tomorrow morning. We are going to meet in the Judiciary Committee hearing room. We are going to hear the witnesses against the two nominees and also some other witnesses for them.

Senator SCOTT. Is that room 2300, Mr. Chairman, for the benefitis that the room number?

The CHAIRMAN. It is the Judiciary Committee hearing room.

Senator SCOTT. Room 2228. I just say it for the benefit of those who might wish to be there.

(Whereupon, at 4:20 p.m., the committee adjourned to reconvene Tuesday, November 9, 1971, at 10:30 a.m.)

NOMINATIONS OF WILLIAM H. REHNQUIST AND

LEWIS F. POWELL, JR.

TUESDAY, NOVEMBER 9, 1971

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10:05 a.m., in room 2228, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, McClellan, Hart, Kennedy, Bayh, Burdick, Tunney, Hruska, Fong, Cook, Mathias and Gurney.

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

The CHAIRMAN. Congressman Corman. Is he present?

[No response.]

The CHAIRMAN. Congressman Conyers. Is he present?
[No response.]

The CHAIRMAN. Mr. Biemiller. Is Mr. Biemiller present?
Mr. MITCHELL. He said he would be here, Mr. Chairman.
The CHAIRMAN. Do you want to testify? Come on.
Mr. MITCHELL. If it is all right with you. [Laughter.]
Senator Hart (presiding). The committee will be in order.

Our first witnesses, and I am delighted to welcome them, are two men who have appeared on a number of occasions in connection with judicial nominations and always have made a constructive and to many of us persuasive-contribution.

I would suggest that they proceed in such order as seems most appropriate for them.

Mr. Rauh and Mr. Mitchell, speaking for the civil rights leadership.

TESTIMONY OF CLARENCE MITCHELL, DIRECTOR, WASHINGTON BUREAU, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, AND LEGISLATIVE CHAIRMAN, LEADERSHIP CONFERENCE ON CIVIL RIGHTS; ACCOMPANIED BY JOSEPH L. RAUH, JR., COUNSEL

Mr. MITCHELL. Thank you very much, Senator Hart and other members of the committee who are here.

I am Clarence Mitchell, director of the Washington Bureau of the National Association for the Advancement of Colored People, and legislative chairman of the Leadership Conference on Civil Rights. I am accompanied by Mr. Joseph L. Rauh, Jr., who is the counsel for the Leadership Conference on Civil Rights.