A group of more than 100 law professors Wednesday sharply questioned Chief Justice-designate William H. Rehnquist’s integrity and ethical standards, urging senators to resist politics and decide whether to confirm him as a matter of individual conscience.
In a letter to the Senate, distributed by Sen. Howard H. Metzenbaum (D-Ohio) on the eve of the Senate debate on Rehnquist’s nomination, the professors contended that the Supreme Court justice’s testimony on voter harassment allegations, restrictive covenants and a pro-segregation memo reveal “moral obtuseness” and a lack of appreciation for the law’s ethical and symbolic dimensions.
The letter also cited Rehnquist’s refusal to disqualify himself from ruling in an Army surveillance case in 1972, and charges by Rehnquist’s brother-in-law that he breached legal ethics in a family trust matter.
‘A Growing Cynicism’
Saying that the Rehnquist confirmation “has become a testing ground for the ethical standards of this nation,” the professors described themselves as “troubled by a growing cynicism among our students. . . . Paradoxically, in the post-Watergate period, proof of statutory crime is becoming the standard by which we measure the highest officials of the land"--a perception they said must be changed.
The letter, which was the idea of Arthur Berney, a constitutional law professor at Boston College, carried the signatures of 76 law professors when released by Metzenbaum’s office. But an aide to the senator said that 30 other professors called to ask that their names be added.
The signers included two UCLA law school professors--Carrie Menkel-Meadow and Leon Letwin.
Meanwhile, a Yale Law School expert on judicial ethics advised Sen. Charles McC. Mathias Jr. (R-Md.) that he believes the nominee either forgot that he had handled Army surveillance policy as a Justice Department official or misrepresented his involvement to his fellow justices and parties in the 1972 case.
Possible Swing Vote
Mathias, who is regarded as a potential swing vote even though he joined the 13-5 majority on the Senate Judiciary Committee that approved Rehnquist, finds the analysis by Prof. Geoffrey C. Hazard Jr. “troubling,” a spokeswoman said. She said that Mathias requested Hazard’s analysis, but said he would have no comment Wednesday on whether he is considering voting against Rehnquist.
Despite the new criticism, the latest in a series of efforts by Rehnquist’s foes to build opposition, his confirmation--and that of Judge Antonin Scalia as associate justice--continued to appear certain.
No signs of Republicans joining those Democrats opposing Rehnquist have appeared. Such shifts would be necessary in the Republican-controlled Senate to defeat the nomination. Nevertheless, Ralph Neas, executive director of the Leadership Conference on Civil Rights, said he is “confident there will be Republican opposition to Mr. Rehnquist’s confirmation.”
Expert on Judicial Ethics
In his letter to Mathias, Hazard, a leading expert on judicial ethics who helped formulate the American Bar Assn.'s current standards in the area, focused on Rehnquist’s written statement last month during his Senate confirmation hearings that he did not recall “any participation in the formulation of policy on use of the military to conduct surveillance or collect intelligence concerning domestic civilian activities.”
Rehnquist later voted with the 5-4 Supreme Court majority that turned aside a legal challenge to the Army spying.
Hazard said that Rehnquist, in his position as head of the attorney general’s office of legal counsel, must have been involved in the negotiations with the Army in 1969 to formulate its surveillance policy.
Whether Rehnquist’s statement that he has no recollection of taking part in making the policy should be accepted is a matter of judgment, Hazard said.
“It was made by a lawyer of the highest intelligence concerning sensitive state policy over which his office had direct responsibility early in his service in government, and about which he had been asked to search his recollection on three official occasions,” Hazard said.
Points of Concern
In their letter, the law school professors urged senators to “resist the political push and decide this most important appointment of all as a matter of individual conscience.” In detailing their points of concern, the professors cited charges by Rehnquist’s brother-in-law, Harold Dickerson Cornell, a former San Diego prosecutor disabled by multiple sclerosis, that Rehnquist had joined other family members in not telling him of a $25,000 trust that had been left for him. Cornell voiced the allegation in an interview last month with The Times.
Rehnquist drew up the trust in 1961 as a private lawyer for his dying father-in-law, Dr. Harold Davis Cornell. Rehnquist’s brother-in-law contends that Rehnquist had a special ethical duty as a lawyer to alert him to the existence of the trust. Family members have said that the younger Cornell was not told of the trust because his father feared he would not spend the money wisely.
“Such charges would be the basis of a bar committee investigation if lodged against an ordinary attorney,” the law professors said in their letter. “So far there has been no response from Justice Rehnquist and to the best of our knowledge no investigation by an official body.” The allegation was not presented in the confirmation hearings before the Judiciary Committee and Rehnquist refused to answer reporters’ questions about the matter.
Last week the Justice Department said it would not permit a renewed FBI investigation into Cornell’s charges that was sought by four Democratic senators. Assistant Atty. Gen. John R. Bolton said an earlier inquiry had found no merit to the allegations.