Senate Confirms Rehnquist, 65-33 : New Chief Justice Survives Partisan Attacks; Scalia Wins Approval, 98-0

Times Staff Writer

The Senate voted Wednesday evening to confirm William H. Rehnquist as the 16th chief justice of the United States, ending a prolonged and partisan fight over President Reagan's choice to head the Supreme Court.

A solid block of Republicans and about a dozen moderate Democrats combined for a 65-33 vote in favor of Rehnquist, who survived an all-out attack waged by liberal Democrats and civil rights groups.

"They have left no stone unthrown," said Sen. Orrin G. Hatch (R-Utah), Rehnquist's staunchest defender, who complained that the "distortions and misrepresentations" voiced against the 61-year-old justice amounted to a "Rehnquisition."

Shortly after the vote on Rehnquist, the Senate voted, 98 to 0, to confirm U.S. Circuit Judge Antonin Scalia, 50, as a high court justice. He is the first Italian-American on the Supreme Court.

Mathias, Weicker Vote No

Only two of the Senate's 53 Republicans voted against Rehnquist--Charles McC. Mathias Jr. of Maryland and Sen. Lowell P. Weicker Jr. of Connecticut. Sixteen of the Senate's 47 Democrats voted for Rehnquist. California's two senators split, with Republican Pete Wilson voting for Rehnquist and Democrat Alan Cranston voting against him.

Rehnquist told Cable News Network that he was "delighted. It's been a long summer, and I'm awfully glad it's over with. I'm very glad to be confirmed. I look forward to taking over the new responsibility.

"I'm going to be chief justice when I take the oath of office, and I intend to try to do my best to discharge that job. I'm not going to think about all the things that went on in the confirmation debate," he said.

The Senate's action will not immediately change the voting balance on the high court because Scalia, in effect, would replace retiring Chief Justice Warren E. Burger, also a conservative. But the change clearly strengthens the court's right wing because both Rehnquist and Scalia are not only forceful and reliable conservatives but relatively young by Supreme Court standards.

Scalia Named Judge in '82

Scalia, a Harvard Law School graduate who has nine children, took a seat on the federal appeals court in Washington in 1982. He had practiced law in Cleveland in the 1960s and taught at the University of Virginia, Georgetown, the University of Chicago and Stanford before accepting Reagan's appointment to the federal bench.

Democrats on the Senate Judiciary Committee said there was no basis for challenging Scalia on questions of veracity or character, which they had raised about Rehnquist.

Rehnquist becomes chief justice under something of a cloud.

During the long confirmation debate, both his backers and critics said that his keen intellect and judicial experience qualified him to head the high court. However, a series of charges--particularly that he is hostile to blacks and women and that he had not been candid at his Senate hearings--had eroded his support. The 33 "no" votes Wednesday were the most votes cast against any confirmed justice since 1888, when Lucius Lamar was confirmed, 32 to 28.

In 1971, Rehnquist survived a fierce attack during confirmation proceedings on his nomination by President Richard M. Nixon as an associate justice. He was eventually confirmed by a 68-26 vote.

With Republicans now in control of the Senate, his supporters thought that this confirmation would be easier. The early predictions were that only 20, or perhaps as many 25, senators would vote against Rehnquist.

Instead, the attacks on his record this time were more fierce and more sustained than in 1971, and they clearly took their toll. In recent days, several senators announced on the floor of the chamber that they had decided to vote against him.

Cites 1970 Memos

Mathias, the second ranking Republican on the Senate Judiciary Committee, said Wednesday that he would vote against Rehnquist because of recently disclosed memos from 1970 in which Rehnquist, then a top attorney in the Nixon Administration's Department of Justice, proposed a plan to halt school desegregation and denounced the equal rights amendment.

Mathias, who had voted for Rehnquist in the Judiciary Committee, said also that he was bothered because the justice in 1972 had cast the deciding vote to end a suit challenging the Army's spying on civilians. Many legal scholars have contended that Rehnquist helped formulate the Army's plan while at the Justice Department and therefore should have taken no part in the case. Rehnquist in 1972 denied that he had played any direct role in the spying program.

Just hours before the vote, Sen. J. James Exon (D-Neb.) said he would vote against Rehnquist because of his "lack of credibility and reliability." Exon, a moderate, praised the justice's "high intellect" and his "pro-life position" on the court. Rehnquist has regularly dissented from the court's decisions granting women the right to an abortion.

Exon Explains Switch

"I had intended to vote for Justice Rehnquist last night and again this morning," Exon said. However, after listening to the debate and having "second thoughts . . . I have come to the conclusion that the proper vote is 'no'," he said.

However, Rehnquist's supporters contended that most of the criticism stemmed from his conservative philosophy. "He has proven in his almost 15 years on the court to be a brilliant legal thinker and writer," said Sen. Dennis DeConcini (D-Ariz.). "He has brought dignity to the court and earned the respect of his colleagues."

"He's an excellent man, and he's going to make an outstanding chief justice," Senate Judiciary Committee Chairman Strom Thurmond (R-S. C.) said in a telephone call to President Reagan reporting Rehnquist's confirmation.

Senate Majority Leader Bob Dole (R-Kan.) said that Reagan watched the Senate debate on television and he "characterized some (opponents) as sort of a lynch mob." Dole told reporters that he was not surprised or disappointed by the 33 negative votes. He told Reagan in the call: "The liberals couldn't stand having a conservative as chief justice, but it's going to be good for the country."

Later in the evening, the White House issued a statement by Reagan hailing the Senate action on his nominees.

"Both Chief Justice Rehnquist and Associate Justice Scalia will be strong and eloquent voices for the proper role of the judiciary and the rights of victims; and I am confident they will both serve the court and their country very well indeed," the President's statement said in part.

"This vote in the full Senate is a bipartisan rejection of the political posturing that marred the confirmation hearings," Reagan said.

The most effective attack against the nomination was made by the Leadership Conference on Civil Rights, a Washington coalition representing 185 organizations, which charged two weeks ago that Rehnquist had demonstrated "a 35-year hostility to civil rights." As a law clerk in 1952, he wrote a memo that the "separate but equal" doctrine of racial segregation was "right," although he told the committee hearing that the memo did not represent his personal view.

As a private attorney in Phoenix, Rehnquist had opposed measures to desegregate public housing and the schools and has been accused of aiding Republican efforts to challenge black and Latino voters.

Advocate of 'Restraint'

For his part, Rehnquist said that he should be judged on whether he has "fairly construed the Constitution." As an advocate of "judicial restraint," Rehnquist has said that he believes the Constitution requires that most policy decisions, such as whether women have a right to an abortion or whether private homosexual activity can be limited, should be made by elected officials, not by an unelected Supreme Court.

Rehnquist has voted consistently in favor of police and against criminal defendants, contending that the 14th Amendment's requirement of "due process of law" has been stretched too far to aid criminal suspects. In several cases, he has also questioned whether the Constitution requires that religious symbols or activities be kept out of public schools and off public grounds.

The First Amendment's ban on "an establishment of religion" means only that the government may not favor one religion over another, he has written.

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