The Leadership Conference on Civil and Human Rights

REHNQUIST NOMINATION MOVES TO FLOOR

The fight over the Reagan Administration's nomination of William H. Rehnquist to be Chief Justice of the United States will move to the Senate floor in September. On August 14, the Senate Judiciary Committee reported the nomination favorably by a vote of 13 to 5. (The Committee approved the nomination of Antonin Scalia as an Associate Justice by an 13 to 0 vote). Some Senators who voted for the Rehnquist nomination, among them Minority Leader Robert Byrd (D-W.VA) and Charles McMathias (R-MD), expressed reservations and civil rights groups vowed to take their case to the Senate floor.

Background

On June 17, 1986 in announcing the retirement of Chief Justice Warren E. Burger, President Reagan stated his intention to nominate Associate Justice William H. Rehnquist to replace Burger, and U.S. Court of Appeals Judge Antonin Scalia to replace Rehnquist. Four days of hearings were held on the Rehnquist nomination, and three days on the Scalia nomination. Civil rights groups while opposing both nominations, focused their attention on Rehnquist. The reasons were stated by Benjamin L. Hooks, Chair of the Leadership Conference on Civil Rights, in his testimony opposing the Rehnquist nomination. Hooks said: "For thirty-five years, William H. Rehnquist has consistently demonstrated a marked hostility to the victims of discrimination. He is an extremist, a man dramatically out, of step with the bipartisan consensus on civil rights in this country." Hooks continued:

We believe that Mr. Rehnquist's extremism on civil rights is incompatible with that high and special office. Whatever the arguments over the scope of the 14th amendment to the Constitution, we believe that it is unarguable that the three Civil War Amendments wrote into our basic charter a special national concern for the status and rights of those Americans whose ancestors came here as slaves. That group of Americans today, as when the Amendments were adopted, suffers the consequences of that terrible institution and the practices and attitudes it reflected and beget. One who is out of sympathy with those purposes cannot fulfill the responsibilities of the Chief Justice not only of the Supreme Court but of the Nation... It is our role here.... commensurate with our own history, to protest the proposed elevation of an enemy of civil rights.

Eleanor Smeal, President of the National Organization for Women, focused her testimony on Rehnquist's "reactionary" views on sex discrimination and the rights of women in our society. She said: "If his views on the legal status of women were to become the dominant view of the Court, there is no doubt that a half century of hard-won gains for women would be undone by the Court ... Smeal continued:

In the crucial constitutional areas of due process and equal protection under the law, which are guaranteed to us by the 14th Amendment to the U.S. Constitution, Justice Rehnquist has consistently opposed the review of sexbased classifications with any measurable level of scrutiny. He would uphold sexÓdiscrimination as long as it was "rational." In real terms, this means that he would uphold sex discrimination whenever and wherever a legislator or other government official could come up with a traditional generalization about "all women." He would support sex discrimination on the grounds of administrative convenience alone.

Pre-Court Activities

Rehnquistts anti-civil rights opinions on the bench were foreshadowed by his anti-civil rights activities as a lawyer. These activities became a major issue in the hearings and Rehnquist's explanations placed his credibility in issue.

Voter Challenging... Rehnquist denied in 1971 and in his recent testimony that he ever challenged or intimidated minority voters while volunteering for the Republican party in Phoenix some twenty-five years ago. His testimony was contradicted by four witnesses who testified that they observed him challenging minority voters in Phoenix, Arizona in the early 19601s. Dr. Sydney Smith testified that while serving as a Democratic pollÓwatcher he saw Rehnquist along with one or two other men approach two black men waiting in line to vote, and state "You're not able to read, are you? You have no business being in line. I would ask you to leave." Dr. Smith characterized Mr. Rehnquist's actions as intimidation. Dr. Smith stated that his daughter and son (a registered Republican) convinced him that it was his patriotic duty to tell what he knew about the incident. "I am here so I won't lose the respect of my children."

A fifth witness, James J. Brosnahan, a former federal prosecutor in Phoenix, stated that he investigated charges of intimidation and challenging of minority voters at a Phoenix precinct in 1962, and had Rehnquist pointed out to him by unhappy voters as the person who had been doing the intimidating. Brosnahan stated that he spoke with Rehnquist and advised him that his behavior was improper. Brosnahan indicated that lie knew Rehnquist at the time, and remembered the incident because from that day lie has thought differently about Rehnquist. After repeated suggestions from Senator Orrin Hatch (R-UT) that Brosnahan was probably confusing Rehnquist with a Republican challenger Wayne Benson, Brosnahan replied: "I didn't get Bill Rehnquist mixed up with anybody named Benson. I knew him then. And I could spot him now. And there's no question about that." In response to Senator Hatch's questioning of just how sure Brosnahan was that he saw Rehnquist, Brosnahan replied:

Do you think I really would be here to testify about the qualifications of tile chief justice, after 27 years of trying lawsuits, if I wasn't absolutely sure? If it was even close, I would be at Jack's [in San Francisco] for my Friday afternoon lunch.

Brown v. Board of Education... Questions were also raised about a memorandum Rehnquist wrote analyzing the Brown v. Board of Education cases while serving as a law clerk to Associate Robert Jackson in 1952. The memorandum urges support for 'the 1896 Supreme Court decision in Plessy v. Ferguson which upheld the concept of "separate but equal." Rehnquist now alleges that lie was expressing Justice Jackson's views on tile case, and that he had not formed an opinion on the merits of the cases. Justice Jackson joined in the unanimous Brown decision in 1954 which held the separate but equal concept unconstitutional. Mrs. Elsie L. Douglas, secretary to Justice Jackson for many years, stated in 1971 and in a August 8, 1986 letter to Senator Edward M. Kennedy (DÓMA) that Mr. Rehnquist's explanation is inaccurate.

It surprises me every time Justice Rehnquist repeats what he said in 1971 that the views expressed in his 1952 memorandum concerning the segregation case then before the Court were those of Justice Jackson rather than his own views. As I said in 1971 when this question first came up, that is a smear of a great man for whom I served as secretary for many years. Justice Jackson did not ask law clerks to express his views. He expressed his own and they expressed theirs. That's what happened in this instance.

Rehnquist on the Court

The NAACP Legal Defense Fund in a review of Rehnquist's record since joining the Court in 1971 found that "among the 33 cases in which members of the Court have disagreed about the interpretation or application of a twentieth century civil rights statute, Justice Rehnquist has joined on 80 occasions for the interpretation or application least favorable to minorities, women, the elderly, or the disabled" (NAACP LDF August 8, 1986 Letter to Senator Strom Thurmond, Chair of the Senate Judiciary Committee).

On the Court, Rehnquist has been a lone dissenter in cases involving basic civil rights issues. In the first northern school desegregation case, from Denver, Colorado, Justice Rehnquist dissented alone (Keyes v. School Dist. No. 1, 413 U.S. 189, 254 (1973)). Rehnquist did not agree with the majority that Northern districts that deliberately engaged in practices of racial segregation of their schools committed violations of the Constitution in the same way as Southern districts that did so through statutes or official policies. He also attacked a landmark in tile Court's modern civil rights jurisprudence -- tile Green case of 1968 (391 U.S. 430) in which tile Court Óunanimously ÓÓ disposed of tile notion that the Constitution does not establish an affirmative duty to integrate but only forbids discrimination.

Similarly, Rehnquist dissented alone in the Bob Jones Case (461 U.S. 574) when the Court rejected the Administration's decision to abandon the position that segregated private schools do not qualify for tax exemption under federal law. Bob Jones is the case in which the Justice Department shifted the Government to the side of the segregated schools. Justice Rehnquist espoused the view that the IRS regulation denying tax exempt status was unauthorized by Congress. The Justice was so eager to rule against civil rights that he would have reached out to decide that if Congress were to grant tax-exempt status to organizations that practice racial discrimination, that action would not constitute a violation of the Equal Protection Clause.

Other Concerns...

Questions about Mr. Rehnquist's veracity also arose concerning his testimony about homes purchased in Arizona and Vermont that carried restrictive covenants barring sale to nonwhites and Jews. At first he testified that he was unaware of the convenants. Then in a letter to the Judiciary Committee he admitted that his lawyer had sent him a letter advising him of the covenant on the Vermont property.

Questions were also raised concerning the Justice's failure to recuse himself from cases which presented issues on which he had worked while in the Justice Department. Branzbur V. Hayes, 408 U.S. 665 (1972), involved the government's attempts to subpoena unpublished information from news reporters. Rehnquist did not recuse himself from the case despite the fact that lie had acted as a chief Administration spokesman for the subpoena power while serving in the Nixon Administration. Similarly, Laird v. Tatum, 408 U.S. 1 (1972), involved a challenge to the Nixon Administration's domestic military surveillance policy, a policy for which Rehnquist had expressed support during testimony before a Senate Judiciary Subcommittee while serving in the Administration. In both cases, the Supreme Court ruled 5Ó4 against the plaintiffs.

Others focused on the symbolism of confirming Rehnquist as Chief Justice. Senator Paul Simon (D-ILL) stated "the chief justice ought to be a symbol of justice for the country, just like the Statue of Liberty. Justice Rehnquist's record is not such that a lot of people are likely to view him as a symbol of justice." Althea Simmons, Director of the Washington Office of the NAACP, in discussing the Justice's lack of compassion for minorities and women reasoned that "even though a person is a genius, if he lacks compassion, it distorts reality and cripples objectivity."

Bill Moyer's commentary on CBS Evening News eloquently summarized the opposition to William Rehnquist.

We are told William Rehnquist is brilliant, the best and the brightest, so opponents of his nomination are advised to sit down and shut up, and not to question his credentials to be Chief Justice. But the issue isn't merely how sharp one's mind, how deep one's learning, how great the powers of pen and tongue. The issue is to what purpose such talents are given. When I was growing up, the argument that Blacks should remain second class citizens was often made by men with first class minds ... They were dazzling in defense of segregation, but they were blind. As the Civil Rights struggle began to take hold, they resisted it with all their learning and wisdom, William Rehnquist among them. He opposed the Supreme Court ruling that desegregated the schools, opposed the Civil Rights legislation of the 601s, opposed efforts in his home town to outlaw racial discrimination in public facilities...

We've come a long way since then, but not with the help of William Rehnquist... America is still trying to prove that a pluralistic, multiracial society can work. We inch slowly and painfully forward, only to slip back when we cease to be vigilant. It is still a struggle, this quest for equal rights. And now we are about to get a Chief Justice who never believed in it in the first place, opposed it all along the way, and for all his learning and intellect, is no friend of it today.