Rehnquist’s Memoranda: No ‘Smoking Gun’

Legal memoranda that Chief Justice-designate William H. Rehnquist wrote 15 years ago as a key Justice Department official about mass arrests, wiretapping and Army surveillance of civilians contain no “smoking gun” that would prevent him from winning Senate confirmation, Sen. Charles McC. Mathias Jr. (R-Md.) said Wednesday.

But Sen. Paul Simon (D-Ill.), although agreeing that the papers contained “nothing sensational,” said they do provide a basis for “some additional questions” to direct at Rehnquist before the Senate Judiciary Committee votes on his nomination.

Democratic critics of Rehnquist, who hoped to find damaging material in the disputed papers, withheld detailed comments Wednesday night while they met privately on the material and promised to give their evaluation today.

Aide Studies Papers

Mathias, a liberal Republican who has crossed party lines and opposed Administration nominations in the past, said an aide had examined the papers and advised him: “There is nothing that can be characterized as spectacular. There is nothing that can be characterized as a smoking gun.”

If the memos Rehnquist wrote as a legal adviser to former Atty. Gen. John N. Mitchell and then-President Richard M. Nixon do not produce damaging disclosures, Rehnquist’s nomination as chief justice is expected to win the recommendation of the Senate Judiciary Committee at its scheduled vote on Aug. 14.

The conflicting assessments came as the committee wound up two days of tranquil hearings on the nomination of Judge Antonin Scalia as an associate justice.

Based on favorable comments by senators who remain undecided about Rehnquist, Scalia seems likely to gain committee approval by a wide margin.

Opponents of Rehnquist, led by Sens. Edward M. Kennedy (D-Mass.) and Howard M. Metzenbaum (D-Ohio), have charged that he is insensitive to civil and women’s rights and have questioned his truthfulness.

The criticism of Scalia came mainly from outside witnesses, who took issue with his views on women’s rights, affirmative action and First Amendment matters. The review process was interrupted by accusations that Justice Department material had been leaked to the press, charges that sparked a call for an FBI inquiry from committee Chairman Strom Thurmond (R-S.C.).

The Justice Department reacted by immediately retrieving the material from a locked Senate room where committee members and six GOP and Democratic aides were being allowed to review it.

Within hours, however, the material was returned to the Senate room after the charges were examined further and dismissed as “a tempest in a teapot,” said Sen. Joseph R. Biden Jr. (D-Del.), the panel’s ranking minority member.

Security Breach Alleged

The two officials who made the charges, Mark Goodin, Thurmond’s press aide, and Terry Eastland, the Justice Department’s public affairs director, nevertheless contended that security “had been breached,” based on telephone inquiries about the materials they said they had received from reporters.

They said the questions were so specific that they concluded the callers had been told some of the contents of the documents.

Eastland said the material at issue dealt with the question of whether one of Rehnquist’s legal recommendations would have denied due process of the law to affected citizens.

Sen. Orrin G. Hatch (R-Utah), Rehnquist’s leading defender on the panel, said: “I don’t think any lawyer would find legal fault” with the memos. Describing himself as the only senator to “look at every page” of the material by midday Wednesday, he added that it was “advice to a client . . . not objectionable to any lawyer.”

‘Joking Around’

At the hearing, Scalia was condemned by Eleanor Smeal, president of the National Organization for Women, who accused him of “ridiculing and joking around” about (legal) remedies in affirmative action cases.

Joseph L. Rauh Jr., testifying for the Leadership Conference on Civil Rights, sounded the same theme, accusing Scalia of having “ice water in his veins instead of compassion.”

Scalia drew praise, however, from a panel of witnesses including Lloyd Cutler, former counsel to President Jimmy Carter; Carla Hills, secretary of Housing and Urban Development in the Gerald R. Ford Administration; and Erwin N. Griswold, solicitor general during the Nixon and Ford administrations and former dean of Harvard Law School.