He goes on to say:

This legislation would authorize the Attorney General to order wiretapping after the determination that there was a reasonable ground for belief that the national security was being threatened. In order to proceed, the Attorney General would have to find and certify that the offense under investigation presented a serious threat to the security of the United States; that facts concerning that offense may be obtained through wiretapping; that obtaining a court order would be prejudicial to the national interest and that no other means are readily available for obtaining such information.

And the concluding part of this section of his statement reads:

Thus, the bill would limit the authority now held by the Attorney General to authorize wiretapping but it would permit evidence obtained thereby to be presented in court. I believe these are most important points.

Would you be in a position to comment on that, outside of the same work of your own brief to the Court, Supreme Court?

Mr. REHNQUIST. Well, naturally it would be improper for me to comment in any sense in a situation like that that might come before the Court for review, whether or not I might feel bound to disqualify myself. But certainly it sounds as if Attorney General Kennedy's testimony was very similar to the practice presently followed by the Department of Justice in which it is substantially defended in the brief just filed by the Government in the Supreme Court of the United States, the limitation to national security cases, and the importance of the same to the protection of the Government, itself, that is.

Senator SCOTT. And you noted in the quotation that the Attorney General makes the point that this power has existed in the President, acting through their Attorneys General, since 1940, which is now 31 years?

Mr. REHNQUIST. Yes, and we now have 9 additional years of precedent which we have cited in the Department's brief, since Attorney General Kennedy spoke in 1962.

Senator SCOTT. Well, I thank you very much, Mr. Rehnquist, I reserve the right to continue in case there is a second round of questioning.

I would also like, Mr. Chairman, to reserve the right, as I noted, to offer this brief with some additional documentation in the hearing tomorrow. Thank you, sir.

Senator BAYH (presiding). The chairman will welcome all material the gentleman from Pennsylvania wants to put in the record. Senator Cook.

Senator Cook. Mr. Chairman, I would like to reserve the right until tomorrow.

I think Senator Mathias and I have agreed.

There is, however, one thing that I want to say for the benefit of the few press that are left. In the letter from the American Bar Association that was distributed this morning, I would like to read the second to the last paragraph on page 2 which says:

While the committee is unanimous in the view that Mr. Rehnquist is qualified for the appointment, three members of the committee believe that his qualifications do not establish his eligibility for the committee's highest rating and would, therefore, express their conclusion as not opposed to his confirmation.

I wish to say to the few spectators that are left that this may be why people can no longer believe what they read in the newspaper, because the night final of the Evening Star says:

Court Choices Given ABA Okay. Panel Supports Rehnquist 9-3, Powell Fully.

Now, that is completely inaccurate and everybody can see it in print.

Senator MATHIAS. Mr. Chairman

Senatory BAYH. May I just ask the Senator from Kentucky if he believes anyone who disagrees with him on an issue is on the wrong side?

Senator Cook. No, sir; I do not, and I think the acting chairman knows different than that, and the acting chairman and I have been at this for quite some time.

But, one of these days I may be fortunate enough to get enough seniority on here that I will be able to ask some of those question before they all get asked.

Senator MATHIAS. Mr. Chairman?

Senator BAYH. I would suggest that you will have to have a little patience, and we have all had a little today.

Senator SCOTT. If you would yield, I would like to comment that if this committee would some day revise its procedures in line with those of most other committees, and alternate right to left, maybe some of us would get an opportunity to be heard before the noon and the evening deadlines have passed, and all of those who have made the deadlines have happily gone hence.

Senator MATHIAS. Mr. Chairman, following up

Senator Cook. I apologize that the able acting chairman is the one that got caught in that.

Senator MATHIAS. Mr. Chairman, the Senator from Kentucky and I made sort of a nonjudicial interpretation that this is getting close to the eighth amendment prohibition against cruel and unusual punishment to prolong this very much longer.

Mr. Chairman, can we have an understanding that we begin tomorrow with the Senator from Kentucky, and proceed with the normal rotation of questions?

Senator BAYH. With the understanding from the Senator from Indiana that our chairman decides for us and we come in at 10:30 tomorrow morning. I certainly feel we should resume

Senator MATHIAS. With the Senator from Kentucky.
Senator BAYH (continuing). Where we had terminated.
Senator MATHIAS. Right. Thank you, Mr. Chairman.

Senator BAYH. Could I address one last question which I thought had been laid to rest, and I feel somewhat with deference to the witness and nominee, I just wondered, you have just been given a copy of the transcript that I thought answered the question obviously, but let me have just one more question:

When we were talking about various clients and I asked questions relative to Transamerica Title Insurance Corp., or Phoenix Title & Trust Co., now, did you negotiate you talk about escrow and this type of thing, and I think you laid this to rest, but I want to ask one specific question, and I think it is important to you that it be in-did you negotiate or carry out a very large transfer of land in 1964, involving land in Arizona exchanged for land in Point Reyes National Park, Calif.?

Mr. REHNQUIST. Point Reyes Park in California? No.

Senator BAYH. Thank you.

(Thereupon, at 6:20 p.m. the hearing was recessed to reconvene tomorrow, Thursday, November 4, 1971, at 10:30 a.m.)

NOMINATIONS OF WILLIAM H. REHNQUIST AND

LEWIS F. POWELL, JR.

THURSDAY, NOVEMBER 4, 1971

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,
Washington, D.C.

The committee met, pursuant to recess, at 10 a.m., in room 1202, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

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

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

The CHAIRMAN. Let us have order.

I will state to the committee that Senator Byrd and Senator Spong desire to go to Senator Willis Robertson's funeral. Therefore, they are going to present the nominee, Mr. Powell, and then we will go back to Mr. Rehnquist.

Senator Byrd.

Senator BYRD. Thank you, Mr. Chairman.

Gentlemen of the committee, I shall be very brief. I know that the committee wants to proceed expeditiously on these two nominations since the Court is short handed.

Now, Mr. Chairman, first I would like to invite to the attention of the committee

The CHAIRMAN. Wait just a minute.

Is Congressman Satterfield present?

Mr. SATTERFIELD. Yes, sir.

The CHAIRMAN. Would you come up, sir?

STATEMENT OF HON. HARRY F. BYRD, JR., A U.S. SENATOR FROM THE STATE OF VIRGINIA

Senator BYRD. Mr. Chairman, I want to invite to the attention of the committee that the entire Virginia congressional delegation is present this morning, four Democrats and six Republicans, in support of the nomination of Lewis F. Powell to the Supreme Court of the United States.

Also present is the attorney general of Virginia, Mr. Andrew Miller, who strongly supports the nomination of Mr. Powell, and the committee has, in its hands, a letter from Governor Holton who likewise strongly supports the nomination of Mr. Powell

Mr. Chairman, gentlemen of the committee, I have known Lewis Powell for 25 years. He is an outstanding lawyer. He is recognized not only in Virginia but throughout the Nation as one of those who stand at the very top of the legal profession.

He has in my judgment a fine judicial temperament. He is a man of great ability and of the highest integrity. I feel confident that he will add luster to the highest court of our land.

The people of Virginia are strongly behind Lewis Powell. Although he has dedicated his life to the law, he has served his community, the city of Richmond, and his State, the State of Virginia, in may positions of responsibility of an appointive nature.

Through the years he has taken a keen interest in education, having served on the school board of his native city and subsequently on the State Board of Education for the Commonwealth of Virginia.

Mr. Chairman, and gentlemen of the committee, I strongly endorse President Nixon's nomination of Lewis F. Powell to the Supreme Court of the United States, and I am convinced that if he is approved by this committee, and confirmed by the Senate, that he will make an outstanding jurist and he will add distinction to the most distinguished court in our land.

I thank the chairman and the members of the committee for this opportunity.

The CHAIRMAN. Any questions?

Senator Spong.

STATEMENT OF HON. WILLIAM B. SPONG, JR., A SENATOR
FROM THE STATE OF VIRGINIA

Senator SPONG. Mr. Chairman, I am pleased to be here with Senator Byrd this morning and with Congressman Satterfield and all the other members of the Virginia congressional delegation and the attorney general of Virginia to present to the Judiciary Committee Lewis F. Powell, Jr., who has been nominated for the Supreme Court.

Mr. Powell has engaged in the private practice of law since 1932 in Richmond. His career has included positions of highest honor and greatest responsibility in the legal profession.

He was president of the American Bar Association in 1964-65, president of the American College of Trial Lawyers in 1969-70, and president of the American Bar Foundation in 1969-71. In 1970 he was elected an Honorary Venturer of Lincoln's Inn-one of only three Americans, the others being the late Dean Acheson and Whitney North Seymour, to have been so honored.

Lewis Powell has served with distinction as a citizen of his Nation, of his State, and of his community.

At the national level, Mr. Powell was a member of the National Commission on Law Enforcement and Administration of Justice, appointed by President Johnson in 1965.

He was a member of the Blue Ribbon Defense Panel, appointed by President Nixon in 1969 to study the Department of Defense.

Of special interest to the members of this committee, he was a member of the National Advisory Committee on Legal Services to the Poor, established pursuant to the Economic Opportunity Act of

1964. For his work in helping to develop the concept of legal aid within the professional legal system Mr. Powell received the first annual Office of Economic Opportunity Award in 1968.

Not least of all, his service for his country has included 33 months in the European and North African Theaters during World War II as a combat and staff intelligence officer with the U.S. Army Air Corps. He served in the ranks of first lieutenant through colonel, and was awarded the Legion of Merit, the Bronze Star, and the French Croix de Guerre with Palm.

These are impressive credential which would commend this man to you for confirmation. As a fellow lawyer, and one who has worked with Lewis Powell in Bar Association matters, I could dwell at length on his accomplishments in his chosen profession. But I want briefly to talk with you this morning about his record as a citizen of Virginia and its capital city of Richmond during the difficult times following the Supreme Court decision in Brown v. Board of Education.

During these years I was chairman of a commission to study and make recommendations to improve public education in Virginia. I had an opportunity to observe Mr. Powell in action and to understand the full scope of his influence and sense of fair play. Mr. Powell conferred with me with respect to the commission's work, testified before the commission and strongly supported the recommendations this commission made to improve public education throughout Virginia. In his position as chairman of the Richmond Public School Board from 1952 to 1961 and then subsequently as a member of the State Board of Education, Mr. Powell was in a position of complex responsibility during some very turbulent and confused times.

His primary concern was to keep the schools of Virginia open and to preserve the public education system for all pupils.

You can recall with me, I am sure, some of the problems that followed the integration orders in other States of the South. That a similar fate did not befall Richmond was in large measure due to the calm leadership, the perceptive judgment and the open minded and fair attitude which exemplified Mr. Powell's schools board incumbency. His forceful and moderating voice stood out to many Richmonders as the best hope to avoid serious disruption of their city's public school education system.

In the persepective of history, men of reason and good will can suggest actions which Mr. Powell might have taken to speed up or slow down the process of desegration. But the point of my telling you all this, Senator Eastland and members of this committee, is to demonstrate as forcefully as I can that you have before you today a man of courage, independent judgment and intellectual honesty. These are the qualities I would hope to find in any nominee to fill a vacancy on the Supreme Court. I believe you will find them, as I have, in Lewis Powell.

Mr. Chairman, I have here the resolutions of the Virginia Bar Association, the Virginia State Bar, the Virginia Trial Lawyers Association, and of the Bar Association of the City of Richmond and I would ask that they be received in the record.

The CHAIRMAN. They will be admitted.

(The resolutions referred to follow.)