VOL. VII, No. 16 NOV. 15, 1971 FORUM 25 CENTS

A Ripon Policy Anary.ir The Weak Constitution of a "Legal Giant" The Senate faces severe limitations in resisting can be alleged to advocate revolution would be black­ a President determined to remake the Supreme Court. listed and outlawed. Wiretapping and other even more The President has the initiative, and as in nuclear sophisticated modes of individual surveillance would strategy, the advantage is with the offense. The Presi­ be extended without judicial review. All but the most dent can merely keep submitting names; the Senate flagrant acts of discrimination and collusion against must mobilize its somewhat cumbersome machinery blacks would be permitted. The courts would return and political resources to investigate, disqualify and to the unedifying business of poring over pomography, reject each one. Now, moreover, in the age of MIRV, and arbitrarily incarcerating improvident writers, pho­ when the President may launch as many as six bombs tographers, and bookstore proprietors. The "third­ at once - or fill the air with chaff and decoys - degree" - extorted confessions and the like - would . the role of the defense is further complicated. It is be effectively authorized. Ever larger numbers of dis­ somewhat difficult to muster a struggle against a senters and other nonconformists who affront the man like William Rehnquist when lined up behind police or marginally violate the law would be im­ him are men like Robert Byrd and women like Sylvia prisoned for long periods. Police brutality and law­ Bacon and when the President maintains his nomina­ lessness, on the other hand, would be condoned. At tions have something to do with "respect for the a time when the government provides an ever larger law" or reducing crime. proportion of available jobs, the firing of dissenters Still we believe it is just as well that we know from federal employment would be legitimized. And what we are doing. Approval of William Rehnquist's finally the Executive, in illicit tandem with the nomination will for the first time give credence to judiciary, would reduce the legislative branch to in­ what has until recently seemed an alarmist fear: that consequence on vital matters of war and peace and we are moving into an era of repression, in which to irrelevance in the always elastic realm of "national the U.S. democracy gives up its most noble enterprise security." And, of course, the real problems of crime - the maintenance of a free and open society. and instability in our society would persist. A scenario may be envisaged. The Commnnist Such developments are not, of course, inevitable. party and other political action orga.ni2ations that They will occur only of the Supreme Court abandons its role as ultimate guarantor of the Constitution and In a letter that he wrote in 1959 Rehnquist, then ~ the legislative branch refuses to recognize the new in private practice in Phoenix, made dear the "dif­ responsibilities such a judicial abdication would im­ ferent interpretation" of the Constitution he had in pose on the Congress. mind: "a judicial philosophy which consistently ap­ But the entire scenario of repression consists of plied would reach a conservative result." measures that Rehnquist, on the record, has strongly and The kind of "conservative" result which Rehnquist explicitly invited; and most of them are not strongly would seek is diametrically opposed to the American opposed by the other three Nixon appointees. So cons.ervative tradition of vigorously opposing the ex­ even if, in view of the President's determination to tension of governmental powers. transform the Court, it proves tactically necessary for the Senate to accept Rehnquist, we want to register To justify the Justice Department's policy of en­ our opinion that he is Nixon's most dangerous nom­ couraging indiscriminate mass arrests of Mayday dem­ inee yet. Younger and smarter than the others, he onstrators an~ bystanders (with the charges against will have a longer and more deleterious impact on them filled In randomly by police who had often our political and social order. never seen the accused or the crime), and of having t~ousands of patently spurious cases litigated with There has been much nonsense written in recent virtually no convictions, Rehnquist invented after the weeks on Rehnquist's good character and legal ex­ fact the doctrine of "qualified martial law." pertise, as if these qualities alone justify confirmation. In fulfilling its Constitutional responsibility for advice . ~ow even if one believes the Capitol was in and consent, however, the Senate does not stand like dire Jeopardy on Mayday, the Rehnquist rationale is legally slovenly. Rehnquist would have us believe that the Bar Association's Committee on the Judiciary, as government can commit countless violations and then a mere judge of ethical and professional credentials. The Senate must also consider the impact of such sanction them by some flip post-facto improvisation. potential appointments on the balance between the . Rehnquist was also a major strategist in the prep­ executive and legislative branches and on the direction aration of the controversial "no knock" and "preven­ of America over the next decades. tive detention" provisions of the D.C. Crime Bill. Powell Endorsed He has strongly asserted a governmental right to fire Applying such standards to the current Supreme empl~yees, eve? ~ co~ered by civil service, when they question AdministratIon War policies. Furthermore Court nominees, the Ripon Society supports, with some reservations, the confirmation of Richmond attorney he has ~~ed ~t the executive has the right to engage In wIretappIng and other electronic surveil­ Lewis Powell, a former President of the ABA. Al­ lance without court supervision as long as it claims though his writings do not display a staunch concern a "national security" justification. If we contend that with preserving individual liberties, his persistent such unaccountable government powers might be­ advocacy of legal services for the poor, his mediating co~e a threat to individual liberty and privacy, Rehn­ role in Virginia school integration controversies, and qwst tells us to rely on the "self restraint" of the his continuing reputation for fairness allay many of Executive - which might be conceivable if we could our fears. We are further reassured by his recent for~t that in recent years the Attorney General's rejection of Rehnquist's view that the Executive has arbiter on such matters was one William Rehnquist. an inherent right to wiretap without judicial review in cases involving the national security. While Powell A Remarkable Fact might strike the balance between individual liberties In only one area in all his career has Rehn­ and governmental powers at a somewhat different quist shown any opposition to the extension of point than we would prefer, he nevertheless recognizes governmental powers. While an attorney in Phoenix the crucial limits on governmental authority. He is he was a vocal and insistent opponent of legislation essentially a man of the law rather than a man of to outlaw racial discrimination in public accommoda­ the Right. tions. It is a truly remarkable fact, worthy of contem­ William Rehnquist, on the other hand, has re­ plation by the Senate, that nowhere in his extensive morselessly allowed his political prejudices to super­ writings has he displayed a keen concern for any in­ cede legal precedent. Unlike Lewis Powell's career dividual liberty except what he quaintly calls the of moderate judicial conservatism, Rehnquist's record "traditional freedom" to discriminate against blacks. does not show a consistent and scrupulous application of legal principles; rather it shows a consistent and Rehnquist now says he has reconsidered his at­ unabashed manipulation of legal rhetoric in the serv­ titude toward the public accommodations ordinance ice of right wing social and political objectives. His of 1964; this is understandable since even Barry Gold­ voluminous public statements and his private com­ water endorsed it seven years ago and it has worked ments of which we are aware, show him to be a thor­ smoothly, contrary to Rehnquist's lugubrious expecta­ oughgoing authoritarian, a nearly absolute believer in tions. Before we rejoice too readily, however, we executive supremacy over the legislature, and a slack should note that he has only endorsed the local or­ reconstructionist of the constitution. dinance, not the Civil Rights Bill of 1964, and that Rehnquist's authoritarian bent is not tempered by in .1965 and 1967, virtually alone among prominent judicial conservatism. Unlike such believers in judical Anzonans he opposed other civil rights legislation. restraint as the late Justice Felix Frankfurter and for­ It would be easy to compile an equally disturb­ mer Justice John Marshall Harlan, Rehnquist is a mili­ ing record of Rehnquist's views on the role of the tant judicial activist, who explicitly rejects the doctrine Senate in foreign policy. An exponent of what Sena­ of stare decisis. Writing in the Harvard Law Record in tor Mathias calls the theory of the Optional Congress, 1959 Rehnquist stated: "It is high time that those crit­ he has seemed eager to eliminate what few powers ical of the present Court recognize with the late Charles Congress has managed to retain in this era of execu­ Hughes that for 175 years the Constitution has been tive supremacy in the international realm. Suffice it what the judges say it is. If greater judicial self­ to say that he has consistently and erroneously main­ restraint is desired, or a different interpretation of tained that the President has the power under the the phrases 'due process of law' or 'equal protection Constitution to commit U.S. troops to war across na­ of the laws; then men sympathetic to such desires tional boundaries without seeking Congressional ap­ must sit upon the high court." proval, and that possessing this power, the President 1911 ELECTION REPORTS The End of the Southern Strategy On the night after Election Day, coalition if, like Shafran, they delib­ paign and his program for the state 1971, a sheet metal worker who erately alienate the state's black - was tested at the polls. In an had come up from Arkansas many voters while ignoring the real needs election with almost nothing else years before sat in a Northern VIt­ and interests of most of their white on the ballot, some 40 percent of ginia restaurant and talked about constituents. the state's voters turned out and his hero, Henry Howell. approved the corporate tax by more "He's a wonderful man," said Last Hope than a 2-to-1 margin. The result this white Virginian, telling how Meanwhile, the last hope that meant that the state of Florida might the members of his union local in white Southern Democrats would at last provide government services the District of Columbia took up a flee to the GOP was laid to rest commensurate with its wealth. collection for Howell earlier in the in Mississippi, the only place where Askew's vote of confidence, fall. "And you know what he did? such a development was ever even Howell's coalition, and even Wall­ He sent us a letter, saying he was remotely possible. Democrat WLl­ er's moderate majority might have going to bring more industry into liam Waller, with only black in­ been achieved by Republican can­ Virginia, so we wouldn't have to dependent Charles Evers for op­ didates or office-holders; the op­ go to D.C. to get work." position, eschewed the racism that portunities have been present for It was the kind of position might have been expected and some time, and seizing them would that any Republican candidate could mounted a moderate campaign that not have meant violating any tra­ have taken - but across the South brought him a remarkable 75 per­ ditional Republican principles, only in 1971, others were saying and cent majority including both blacks the latter-day tenets of the South­ doing the things that won elections. and whites. Waller seems certain ern strategy such as racism, elitism, In Virginia, Henry Howell, talk­ to reunite the black and white fac­ and extreme solicitude for the ing about consumer protection, re­ tions of the Mississippi Democratic Southern business establishment. sponsive government, and the "lit­ party, perhaps before the 1972 elec­ The scattered returns from the 1971 tle man," reassembled the coalition tion, leaving the Mississippi GOP elections suggest that the GOP has that nearly won him the Democratic more of a minority than ever. totally misread the forces at work gubernatorial nomination in 1969 In Florida, the voters vindicated in Southern society, and that the - blacks, poor whites, union mem­ Democratic Governor Reubin As­ party may have forfeited political bers, urban liberals and young kew's judgment that responsive gov­ control of the region to a new gen­ people - and was elected as an ernment, not race, was the major eration of leaders, mostly Demo­ independent to the office of Lieu­ concern of Floridians. Askew's pro­ crats, who have perceived and tenant Governor. posal for a corporate income tax sought to meet the real needs of its Meanwhile, Howell's opponents - the foundation of his 1970 cam- citizens. - Republican George Shafran and Democrat George Kostel - alter­ nated between talking about race Convention City and talking about nothing. Shafran, who had introduced an anti-bus­ ing bill in the last session of the state legislature, and KosteI, who Wilson Wins Mayoralty had voted for it, harped on the is­ sue that had traditionally been used San Diego, now California's sec­ tion to the legislature in 1966. to divide and distract Southern ond largest city and the site for After graduating from Berkeley voters. But even in the year of the the 1972 GOP national convention, Law School, he served as a cam­ bus, with massive desegregation elected a new mayor November 2, paign aide to Richard Nixon in taking place in Richmond, Roanoke, as Pete WLlson, a moderate three­ his bid for the California governor­ Lynchburg, Petersburg, Alexandria, term Assemblyman, amassed over ship. WLlson then held positions and his hometown of Norfolk, 60 percent of the vote against ex­ on the State and San Diego County Howell - whose impassioned lead­ City Attorney Ed Butler, a Demo­ GOP Central Committees. In the ership had killed Shafran's bill - crat. Wilson, an ex-Marine, who legislature, he has been a leader in never wavered from his strong sup­ is young-looking for his 38 years, environmental protection legislation port for civil rights. Nevertheless, appealed to voters tired of the rate - spearheading a campaign for his coalition held together. fixing scandals that implicated in­ the preservation of the California cumbent mayor Frank Curran last coastline by creation of a coastal Holton Vindicated year. Butler, as city attorney, had commission which would act as Howell's victory thus could be successfully defended the indicted overseer for all coastal development. viewed as a vindication of the racial city officials. Wilson serves on the President's moderation espoused by Republican Wilson's victory automatically Citizens Advisory Commission on Governor Linwood Holton, even makes him a major figure in state­ Environmental Quality. though the H~ton-backed candi­ wide Republican circles - and per­ In addition, he served as the chair­ date, Shafran, ran a poor third in haps a threat to veteran conserva­ man of California's first legislative the balloting. Mter all, it was es­ tive Republicans who have their committee devoted to housing and sentially the Howell coalition, plus eyes on the governorship and other urban affairs and introduced the traditional Republicans, that elect­ statewide offices. Factory-Built Housing Law which ed Holton in 1969. But Virginia WLlson has been a rising star in now serves as the model legislation Republicans will never reclaim that the California GOP since his elec- for the nation. free trade and an understanding approach toward Japan which must have shaken some of his labor sup­ People in Polities port. • Constance Dean Armitage, 51, of Spartan­ burg, South Carolina is the new president-elect of • George Romney has reiterated his commit­ the National Federation of Republican Women. At ment to an open communities policy. In responding the 1968 national convention, Mrs. Armitage was Sen­ to the October FORUM analysis of his tenure at HUD, ator Strom Thurmond's floor manager and worked Komney said, "The President's policies will not tole­ with Thurmond and Senator John Tower on the plat­ rate racial discrimination in housing direct or indirect form committee. and call for the use of housing progress to overcome • As Congressman Paul N. ("Pete") McCloskey the effects of past and present discrimination." Several moves up in the New Hampshire polls (28 percent of weeks later, Romney outlined his goal to disperse fed­ Republicans now prefer him to Nixon in Manchester, erally subsidized low income housmg throughout me­ compared to 3 percent name recognition just two tropolitan Washington, D.C. in a speech before the months ago), the President's advisers are at last con­ area's Council of Governments. sidering strategies of response. One close Presidential • Long-time National Committeewoman, Tina assistant declares that if McCloskey's intense cam­ Harrower, 45, intends to resign shortly. Mrs. Harrow­ paigning succeeds in New Hampshire, Nixon will enter er was a Rockefeller delegate in 1968 and a leading every primary across the country to prove his broad moderate in the state of Connecticut. Connecticut Sen­ appeal, ator Lowell Weicker's choice for the interim appoint­ • On resigning as New York City's deputy may- ment is Babette Ransohoff, 67, of Stamford, the woman 01.> RicIm:d R. Aurelio. made it clear that if John Mrs. Harrower replaced in 1965. Weicker's choice sur­ Lmdsay did not accept his predetermined recommenda­ prised many Connecticut moderates since Mrs. Ran­ tion to seek the presidency, he would shift and work sohoff was a Goldwater delegate in 1964. for another Democratic presidential candidate. It would • Jack Kemp, the freshman Republican Con­ appear that for the last year, Aurelio was using John gressman from Buffalo, is already looking over Jacob Lindsay to realize his own ambition. Javits' Senate seat. In October, Kemp held a gala • The former director of HEW's Office of Civil :ji100 a plate dinner in his own honor. Over 1200 Rig~ts! Leo~ E. Panetta, has resigned from the Lindsay people attended, and it's hard to believe that the whole admirustratlon. Panetta, who was Executive Assistant kitty will go into a mere Congressional campaign. to the Mayor for Intergovernmental Relations was Guest speaker was Spiro Agnew, who called Kemp unable to find his own niche in the city gove~ent, "one of the brightest stars in Washington and for and z:eportedly felt !hat ~e other mayoral assistants whom I predict an exciting and brilliant future." The were mterested only m gettmg a certain Democrat into future: if Javits retires in 1974, look for Kemp to be the White House by 1972. Panetta will now turn his a candidate for the Senate nomination. talents to a Southern California law practice and to • James Edwards has replaced Howard Cohen setting up a nationwide Children's Legal Defense Fund. in HEW as the Deputy Assistant Secretary for Legis­ • Conservative John Birch Society Republican lation. Edwards will be responsible for HR 1, the John G. Schmitz - President Nixon's own congress­ Administration's welfare reform proposal. Cohen has man - has suspended support of the President over moved over to the Environmental Protection Agency the Peking visit and is working to take an unpledged to be head of legislative liaison there. Califo~a delegation to the 1972 GOP nominating • Senators Kennedy and Jackson and Muskie conventlon and even Mayor Lindsay came to Buffalo to cam­ paign for the city's Democratic mayor, Frank A. Sedita, Minnesota Dinner The sponsors of Ripon's Ninth Anniversary Din­ who was running for Erie County Executive against ner, to be held in Minneapolis December 4 are: ()lyde youthful Republican Edward V. Regan. The voters, Allen, city councilor, Bloomington; Judson Bemis, pres­ however, were unimpressed with the big names and ident. Bemis Company, Inc.; Mildred Denike, former gave the election to Regan, who hopefully will give 2nd District chairwoman; Rudy Boschwitz. national committeeman; Ben Boo, mayor of Deluth; Plierce GOP moderates a power base in the western end of Butler III, a St. Paul attorney; Aubrey Dirlam, speak­ the state. , "~ er of the House of Representatives· George DIxon, • Postmaster General Winton Blount has re­ president of the First National Bank' of Minneapolis; signed - probably to join in a three-way GOP Sena­ Arlan Erdahl, Secretary of State; WIllfam Frenzel, U.S. Congressman, 3rd District; James G. Goetz, for­ torial primary in Alabama. The May primary (the mer lieutenant governor; Phllip Harder, former presi, first in recent history for the GOP) already has two dent of the Minneapolis Urban Coalition; Douglas entries: James D. Martin - elected to the House Head, former Attorney General; Mary Hoffman, for­ in 1964 as a Goldwater Republican, loser in a bid for mer president of the National Republican Workshop· Stanley Holmquist, majority leader, State Senate; Davtd the governorship in 1966 - and Bert Nettles, a 35- Krogseug, State RepUblican Chainnan; AIf Me Landon, year-old moderate Republican state representative from presidential nominee, 1936; Ernest LIndstrom, major­ Mobile. In a three-way race, Blount would probably ity leader, State House of Representatives; Rhoda occupy center ground. Lund, national committeewoman; Jeanne Lnukinen, Secretary, Minnesota Republican Party; Malcolm • President Nixon's China policy is overwhelm­ Moos, president, University of Minnesota; Senator ingly favored by the nation's corporate executives, ac­ Bobert Packwood; State Senator George PIllsbury; cording to the Gallagher President's Report, except Senator Richard Schwelker; Edson W. Spencer, that 87.5 percent would go further than the President executive vice president, Honeywell, Inc.; Emily Ann Staples, co-convenor, Minnesota Women's Po­ in liberalizing trade with China and other Communist Iital Caucus; Lu Stocker, chairwoman, Minnesota Re­ countries. At a time when the Gallup poll for the publican Party and Wheelock Whitney, president, first time shows a Democratic plurality among business­ Dain, Kalman and Quail, stockbrokers. men and professionals, foreign economic policy may be an arena where Nixon could score points with this influential segment of the electorate, if he can over­ THE RIPON SOCIETY INC is a Republican research and I • policy organization whose come the new mercantilist sentiments in the Treasury members are young business. academic and professional men and women. It has national headquarters in Cambrldge, Massacausetts, Department. chapters In thirteen cities, National Associate members throughout In this regard it is important to note that' the the fifty states, and several affiliated groups of subchapter status. The Society is supported by chapter dues, individual contribu­ business press, including Fortune and the Wall Street tions and revenues from its publications and contract work. Journal, strongly advocate early removal of the 10 THE RIPON FORUM is. published semi-monthly by the Ripon Society, Inc., 14a Eliot Street percent import surcharge. Fortune's Sanford Rose and Cambridge, Massachusetts 02138. Second class postage rates paid former Kissinger aide J. Fred Bergsten believe that the at Boston, Massachusetts. Contents are copyrighted CCl 1971 by the Administration overstated the crisis in our trade bal­ Ripon Society, Inc. Correspondence addressed to' the EdUor Is welcomed. ance, which was artificially exacerbated by businesses In publishing this magazine the Ripon Society seeks to provide anticipating the dock strike and trade and monetary a forum for fresh Ideas, well-researched proposals and for a sp!rtt of criticism, innovation, and Independent thinking within the Re­ restrictions. One of the dangers, it is said, is that publican Party, SUBSCRIPTION RATES are $10 a year, $5 for students, service­ the Treasury analysis could become a self-fulfilling men, and for Peace Corps, Vista and other volunteers. Overseas prophecy as other countries adapt to new competitive air mail, $10 extra. Advertising rates on request. Please allow five weeks for address changes. conditions while the U.S. insulates its inefficiencies. Editors: George GUder, Evelyn Ellis. Meanwhile, in the November 8 Wall Street Jour­ ContributinlJ Editor: Howard L. Reiter. nal, "Hubert Humphrey made an incisive pitch for