Through the Wringer

By Amy Wilentz

Tough questions about his civil rights views. Allegations that he tried to prevent minorities from being allowed to vote. Obscure yet embarrassing revelations about the deeds to his homes. A showdown with the White House about memos he wrote on the eve of Watergate.

Last week's confirmation hearings must have seemed an all-too-familiar nightmare to William Rehnquist, President Reagan's nominee to be Chief Justice, who first went through this particular mill in 1971 when he was initially nominated to the Supreme Court. Even with a redoubtable conservative ally, North Carolina Republican Strom Thurmond, at the helm of the Senate Judiciary Committee, the rumpled and bemused Rehnquist suffered some turbulent moments at the hands of liberal Democratic committee members like Ted Kennedy and Joe Biden. Although the heated hearings were not expected to hurt Rehnquist's chances of confirmation as the 16th Chief Justice of the U.S. when the full Senate votes in September, they raised some sticky questions about his sensitivity to racial issues.

Most damaging were the charges that in the early '60s Rehnquist intimidated black and Hispanic voters at polling places in Phoenix, where he was then a local Republican activist, by questioning their ability to read. Until 1964, it was legal in Arizona to challenge a person's right to vote on the grounds of illiteracy. In a 1971 letter to the Senate after his confirmation hearings, Rehnquist stated categorically that he had not "personally engaged in challenging the credentials of any voter." This time around he was more circumspect. First he claimed that his function on Election Day was to provide legal advice to Republicans assigned the task of challenging voters' credentials. Then, peppering his testimony with "I don't recall"s, he said he did not believe he had ever challenged any voter.

A far less benevolent picture of his activities emerged from the testimony of four new witnesses. Psychology Professor Sydney Smith, a Democratic poll watcher at the time, said that in the '60s he saw Rehnquist go up to two black men at the polls and say to them, "You're not able to read, are you? You have no business being here." San Francisco Attorney James Brosnahan, an Assistant U.S. Attorney in Phoenix in 1962, specifically contradicted Rehnquist's sworn testimony. Brosnahan recalled how he was summoned by panicky voters and officials to a precinct where Rehnquist was a challenger. Brosnahan said he assumed that it was Rehnquist's "blanket" challenges of black and Hispanic voters that had led to the tense situation though he had not personally seen Rehnquist challenge anyone. Nonetheless, he testified that Rehnquist's conduct "was designed to reduce the number of black and Hispanic voters by confrontation and intimidation." But Vincent Maggiore, then chairman of the Phoenix-area Democratic Party, said he had never heard any negative reports about Rehnquist's Election Day activities. "All of these things," he said, "would have come through me."

On the personal side, the FBI discovered in a routine check that Rehnquist had bought two houses that were subject to discriminatory deed restrictions. The deed to his current summer home in Greensboro, Vt., which he bought in 1974, includes a clause barring sale of the house to "anyone of the Hebrew race." The restrictive clause was not part of the standard printed document, but had been typed in specifically. Rehnquist never signed the deed and said he was only recently aware of the restriction's existence. He said he found the restriction "obnoxious," as well as unenforceable under a 1948 Supreme Court ruling.

It was also disclosed that Rehnquist once owned another home, in Phoenix, whose deed included a covenant prohibiting transfer to anyone not of the "Caucasian race." Rehnquist could not recall having seen the deed, which he never signed. In response to sharp questioning by Kennedy, Rehnquist characterized the terms of the deed as "very offensive."

Democrats on the committee tried to obtain a number of memos written by Rehnquist from 1969 to 1971, when he was head of the Justice Department's Office of Legal Counsel. The position was a sensitive one during the Nixon era; Rehnquist was writing on such subjects as civil liberties, government surveillance of radical groups and wiretapping shortly before the Watergate scandal broke. The Reagan Administration refused to allow the committee to see the documents, citing executive privilege. Kennedy angrily characterized the refusal as "stonewalling, pure and simple." By week's end the Democrats did not have enough votes to subpoena the documents, but committee members continued to negotiate with the Justice Department for limited access.

Rehnquist's Democratic opponents have focused on specific points, searching for outright personal misconduct. Their opposition to Rehnquist, however, is basically along ideological lines: he is the most ardent and consistent conservative on the court. Some scholars, including Harvard Law Professor Laurence Tribe, have urged a forthright challenge to appointees on ideological grounds, as was often the case in the 19th century. Today, however, the Senate tends to look for a smoking gun. Thus the Democrats have chosen to steer clear of an ideological battle this time around, relying instead on digging into some distasteful but probably not disqualifying incidents in Rehnquist's past.

With reporting by David Beckwith/Washington