voters, or who had themselves been challenged or who had already acted as witnesses for any other challenged voter. Of course it was a part of this scheme that none of the registered Negro voters would be able to meet these illegal requirements and upon the basis of such pretext, that the registrar would strike their names from the roll of registered voters.

These people in the Ouachita Citizens Council appear to have succeeded either by persuasion or intimidation in procuring the help and cooperation of the election officials of Ouachita Parish.

In April and May of 1956, the registrar and her deputy permitted the officers and members of the citizens council to use the facilities of the office of the registrar to examine the record and to prepare therefrom lists of registered voters of the Negro race. The citizens council was given free run of the registrar's office and was permitted to occupy the office and work therein during periods when the office of the registrar was not officially open to the public.

Between April 16, 1956, and May 22, 1956, the members and officers of the Ouachita Citizens Council filed with the registrar approximately 3,420 documents purporting to be affidavits, but which were not sworn to either before the registrar or deputy registrar of Ouachita Parish as required by law. In each purported affidavit it was alleged that the purported affiant had examined the records on file with the registrar of voters of Ouachita Parish, that the registrant named therein was belieyed to be illegally registered, and that the purported affidavit was made for the purpose of challenging the right of the registrant to remain on the roll of registered voters, and to vote in any elections. These purported affidavits were not prepared and filed in good faith, but were prepared and filed * * *

Mr. MITCHELL. At that time the country was indignant because of such attempts to deny Negroes the right to vote. This information gathered by Mr. Olney was one of the persuasive factors that resulted in the enactment of the 1957 Voting Rights Act. It is ironic that now, 14 years later, the White House is offering for consideration as a Justice of the U.S. Supreme Court a man who is charged with using the same tactics to deprive Negroes of the right to vote in the State of Arizona.

As I understand it, Mr. Rehnquist in his appearance before the committee indicated that he was a part of this operation, and I have from one of our witnesses down in the State of Arizona a statement about how this worked. It didn't come in until last night by telephone conversation and therefore it appears at the end of my testimony. But this was given to me on November 8, 1971, by Mr. Leonard Walker, of 4841 South 22d Street, Phoenix, Ariz., by long distance. He said the practice of challenging voters had caused a large number of complaints in 1960, 1964, and 1968; and it is my recollection that Mr. Rehnquist testified that he was identified with that effort during all of those years.

Mr. Walker said that to his knowledge the challengers were concentrated in the precincts with heavy black registrations. According to his statement, two white persons would station themselves between the line of voters and at a table where voting numbers were issued. The whites would then ask whether the blacks could read parts of the Arizona constitution and whether they had "reregistered." Mr. Walker said that the challengers seemed to pick on the older voters who were not likely to make a fuss. "In other words, they didn't just go out and try to knock the Negroes off the books but they took the weak and the humble who probably wouldn't physically defend themselves for the purpose of trying to knock them off of the books."

The whites would then ask whether the blacks could read parts of the constitution, as I said. Mr. Walker said that in 1968 he ran for the legislature in district 28. He said that he observed two white

men who later said that they were lawyers challenging a number of voters. After some discussion with him, these men left. Mr. Walker said he thought he had better check other precincts. He went to the Bethune precinct which he said was predominantly black. There he found two white men challenging voters, the same two who had been at the other precinct. He said he lost the election by less than 100 votes.

Later he told me a number of persons who had promised him support said that they had tried to vote for him but were challenged and prevented from voting. He said to the best of his knowledge those prevented from voting were eligible to vote.

I call to the committee's attention the fact that while Mr. Rehnquist was testifying he did state that he was supposed to be a settler of disputes in these polling places in 1968, and I would like to ask the question: Here is evidence by an individual who was directly involved over an extended persistent and unfair attempt to interfere with the right to vote. Where was Mr. Rehnquist the arbiter in that exchange of difficulties between the people in that area, and did he approve of what was going on in those precincts?

The NAACP in Arizona alleges that Mr. Rehnquist was active in attempts to deprive Negroes of the right to vote over a period of several years, beginning as early as 1958. It is stated that in one election Mr. Rehnquist appeared at what was called the Granada precinct and engaged in extensive questioning of would-be voters. The Arizona NAACP advises that the questions raised by Mr. Rehnquist himself had to do with the provisions of the Arizona constitution, This is strikingly similar to the kind of questions raised by the citizens of Ouachita Parish, La., in 1957, and indeed by those who have sought to deny Negroes the right to vote through the years.

The NAACP states further that after Mr. Rehnquist had questioned a number of would-be voters, officials at the polling place, which was the Granada precinct, insisted that he leave because he was creating considerable delays in voting. The association further states that Mr. Rehnquist then left the Granada precinct and used the same tactics in a precinct known as the Bethune precinct, which I have referred to earlier.

I have carefully considered the testimony of Mr. Rehnquist which appears on page 148 [of the typewritten transcript] of the hearing record in these hearings. It is interesting to note that he has a clear recollection of his activities which he states were jointly carried on with a Democrat. He has a clear recollection of suspicious or so-called tombstone voting, but he does not seem to have a clear recollection of the circumstances surrounding his personal activity in the years preceding 1968.

Because of the seriousness of this charge, I have again called our officials in Arizona after considering the substance of Mr. Rehnquist's testimony before this committee. Our officials insist that a witness is available who can verify that Mr. Rehnquist was present and did personally interrogate voters at the Granada polling place. I have the name of that individual but I am advised that we are confronted with the usual problem of the poor and humble versus the powerful. The witness is unwilling to come forward and to state to us what he observed.

However, it is well known that the reluctance of witnesses to testify in circumstances of this kind does not release the Government of the United States from its duty to ascertain the facts in other ways. I might say, gentlemen of the committee, if we had been required as a condition of proving that there was discrimination against would-be voters in the South, I am afraid in many instances we would not have been able to prove it because all too often the witnesses were so intimidated that they didn't appear; and in many cases some of them were killed before they had an opportunity to testify.

Accordingly, we recommend that Mr. Rehnquist be recalled and asked these specific questions of whether he was at the Granada and Bethune precincts prior to 1968 and whether he personally asked voters questions about their knowledge of the Arizona constitution or any other matter bearing on their fitness to vote in that State.

The Bethune precinct is mostly black, as I have said before. We respectfully urge that this committee take into consideration the fact that Mr. Rehnquist offers a general assertion that he was involved in disputes over voting qualifications because of reports of tombstone voting. He also states that he was working in company with a member of the Democratic Party. We urge the committee to ask him to name this Democrat and we respectfully urge that this person be questioned also for his version of what was happening.

I happen to know that the individual to whom Mr. Rehnquist referred is now a judge in the State courts of Arizona, and if Mr. Rehnquist is going to make a full disclosure of what happened, it would seem to me he ought to tell this committee the name of that man; and it seems to me it would be wise to have that gentleman come before the committee to give his version because, as I understand it, his version is different from the version that Mr. Rehnquist offers.

According to our NAACP officials in Arizona, a gentleman who is now a U.S. judge in Arizona was instrumental in seeking an FBI investigation of interference with voting during that voting. As I understand it, that is U.S. District Judge Miche. I have not met the gentleman but I understand that he did ask for an FBI investigation because what was going on was so outrageous at that time.

Senator BAYH. What is the name?

Senator HART. Did you say he was a judge from Michigan?

Mr. MITCHELL. No, his name is M-i-c-h-e, but I think it was pronounced Miche to me. In any event, I got this from our Arizona people and he is a U.S. district judge.

Senator BAYH. In Arizona?

Mr. MITCHELL. In Arizona. As I understand it, during the period when all of this interference with voting was going on, he asked for an FBI investigation of it. We respectfully urge that this committee ask the FBI whether it made an investigation and, if so, what were the findings of that investigation.

During the long and dramatic struggle of black citizens for rights and equality of treatment, there have been many frustrations and fears. However, if there has been any fixed star by which they could set a course that would take them to their goal, it has been up until now, and still is, the U.S. Supreme Court.

The Rehnquist nomination raises a grim warning: Through that nomination the foot of racism is placed in the door of the temple of

justice. The Rehnquist record tells us that the hand of the oppressor will be given a chance to write opinions that will seek to turn back the clock of progress. We cannot believe that this is fair to our country in a time when we are trying to build bridges of friendship to other nations of the world.

We hope that the nomination will be rejected because it is an insult to Americans who support civil rights. But if that is not sufficient reason to vote against it, we hope that it will be opposed because this nomination will follow the President and our representatives wherever they go in the civilized world. No matter what they may say about our intentions, the Rehnquist record will speak louder than anything that they can say, and it will be a refutation of any fair words and promises and hopes that may be held out by the President or any other person representing our Government in relationship with other people of the world.

That concludes my statement, Mr. Chairman.

Mr. RAUH. Mr. Chairman.

Senator HART. Mr. RAUH.

Mr. RAUH. May it please the committee, Mr. Mitchell's brilliant testimony just given makes anything I can say an anticlimax, but, nevertheless, there is a volume of things to be said.

I appear this morning, as Mr. Mitchell said, on behalf of and as general counsel of the Leadership Conference on Civil Rights. I also appear on behalf of Americans for Democratic Action.

As Mr. Mitchell has made clear, we strongly oppose the nomination of Mr. Rehnquist. We do not oppose nominations lightly. Although we disagree with Chief Justice Burger on many things, we did not oppose his nomination. Although we disagree with Mr. Justice Blackmun on many things, we did not oppose his nonimation. Although we disagree with Mr. Powell on many things, we have not asked to testify against his nomination.

Before discussing our reasons for opposing Mr. Rehnquist, I should like to take up two preliminary matters to put our opposition in its proper setting.

The first preliminary matter is the standard for Senate review of a Supreme Court nominee. The Constitution provides:

The President shall nominate, and by and with the advice and consent of the Senate, shall appoint judges of the Supreme Court.

The Senate is not a rubber stamp on appointments. President Nixon's letter to Senator Saxbe during the Carswell debate was in error in so suggesting. "Advice" means something more than simply saying yes, and that advice is more important here than on any other type of nomination. What you do on a Supreme Court nomination is vital, not only because of the importance of the position but also because of the length of time that the person serves. The man whom we oppose today will be on the Court to do his damage to our children and our grandchildren.

Charles L. Black, Jr., the Henry R. Luce Professor of Jurisprudence at Yale Law School, put it best in the March 1970 Yale Law Journal. He concluded a brilliant analysis of the precedents with these words:

There is no just reason at all for a senator's not voting in regard to confirmation of a Supreme Court nominee on the basis of a full and unrestricted review not embarrassed by and presumption of the nominee's fitness for the office. In a world

that knows a man's social philosophy shapes his judicial behavior, that philosophy is a factor in his fitness. If it is a philosophy the senator thinks will make a judge whose service on the bench will hurt the country, then the senator can do right only by treating this judgment of his unencumbered by the deference to the President as a satisfactory basis in itself for a negative vote.

Whether the Chair would like the Yale Law Journal article in the record is a matter entirely for his decision. I am not asking to have it put in the record. I don't know whether you care to have these things introduced at this point, Mr. Chairman.

Senator HART. If there is no objection, let it be printed.

Mr. RAUH. Thank you,

sir.

(The Yale Law Journal article follows:)

[From The Yale Law Journal, Volume 79, Number 4, March 1970]

A NOTE ON SENATORIAL CONSIDERATION OF SUPREME COURT NOMINEES

(By Charles L. Black, Jr.)

If a President should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate. Few constitutional questions are then of more moment than the question whether a Senator properly may, or even at some times in duty must, vote against a nominee to that Court, on the ground that the nominee holds views which, when transposed into judicial decisions, are likely, in the Senator's judgment, to be very bad for the country. It is the purpose of this piece to open discussion of this question; I shall make no pretense of exhausting that discussion, for my own researches have not proceeded far enough to enable me to make that pretense.1 I shall, however, open the discussion by taking, strongly, the position that a Senator, voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee's views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court, and that, on the other hand, no Senator is obligated simply to follow the President's lead in this regard, or can rightly discharge his own duty by so doing.

I will open with two prefatory observations.

First, it has been a very long time since anybody who thought about the subject to any effect has been possessed by the illusion that a judges' judicial work is not influenced and forned by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or vague, of where justice lies in respect of the great questions of his time. The loci classici for this insight, now a platitude, are in such writers as Oliver Wendell Holmes, Jr., Felix Frankfurter, and Learned Hand. It would be hard to find a well-regarded modern thinker who asserted the contrary. The things which I contend are both proper and indispensable for a Senator's consideration, if he would fully discharge his duty, are things that have definitely to do with the performance of the judicial function. The factors I contend are for the Senator's weighing are factors that go into composing the quality of a judge. The contention that they may not properly be considered therefore amounts to the contention that some things which make a good or bad judge may be considered-unless the Senator is to consider nothing-while others may not. Secondly, a certain paradox would be involved in a negative answer to the question I have put. For those considerations which I contend are proper for the Senator are considerations which certainly, notoriously, play (and always have played) a large, often a crucial, role in the Preisdent's choice of his nominee; the assertion, therefore, that they should play no part in the Senator's decision amounts to an assertion that the authority that must "advise and consent" to a

1 I shall not provide this discussion with an elaborate footnote apparatus. I am sorry to say that I cannot acknowledge debt, for I am writing from my mind; experience teaches that, when one does this, one unconsciously draws on much reading consciously forgotten; for all such obligations unwittingly incurred I give thanks. I have had the benefit of discussion of many of the points made herein with students at the Yale Law School, of whom I specifically recollect Donald Paulding Irwin; I have also had the benefit of talking to him about the piece after it was written.

HARRIS, THE ADVICE AND CONSENT OF THE SENATE (1953) came to my attention and hands after the present piece had gone to the printer. This excellent and full account of the entire function would doubtless have fleshed out my own thoughts, but I see nothing in the book that would make me alter the position taken here, and I hope a single-shot thesis like the present may be useful.

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