Four witnesses Friday disputed Supreme Court Justice William H. Rehnquist’s sworn testimony that he had not harassed or intimidated minority voters in the early 1960s, prompting Democratic senators to consider attempting to recall the nominee for chief justice to testify further.
But other witnesses, who contended that they would have known if Rehnquist had taken part in voter intimidation, said they had no such knowledge.
Sydney Smith, now a La Jolla, Calif., psychoanalyst, told the Senate Judiciary Committee that he had seen Rehnquist approach two black men waiting in line to vote in the 1960 or 1962 election in Phoenix, challenge their ability to read and tell them, “I would ask you to leave.”
‘Know It When I See It’
“I may not be able to define intimidation, but I know it when I see it,” Smith said, using words similar to a phrase that the late Justice Potter Stewart used in describing obscenity.
James Brosnahan, a San Francisco lawyer, told of being called at the 1962 election to a south Phoenix precinct as an assistant U.S. attorney to investigate complaints about challenges being made to black and Latino voters.
Brosnahan, whom Rehnquist has acknowledged knowing, said he is “certain” that Rehnquist was acting as a challenger at the polling place and that “a number of people” waiting to vote pointed him out as a person causing problems. “I have no doubt about that,” Brosnahan said.
Testifying with the precision and authority of a veteran trial attorney, Brosnahan noted that Rehnquist, at his 1971 confirmation hearings as an associate justice, told the Senate panel that he had tried to arbitrate disputes at Phoenix polling places and had not personally engaged “in challenging the qualifications of any voters.”
“This does not comport with my recollection of the events I witnessed in 1962 when Mr. Rehnquist did serve as a challenger,” Brosnahan said.
Manuel Pena, an Arizona Democratic state senator, told of being involved in a “close confrontation” with a Republican challenger at the Nov. 3, 1964, election at a Phoenix precinct. He said he recognized the challenger at the 40% Latino precinct as Rehnquist from a newspaper picture he saw a few years later.
Charles Pine, a former state Democratic Party chairman in Arizona, said Rehnquist “is currently suffering from a conventient lapse of memory” in denying voter intimidation. Pine said he saw Rehnquist at the 1962 election approaching voters and asking them: “Are you qualified to vote?”
The testimony on voter harassment is potentially important for two reasons: Democrats cite the allegations as evidence of Rehnquist’s “insensitivity” to civil rights and they see it as casting doubt on his truthfulness.
Meanwhile, Reagan Administration sources indicated Friday that they are trying to work out a compromise to avoid a showdown over the issue of executive privilege that the White House has invoked in refusing to turn over any memos Rehnquist wrote as an assistant attorney general.
The memos, sought by Democrats on the Senate panel, involve such sensitive subjects as anti-war demonstrators, wiretapping, the Kent State killings, leak investigations, civil rights and liberties. Rehnquist, who waived any confidentiality privilege of his own, wrote memoranda as head of the Justice Department’s office of legal counsel, which works both for the attorney general and as an arm of the White House counsel’s office.
Sen. Edward M. Kennedy (D-Mass.), who has declared his opposition to Rehnquist, accused the Administration of “stonewalling” and relying on “the same shopworn, discredited arguments that were used to hide Watergate” in claiming executive privilege over the Rehnquist memos. “What are they trying to hide?” he asked at the hearing Friday.
As the hearing ended Friday night, Kennedy, Sen. Charles McC. Mathias Jr. (R-Md.) and some other senators on the committee emerged from a private meeting to announce that discussions aimed at resolving the dispute will continue over the weekend.
“There’s an agreement with the Administration . . . that we will try to work this out,” Mathias told the committee.
Rehnquist’s Republican defenders attempted to counter the allegations of voter harassment with witnesses of their own who disclaimed any such action by the nominee.
James Bush, a Phoenix lawyer, said he worked with Rehnquist in giving legal advice to GOP party workers who were challenging voters in the 1960 and 1962 elections in Phoenix and that he was unaware of Rehnquist’s taking part in any challenges.
“We weren’t about to waste legal talent as challengers,” he said.
Vincent Maggiore, a lawyer and chairman of the Maricopa County Democratic Committee in the early 1960s, said that “at no time did anybody come to me and state that Justice Rehnquist had committed the acts we’ve heard about for three days.”
Difficulties over resolving the voter challenging issue may “very well” make it necessary to recall Rehnquist “to find out what he meant” in denying challenging any voters, said Sen. Joseph R. Biden Jr. (D-Del.), the panel’s ranking minority member.
“We have released him,” committee Chairman Strom Thurmond (R-S.C.) said. “We kept him here for three days.”
But Biden’s suggestion picked up support from one of the Democrats most sympathetic to Rehnquist, Sen. Howell T. Heflin (D-Ala.), who contended that Rehnquist had not been excused and should be recalled if “it is desirable.”