We see the U.S. Senate faced with the decision to confirm the nomination of one who we firmly believe does not see that the road to domestic peace lies in expanded civil liberties and protection of the laws. Mr. Rehnquist has affirmed time and time again that governmental functions such as law enforcement must take precedence over justice to the individual. He is one who, in this area, has tried to convince us that we should place our trust in men rather than in the Constitution which we have always felt to be supreme. Mr. Rehnquist has told us that the Supreme Court-long held by us to be the ultimate preserver of human rights--should no longer be allowed to preserve those rights, at least in the area of Government surveillance and wiretapping. He tells us that the courts must bow to the administrative process of which he has been a prime member for the past several years. We are taught in our universities that what makes America great is that our Government is of laws and not of men; that we are guaranteed certain rights which no man or group of men can take away. Among these rights we have always considered freedom of speech, the right to privacy, and the right to due process. Yet we see a man whose comments at least to us last spring seemed a before-the-fact justification of the techniques used in the arrests of thousands of our fellows under conditions which in no way could fall under the due process and equal protection of the laws implicit in the Constitution. We have seen the Justice Department attempt many times to stifle that dissent which we have always thought was one of the finer traditions of this Nation, and we have heard Mr. Rehnquist in particular call dissenters "barbarians." We are not here to advocate some of the activity that went on in Washington last May. We concede that some of that activity was unjustified and in fact was against the law. However, we do affirm that illegality must not be met with illegality. That demonstrators do occasionally break the law-the exception and not by any means the rule-does not by any standard acceptable to us justify the ignoring of the law which we saw on the part of the police. As one demonstrator remarked after the whole agonizing mess was over: "This city has become Saigon West. We were willing to take the consequences under the law, but they threw out the law on us." We assume that the actions of the Justice Department on this and other occasions are more a reflection of Mr. Rehnquist's own thought than not. In fact, he told this committee that had he strongly disagreed with Justice Department policy he would not have remained in its employ. We are not only willing but are anxious to place our trust, our faith, and our hope in this Government. We are willing and anxious, as we demonstrated in the 1968 presidential campaigns, to enter the democratic process with open minds and with whole hearts. But we do demand that that system reaffirm for us and show a firm commitment to the values of civil liberties and human rights which are necessary for this Nation to survive. We have all studied hard what we heard Mr. Rehnquist say to us last March 10, and we have come to the conclusion, that at least in one very large area of law he does not believe in ideals which we think are mandatory for the United States to pursue. We therefore urge this committee to commit itself to those ideals and to reject the nomination of William H. Rehnquist to the U.S. Supreme Court. The CHAIRMAN. Thank you. Miss HURST. The committee will accept our petitions into the record? The CHAIRMAN. Yes. Of course, I have said it would go into the record. Miss HURST. Fine. Senator BAYH. May I ask just one question, Mr. Chairman? Senator BAYH. I did not have the privilege of hearing your statement, but do you feel, Miss Hurst and Mr. Rogers, that you are capable of making a judgment that the statements and the colloquy involved surrounding the statements at Brown did indeed constitute Mr. Rehnquist's own personal views? Miss HURST. We assumed at the time, and had made the naive assumption, that what people say, especially with the force of Mr. Rehnquist, they do believe, or if they do not believe in those statements they make it clear. Since that time, of course, we have read parts of the transcript, and since that time Mr. Rehnquist has justified some of the tactics used at the May Day Demonstration, and we have heard him say, or we read the transcript and he said to the committee that had he not believed in Justice Department policy he would have resigned. We, therefore, more strongly believe that these were a reflection of his personal sentiments. Senator BAYH. Thank you. The CHAIRMAN. Thank you. Mr. Forer, National Lawyers Guild. Do you have a prepared statement? TESTIMONY OF CATHERINE G. RORABACK, PRESIDENT, NATIONAL LAWYERS GUILD Miss RORABACK. Yes; we do, Mr. Chairman. My name is Catherine Roraback. I am the president of the National Lawyers Guild, and I am here on behalf of the guild to present our views in connection with the proposed nomination of Mr. Rehnquist and Mr. Powell to the Supreme Court. I believe our statement was filed with the committee. The National Lawyers Guild is an association of attorneys and legal workers national in scope, as its name indicates, and in our meetings. of the national executive board a week ago we went on record at that time in opposition to the nomination of both of these gentlemen, and the board asked me to present this statement to this committee. Although the qualifications of these men appear to be an improvement over previous nominees who were overwhelmingly rejected by the people of the country and the Senate The CHAIRMAN. You are testifying against both nominees? Miss RORABACK. That is correct, Senator; yes-in fact, both of the nominees have revealed by their conduct and public expression of their political beliefs that they are incapable of taking the oath required by their office to support the Constitution. The views expressed by both men make it clear that they would be incapable of dealing fairly and impartially with issues arising out of the most pressing problems of our times: the struggle of blacks, other third-world people, women and other oppresses groups for social, political and economic equality. As the Constitution is now interpreted, there appears to be room for these struggles to operate within "the system." The National Lawyers Guild suggests that the reinterpretations promised by Messrs. Power and Rehnquist would have the effect of foreclosing these struggles, or forcing them outside the system. Senator GURNEY. May I inquire what "third-world people" means? Miss RORABACK. Yes; it covers any of the minorities, and this is a sort of word, a phrase, that has been adopted generally to cover such persons as Puerto Ricans, Chicanos, and other oppressed minorities who are not included within the phrase black. Senator HRUSKA. Is third world as far as you would go? Senator Eugene McCarthy insists there is a fourth world, and he is about to prove it with his effort to be preferred for public, high public, office. Would you agree that three world is not enough, there should be more than that? Miss RORABACK. Well, I suppose we might have millions of words, but for a short-time phrase to cover the group we are talking about, this is the reason for the words. The CHAIRMAN. Proceed. Miss RORABACK. Mr. Powell's views on some aspects of these struggles have been recorded by him in an article which originally appeared in the Richmond, Va., Times Dispatch on August 1, 1971, and which has since been reprinted in the October 1971 issue of the FBI Law Enforcement Bulletin and the New York Times on November 3. Since Mr. Powell has never held judicial or public office, and hence lacks a public record to examine, it is essential to closely scrutinize this article in order to ascertain whether he is fit to serve on the highest court of the land. In the article, Mr. Powell goes into great detail about the Government's burgeoning use of wiretaps in the absence of prior court order. In this, as in other areas, his position is in basic conflict with the tenets of the Constitution. To support such untrammeled invasions of constitutionally protected privacy, Mr. Powell uses the rationale that "there are only a few hundred wiretaps annually," and that “lawabiding citizens have nothing to fear." Aside from the fact that, by his statements, he has prejudged one of the most sensitive issues currently before the Supreme Court for adjudication at this time and hence is incompetent to pass upon it, should he be appointed, Mr. Powell's position reflects a total nonunderstanding of and/or lack of regard for the history and theory underlying the fourth amendment's prohibition against unreasonable searches and seizures. The fourth amendment was written into the Constitution to guard against the possible repetition of the colonists' experiences with massive and unrestricted searches of their homes by English authorities conducting investigations into subversive activities. The fourth amendment was to act as a barrier against official lawlessness; the constitutional barrier it creates is not dependent upon Mr. Powell's assessment of who is law abiding and who is not. The constitutional protections guaranteed by the fourth amendment were designed to protect all citizens from all arbitrary, unreasonable, and unlawful governmental activity.. Mr. Powell's justification of such unconstitutional activity by the Government warrants the closest examination. Having determined the crucial issues of whether domestic dissident groups are included within the category of threats to national security, by asserting: There may have been a time when a valid distinction existed between internal and external threats. But such a distinction is now largely meaningless. He legitimizes the lawless actions of unsupervised wiretaps on the grounds of the need for secrecy. Mr. Powell heightens the urgency, in his view, of ignoring the Constitution by quoting from Attorney General Mitchell: Prohibition of electronic surveillance would leave America as "the only nation in the world unable to engage effectively in a wide area of counter-intelligence activities necessary for national security.” To begin with, Mr. Powell's use of Attorney General Mitchell's hyperbolic statement is at best irrelevant and at worst hypocritical and misleading. The issue is not now and never has been whether the Government has the power to wiretap; the issue is whether this power is to be supervised by an independent judiciary that will insure that the constitutional requirements of the fourth amendment-the requirements of probable cause and reasonableness-are met, or whether the power will be used by executive fiat without judicial supervision. This issue is key. Mr. Powell's willingness, even eagerness, to entrust the enforcement of the protections of the 4th amendment exclusively to the executive branch of Government would undermine one of the firmest foundations of our constitutional form of government: that of the separation of powers and checks and balances. From the very beginning of our Nation, it has been the genius of our form of government to clearly divide and separate the powers of government into separate and equal branches, and to balance one branch's power against the power of its equals. To place on the bench a man who would have the judiciary totally abdicate its constitutional mandate under the 4th amendment to supervise the actions of the executvie branch in this most sensitive area of individual privacy and liberty and who would give untrammeled power to the executive would be to gravely endanger our entire system of checks and balances and the separation of powers. Such a man is a far cry from the strict constructionist President Nixon claimed to have wanted. Mr. Powell's apparent bias in favor of the executive branch to the detriment of the legislative and judicial branches is further evidenced by his glib dismissal of the allegations of several Senators and Congressmen that their telephones were being tapped or that they were under surveillance. Despite the FBI campaign, recently discovered in the Media, Pa., FBI files, to instill the chilling fear in all Americans that there is an "FBI agent behind every mailbox," and that is a quote that came from those files, Mr. Powell blindly assesses that all such charges are "apparently... a part of a mindless campaign against the FBI." An unstinting bias in favor of governmental action at the expense of constitutionally guaranteed rights is further evidenced by Mr. Powell's justification and commendation of the Government's policy of mass arrests in Washington, D.C., during the antiwar activities last May. He approves of the decision of the Justice Department to make thousands of unlawful arrests, and then points to the wholesale dismissal of charges as an example of the soundness of our judicial system, a system he would have remain safely out of sight until after the damage of lawless governmental actions has ended. In his article, Mr. Powell has passed judgment on several of the most important issues currently pending or that will probably come before the Supreme Court, in addition to that of the wiretap cases. Among other prejudgments, he states that, "the Kunstlers and others" are trying to disrupt trials and discredit and destroy our system. Not only does this libel courageous lawyers willing to defend unpopular clients and causes, but it indicates an attempt to intimidate others from doing the same. Moreover, Mr. Powell may be called upon some day, if he were confirmed for the Court, to hear the contempt convictions of Mr. Kunstler and others now pending in the court of appeals and to hear cases of their clients. In his political views, Mr. Powell does not "bend" or "twist" the Constitution, to use the President's language. Rather, he totally ignores it. Mr. Rehnquist has had greater opportunity to demonstrate his disregard of the Constitution, and demonstrate it he has clearly done. His invention of the fiction of "troop protection" to justify President Nixon's illegal invasion of Cambodia exhibited his attitude of total subordination of the legislative to the executive branch. Mr. Rehnquist's views on the subject of wiretapping without prior court authorization for the purposes of "national security" are well known. Although he opposes integration in schools and public accommodations on the ground of maximizing individual freedom, he nonetheless supports gross invasions of first and fourth amendment rights by unsupervised wiretaps and governmental surveillance on the unproved grounds of governmental necessity. Mr. Rehnquist's refusal to answer certain questions before this Senate Judiciary Committee on the ground that certain views were not his "personal views but rather those of a government advocate"-New York Times of November 4-is, at best, disingenuous. He was not forced into governmental service and was free to leave his employment at any time his conscience felt bruised. It seems safe to assume that the Nixon administration's policies on wiretaps and surveillance, policies that pose the greatest threat to liberty our Nation has faced in recent years, are clearly embraced by Mr. Rehnquist. Furthermore, Mr. Rehnquist's public record of opposition to integration in schools and public accommodations alone is sufficient to disqualify him from sitting on the Supreme Court, since it reflects a complete disdain for basic constitutional rights that have been upheld by the Supreme Court in unanimous decisions for the past decade and a half. Mr. Rehnquist's timely and recent disavowal of his opposition to a Phoenix public accommodations ordinance New York Times of November 4-is not, we believe, as accurate an indication of his views as his original opposition. Many issues are and will be before the Court involving the legitimate demands of racial and other minority and disadvantaged groups for full equality on our society. It woud seem that Mr. Rehnquist's often-stated position that "we give up a measure of our traditional freedom"-Rehnquist letter, 1964, 69-267-71-30 |