Again I am very honored to come before you. I bring with me my dear friend from Missouri, Congressman William Clay; and to my right, I bring a distinguished attorney from Virginia, Henry L. Marsh III.

I will say more about him as we proceed.

I am here, Mr. Chairman, under the authority of the black congressional caucus which, as you probably know, is composed of the Honorable Shirley Chisholm, of New York; my colleague, William Clay, of Missouri; Congressman Charles Diggs, of Michigan; Congressman Robert Nix, of Pennsylvania; Congressman Augustus Hawkins, of California; Congressman Louis Stokes, of Ohio; Congressman Charles Rangel, of New York; Congressman Ronald Dellums, of California; Congressman Walter Fauntroy, of Washington, D.C.; Congressman Parren Mitchell, of Maryland; Congressman Ralph Metcalfe, of Illinois; and Congressman George Collins of Illinois.

We are delighted to be here even though the wait has been a long one. I would suggest that there is little room to quarrel with the view in connection with the nomination of William H. Rehnquist to the Supreme Court, that adequate legal experience and honesty alone are insufficient in reaching a determination of a nominee's fitness for the High Court. Beyond these requisites, his judicial philosophy is of the highest importance, and that is what we will emphasize and dwell upon in the time we have before you.

That is to say, his perception of the function of the Court, his obligations as a Justice in interpreting the Constitution, are clearly affected by his basic convictions on the socioeconomic issues of the day.

It is fundamental that an individual cannot divorce himself from his past sets of experiences. Even though he may not feel bound by the restraints of personal or constitutional judgment on issues he considered as a citizen, few men can achieve this degree of independence from their past.

No one seriously believes that a judge's professional work is not influenced and formed by his world outlook, by his economic and social and political understanding, by his experiences, and by his personal sense of justice regarding the great questions of his age.

And so, in passing on the very heavy question before you, might I quote from Professor Black of the Yale Law School, who has been mentioned during these proceedings. He wrote a passage that summarizes a great many pages of the testimony that will be inserted into the record:

*** there is just no 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 any presumption, of the nominee's fitness for the office. In a world that knows that 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 deference to the President's, as a satisfactory basis in itself for a negative vote. Our statement is replete with evidence of what might be called the socioeconomic viewpoint of the nominee in question.

We cited him at length to illustrate an outlook on life. We mentioned statements and illustrations from speeches, quotations, and activities that are perhaps not new to you and which have apparently been

gone over a good many times, but they do illustrate an outlook on life, a view of the world, which is too narrow, too ill suited for the times, and clearly out of step with the new responses that have emanated from the courts in an attempt to harmonize age-old challenges that still yet require constitutional interpretation.

Although it could be argued that no one of these statements taken alone presents in and of itself a serious threat to civil rights or civil liberties, it is maintained by us that they, taken as a whole, do, in fact, reveal a philosophy so rigid and conservative that it cannot help but have a chilling effect upon those who have struggled so valiantly to achieve the small gains made in the last 17 years under a system of law which has grudgingly given support and shelter to those legal doctrines that enshrine the first amendment and the 14th amendment. We are presently witnessing increasing numbers of violent acts of State terror in America: The overreaction of law enforcement officers in Watts, Newark, and Detroit; the massacres at Kent State, Jackson State, and Orangeburg. The tragedies at Attica and San Quentin are current examples of attempts to spread a psychology of fear among oppressed ethnic groups who are demanding power and freedom. And so, nearly 200 years after the establishment of this Government, the contradictions and antagonisms have become regulated and institutionalized, but not eradicated.

The question becomes then whether the Constitution will be used to moderate the conflicting racial and economic struggle in America and keep it within the bounds of law and order, or whether it can be used as a document to lead us to a unified, harmonious, and peaceful society.

To reconcile traditional antagonisms rather than regulate them is the new challenge confronting the Supreme Court of the land.

What are we to say of an individual nominated for the Highest Court who views the Constitution with an ante bellum eye, who sees the gigantic steps forward by the Court as requiring two giant steps backward, and one whose philosophy if it had been consistently applied since the inception of the Republic would by now have left us with very little progress in the areas of civil rights and civil liberties.

A careful study of these excerpts from Mr. Rehnquist's remarks reveals a clear call for the curtailment of due process, of habeas corpus, and of freedom of speech. You will find the justification for wiretapping and other surveillance. The expressed fear of nonviolent disobedience is to be met by force. It's all there: The defense of Haynesworth, the SACB, and the handling of the May Day demonstrators.

And so, in brief conclusion, the real question is: Can this country afford at this perilous time in its history an individual on the Court with an ideology so out of tune with the times that if his philosophy should prevail, even in part, it would threaten to tear at the slender threads now holding us together? Make no mistake about it, the Court is viewed as the last hope by millions of Americans-especially blacks and other oppressed minorities.

Short of the ultimate fulfillment of the American drean, that hope must be maintained. Holding our society together may well depend on maintaining the faith, which still survives even among the most disaffected, that in our highest courts there may still be found equal justice under law.

We can ill afford to move backward at a time when we are moving forward at a dangerously low rate.

The Senate should not confirm or fail to confirm this nomination because of a threat from any segment of our society, but it must recognize the consequences of its actions.

The Senate has not only the responsibility, if I may humbly suggest, to advise and consent on Presidential nominations to the Court, but has the obligation to examine the candidate's fitness in relation to the potential harm that might be done.

Again, as Professor Black observed

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 doing so.

Because there are reasonable grounds to believe that the views of William H. Rehnquist are inimical to the best interests of this Nation, the Senate is respectfully urged to advise the President negatively on this nomination.

I hope that the chairman and members of the committee will permit these Members of Congress and distinguished counsel from Virginia to make these suggestions because it seems very clear to me that unless this view is approached in evaluating this and the other nomination confronting you perhaps a rather serious mistake might be made. In other words, we are suggesting something that is really not new, but has been used and employed by the Senate in being that middle link between a nomination and a commission of Presidential nomination many, many times.

We are asking now that it be carefully reviewed, thoroughly considered, and fairly applied in the instant nomination.

Senator HART. Congressman, you have also a prepared statement which, I take it, you want to be printed in the record in full as if given. Mr. CONYERS. Yes, Senator; I do ask that this statement be included in the record.

The CHAIRMAN (presiding). We will take it.

(The statement follows:)

TESTIMONY BEFORE SENATE JUDICIARY SUBCOMMITTEE CONSIDERING THE NOMINATION OF WILLIAM H. REHNQUIST TO THE SUPREME COURT OF JUSTICE PRESENTED BY HON. JOHN CONYERS, Jr., MEMBER OF CONGRESS ON BEHALF OF

HIMSELF AND MEMBERS OF THE CONGRESSIONAL BLACK CAUCUS

Mr. Chairman and distinguished members of the Judiciary Committee, I consider it a privilege to appear before you in consideration of this Supreme Court nomination.

There would seem to be little room to quarrel with the view that adequate legal experience and honesty alone are insufficient in reaching a determination of a nominee's fitness for the high court. Beyond these requisites, his judicial philosophy is of the highest importance. That is to say his perception of the function of the Court, his obligations as a Justice in interpreting the Constitution are clearly affected by his basic convictions on the socio-economic issues of the day. An individual cannot divorce himself from his past sets of experiences. Even though he may not feel bound by the restraints of personal or constitutional judgment on issues he considered as a citizen, few men can achieve this degree of independence from their past. No one seriously believes that a judge's professional work is not influenced and formed by his world outlook, by his economic and

social and political understanding, by his experiences, and by his personal sense of justice regarding the great questions of his age.

In passing on the fitness of Supreme Court nominations, the Senate cannot ignore the candidate's total outlook. As Charles L. Black, Professor of Law at Yale University, recently wrote:

".... there is just no reason at all for a Senator's not voting, in regard to to confirmation of a Supreme Court nominee, on the basis of a full and unrestricted review, not embarrassed by any presumption, of the nominee's fitness for the office. In a world that knows that 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 deference to the President's, as a satisfactory basis in itself for a negative vote.'

We are today fully aware that the Constitution we live under and the laws we are judged by are not a lifeless set of wooden precepts moved about according to the rules of a mechanical logic. At least, the law is never that in the hands of great judges. The Constitution of today is what the judges of the past have made it and the Constitution of tomorrow will be what the judges appointed in our time will make it.

Appointments to the Supreme Court must be judged by time-honored standards not by immediate political opportunities or considerations. Presidential administrations come and go; laws are made and repealed; but judicial pronouncements set the course for generations. If tested by these standards, no man of just ordinary insight can be acceptable Court material. Judicial philosophy is an essential consideration of a nominee's fitness for the Court because of its potential effect on our law and the direction of our society. Furthermore, it is consistent with the Senate's constitutional role to examine this philosophy. Article II states: ". . . (the President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court". In giving its advice on a Presidential decision, like the selection of a Court nominee, the Senate must consider those things which went into making that decision. If it did not, it would not be able to advise properly, and would consequently be shirking its duty as spelled out by Article II.

It would be paradoxical to contend that the considerations which play a large part in the President's choice of a nominee are improper for the Senator in making the same decision.

In the Federalist Papers, Alexander Hamilton makes the following commentary on the advice-giving function of the Senate:

To what purpose then require the cooperation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

Hamilton's passage supports the notion that Senators should or ought to consider anything which they believe to bear on the wisdom of the nomination. Foremost among these considerations would be the judicial philosophy of the candidate.

There is ample precedent for the consideration of a nominee's judicial philosophy as a condition of his fitness for the Bench. An examination of Supreme Court nominations since 1900 reveals that great attention has been paid to the philosophy, record, and attitudes of nominees. In every case of opposition since 1900, the sociojudicial philosophy of the nominee was the focal point for opposition.

President Nixon made it very clear in his nominating statement that he chose William H. Rehnquist for his conservative judicial philosophy. In other words, he chose Mr. Rehnquist because he felt the nominee's world view would be good for the country as reflected in his judicial performance. Since the Senate must advise the President on his choice, it would seem that the Senate would have to decide whether the nominee's judicial philosophy would be good for the country. The specific question raised here is whether the nominee is properly equipped to deal with the social and economic issues of his day. To paraphrase Justice Frankfurter, we should explore the depth of his insight into the problems of his generation. This raises the fundamental question-where does Mr. Rehnquist's sense of justice lie in respect to these issues?

The best source for divining a man's worldview is in his record as a practicing professional. In the case of William H. Rehnquist, that record covers his years as

a practicing lawyer and as chief counsel for the Department of Justice. It is that record which is under scrutiny here.

One might agree with Mr. Nixon when he says that "the rights of society and defendants accused of crimes" must be maintained, that "the peace forces must not be denied the legal tools they need to protect the innocent from criminal elements," that "we can strengthen the hand of the peace forces without compromising our precious principle that the rights of individuals accused of crimes must always be protected." But we need not agree with his lawyer's lawyer, the nominee, that such methods as wiretapping, mass arrests, preventive detention, no-knock, abrogation of the rights of the accused, and the extension of executive privilege are desirable means of achieving these ends. The following catalogue of statements exemplifies a viewpoint which would necessarily be a part of the judging equipment the nominee would bring to the high Court.

In the Civil Service Journal, "Public Dissent and the Public Employee", January-March, 1971, vol. II, No. 3, p. 7, he wrote:

If Justice Holmes mistakenly failed to recognize that dismissal of a government employee because of his public statements was a form of restraint on his free speech, it is equally a mistake to fail to recognize that potential dismissal from government employment is by no means a complete negation of one's free speech. The government as an employer has a legitimate and constitutionally recognized interest in limiting public criticism on the part of its employees even though that same government as a sovereign has no similar constitutionally valid claim to limit dissent on the part of its citizens.

In a speech before the Newark Kiwanis Club, he stated: In the area of public law that disobedience cannot be tolerated, whether it be violent or nonviolent disobedience. If force is required to enforce the law, we must not shirk from its employment.

In testimony on March 9, 1971, before the Senate Judiciary Subcommittee on Constitutional Rights, he stated:

While there is obviously no justification for surveillance of any kind that does not relate to a legitimate investigation purpose, the vice is not surveillance per se, but surveillance of activities which are none of the government's business.

we believe that stringent physical and personal security measures can greatly reduce the risk of improper access and dissemination so that it poses no greater threat to personal privacy than manual data storage.

From there he continued,

I think it quite likely that self-discipline on the part of the Executive Branch will provide an answer to virtually all of the legitimate complaints against excesses of information gathering. No widespread system of investigative activity is apt to be perfect either in its conception or in its performance. The fact that isolated imperfections are brought to light, while always a reason for attempting to correct them, should not be permitted to obscure the fundamental necessity and importance of federal information gathering, or the generally high level of performance in this area by the organizations involved.

the Department (of Justice) will vigorously oppose any legislation which, whether by opening the door to unnecessary and unmanageable judicial supervision of such activities or otherwise, would effectively impair this extraordinary important function of the federal government.

În testimony on March 17, 1971, before that same subcommittee, he stated: I do not conceive it to be any part of the function of the Department of Justice or of any other governmental agency to survey or otherwise observe people who are simply exercising their First Amendment rights.

When you go further as, say: 'Isn't a serious constitutional question involved?' I am inclined to think not. This practice is undesirable and vigorously should be condemned, but I do not believe it violates the particular constitutional rights of the individuals who are surveyed.

In response to a question by Senator Ervin asking if surveillance tended to stifle the exercise of First Amendment rights, Rehnquist replied:

No. When the Army did this-and it apparently was generally known that they were doing it about 250,000 people came to Washington on two occasions to protest the President's war policies.

In a speech entitled "Privacy, Surveillance, and the Law" delivered March 19, 1971, he commented:

The argument in support of the contention that information gathering per se may violate First Amendment rights is that such information gathering may have a 'chilling effect' on the exercise of First Amendment freedom.