Subpoena of Rehnquist Memos Pledged : Panel Democrats Vow to Secure Papers as Scalia Hearings Begin

Although the Senate Judiciary Committee will shift its focus today to the Supreme Court nomination of Judge Antonin Scalia, Democrats on the panel vowed Monday to press ahead with efforts to subpoena Nixon Administration memos written by Justice William H. Rehnquist.

An aide to committee Chairman Strom Thurmond (R-S.C.) said the senator intends to complete the Scalia hearings even if a majority supports the subpoena of the Rehnquist documents, contending that the panel must vote on both nominees before the Senate recesses in just over a week.

About 40 witnesses, many opposed to Scalia’s conservative judicial philosophy, are seeking to testify at the hearings. But a required FBI background check of Scalia, now a judge on the U.S. Court of Appeals for the District of Columbia, appears to raise no “surprise” issues--such as racial and religious restrictions discovered in Rehnquist’s property deeds, a source familiar with the check said.

Fail to Resolve Request

Four days of hearings on Rehnquist’s nomination to be chief justice wound up Friday, without resolving a request by three committee Democrats for memos Rehnquist wrote from 1969 to 1971, when he was assistant attorney general in charge of the Justice Department’s Office of Legal Counsel--a highly sensitive post known as “the attorney general’s lawyer.”

In a letter to Thurmond on Monday, Assistant Atty. Gen. John R. Bolton noted that on July 25 the department had provided “a substantial number of documents, many of which had not been previously made public.”

On Thursday, President Reagan asserted executive privilege to withhold the remaining Rehnquist materials sought by the Democrats. These included “confidential memoranda, opinions and other deliberative materials whose release would compromise OLC’s continuing ability to provide objective legal advice to the executive branch,” Bolton said.

A meeting of seven committee members broke up Monday night with “no significant accord” being reached, said Bob Mann, a spokesman for Sen. Edward M. Kennedy (D-Mass.), who has declared his opposition to Rehnquist’s confirmation and is leading the subpoena effort.

Seek Full Disclosure

“We will continue to seek full disclosure of the documents and memoranda written or received by William Rehnquist during 1969-71, when he was a chief adviser” to former Atty. Gen. John N. Mitchell and former President Richard M. Nixon, Mann said.

A vote on the subpoena request could come by Wednesday, committee sources said.

Rehnquist memos that have been given the committee by the Justice Department cover some of the more sensitive subjects of the strife-torn era when he served as an assistant attorney general.

They include a May 22, 1970, memo he wrote that concluded that Nixon’s decision to invade and destroy Cambodian border sanctuaries during the Vietnam War was authorized by his power as commander in chief. An earlier Rehnquist memo dealt with the President’s executive privilege to withhold foreign policy and national security information.

But an aide to Sen. Joseph R. Biden Jr. (D-Del.), the committee’s ranking minority member, said that the material includes nothing unexpected. “If it did, we would have used it,” the aide said.

Thurmond Keeps Schedule

Thurmond’s aide, Mark Goodin, cited the committee’s July 18 agreement to vote on both the Rehnquist and Scalia nominations on Aug. 14 and said that Thurmond intends to keep that schedule, even if a subpoena is issued.

That agreement included caveats for additional time to be negotiated “if some substantial unanticipated fact arises” and for “prompt production of all reasonable requests for information pertaining to nominees.”

Thurmond’s intention to push ahead with the Scalia hearings runs counter to the position he took 18 years ago when President Lyndon B. Johnson was seeking to elevate Justice Abe Fortas to chief justice and had nominated Judge Homer Thornberry to succeed Fortas as associate justice.

Thurmond, then a member of the Republican minority on the committee, refused to question Thornberry on grounds that the vacancy he had been nominated to fill would not exist until Fortas was confirmed. In October, 1968, Johnson--in the face of a Senate filibuster and at the request of Fortas--dropped his attempt to elevate Fortas and withdrew Thornberry’s nomination.