Hansel and Gretel

"It is unheard of for two nominees to go like Hansel and Gretel to the Supreme Court." Senator Birch Bayh was talking about Lewis F. Powell Jr. and William H. Rehnquist (TIME, Nov. 1), the two Supreme Court nominees who were being jointly considered by the Senate Judiciary Committee. Bayh, veteran of the Haynsworth and Carswell wars, and the other liberals sought to separate the nominations because Powell was clearly a shoo-in, while Rehnquist was considered somewhat vulnerable. Nixon loyalists on the committee parried the maneuver. After five days of hearings and 827 pages of testimony, they arranged under the rules to have Powell's nomination also put off for one week. Then the deliberations will pick up where they left off.

There seems to be little doubt about the swift, sure confirmation of Powell, 64. A Richmond lawyer, he sailed smoothly through his relatively brief appearance before the committee. Mainly a judicial conservative, Powell has a distinguished legal record and once served as president of the American Bar Association. During his questioning he emphasized the work he had done for liberal causes, especially his efforts to keep Virginia schools open in opposition to the official state policy of "massive resistance" to integration during the 1950s. Consequently, the committee liberals --Bayh, Edward Kennedy, Philip Hart of Michigan and John Tunney of California--treated Powell gingerly.

Rational Balance. Rehnquist was another matter. Although a brilliant attorney, Rehnquist, 47, has often offended liberal sensibilities. As chief legal counsel for the Justice Department, he alienated many with his hard-line approach in such matters as the Washington Mayday demonstrations. He was questioned closely by the liberals about his efforts in his home town of Phoenix, Ariz., to keep Negroes legally barred from some public places. His cautious reply: "With respect to the public-accommodations ordinance, I think my views have changed." He was adamant on busing, stating that the practice "for the purpose of achieving a racial balance where you do not have a dual school system is not desirable."

The most virulent attacks on Rehnquist came from civil rights leaders. Clarence Mitchell, chief Washington lobbyist for the N.A.A.C.P., poured it on: "The Rehnquist nomination raises grim warnings. Through that nomination the foot of racism is placed in the door of the temple of justice. The Rehnquist record tells us that the hand of the oppressor will be given a chance to write opinions that will seek to turn back the clock of progress. We hope the nomination will be rejected because it is an insult to Americans who support civil rights."

Joseph Rauh of the Americans for Democratic Action characterized Rehnquist as a "lawyer without compassion for blacks and other minorities" and one who "believes in unchecked Executive power, whether it is security wiretapping or the surveillance of individuals." Rauh's testimony was so vitriolic that when he intimated that Rehnquist had failed to disavow any "connections" with societies similar to the John Birch Society, Rauh was sharply rebuked by Senator Kennedy. (The false report of the nominee's Birch membership came from the Associated Press, and had already been scotched when Mississippi Senator James Eastland, chairman of the committee, presented an affidavit from Rehnquist disclaiming any such membership.)

Without Cause. Conservative members seized on the tone of the testimony to gain sympathy for Rehnquist. Eastland described the lawyer as someone who was being "persecuted without cause by those who are opposed to him."

Liberal members were particularly frustrated in their attempts to pin Rehnquist down on his legal and social philosophy. Like Powell, Rehnquist refused to answer many such questions either on the grounds of lawyer-client privilege or the possibility that any such answer might compromise later opinions as a Supreme Court justice. As Bayh mournfully conceded: "I don't believe that you can keep a guy off the Supreme Court on the basis of hearsay." Indeed, though liberals will probably stage a Senate floor battle, it is likely that President Nixon's nominee will be confirmed.

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