WASHINGTON — The existence of covenants barring Jews and nonwhites from buying or leasing two homes owned by Supreme Court Justice William H. Rehnquist led Democratic foes of his nomination as chief justice to intensify their charges Thursday that he is insensitive to civil rights.
Republican defenders countered that Rehnquist's critics were creating a "red herring," citing his testimony that he was unaware of the restrictive covenants in the deeds on the houses and pointing out that such covenants have been unenforceable since a 1948 Supreme Court decision. Rehnquist completed his testimony to the committee Thursday.
Despite the disclosures of the deed restrictions on a summer home Rehnquist bought in Greensboro, Vt., in 1974 and on a house he sold in Phoenix in 1969, several Senate aides predicted that he will easily gain the Senate Judiciary Committee's recommendation with only two to four of the panel's 18 members opposing him.
'You Will Be Confirmed'
Sen. Strom Thurmond (R-S. C.), chairman of the Republican-controlled panel, said in dismissing Rehnquist as a witness: "You will be confirmed. This committee will vote for you. The Senate will vote for you."
The hearings are scheduled to wind up today with questioning of as many as 10 witnesses on charges that Rehnquist, as a county Republican official, took part in harassing and intimidating black and Latino voters in Phoenix in the early 1960s--charges that Rehnquist has denied.
Rehnquist has insisted that challenges of voters on grounds of illiteracy were legal at that time, although literacy tests later were banned. He conceded Thursday that "there were some abuses on the part of our poll watchers," a group that Rehnquist said he helped organize.
The restriction on Rehnquist's Vermont home, which he bought for $65,000, provides that "no feet of the herein conveyed property shall be leased or sold to any member of the Hebrew race."
The Phoenix property, which Rehnquist owned from 1961 until he came to Washington in 1969, included a restriction written in 1928 providing that no lot in the subdivision could be sold, transferred, leased to or inhabited by "any person not of the White or Caucasian race." The restriction was to last for 99 years, or until the year 2027.
Both restrictions were discovered by FBI agents conducting a routine background investigation of the nominee. Rehnquist, who said he was "amazed" to learn of the Vermont restriction a few days ago, described it as "quite obnoxious" and said he planned to ask his lawyer in Vermont to have the language removed.
On the Phoenix property, Rehnquist told Sen. Edward M. Kennedy (D-Mass.): "I simply can't answer whether I read through the deed or not. One relies on a title company." He added that the whites-only covenant, "while very offensive . . . has no legal effect."
"This is the biggest red herring of all," shouted Sen. Orrin G. Hatch (R-Utah), a leading Rehnquist supporter on the committee. "Everyone understands" that such covenants are illegal. "I think it's ridiculous to make such a brouhaha."
"I don't know if it's ridiculous at all," Sen. Howard M. Metzenbaum (D-Ohio) said.
Justice Department Official
"This individual was a Justice Department official, a legal counsel of the Justice Department" in 1969 when he sold the Phoenix property, Kennedy said.
Sen. Patrick J. Leahy (D-Vt.), who first questioned Rehnquist about the restriction on his summer home, told him Thursday: "There's nothing in your background to suggest anti-Semitism. I'm glad you're going to rewrite that covenant," Leahy said, adding that its existence "doesn't suggest anti-Semitism" on Rehnquist's part.
Rehnquist drew support on this point from another committee Democrat, Sen. Dennis DeConcini of Arizona, who said: "I wonder how many of us on this committee could say we never owned property" that carried such restrictions.
Senators seemed to skirt around the sensitive matter of Rehnquist's health, never asking him directly about his use of a prescription sleeping pill to counter chronic lower back pains--medication that resulted in his hospitalization in December, 1981.
Review by Physician
The reason for the delicate handling became apparent when Thurmond announced that an agreement had been reached for "an independent physician" to review Rehnquist's medical records and speak with his doctor, reporting back to the committee before its scheduled vote Aug. 14.
"While Justice Rehnquist is perfectly willing to answer questions about his health, the committee has reached an understanding that his health records shall remain confidential," Thurmond said.
Under questioning by Sen. Howell Heflin (D-Ala.), Rehnquist said he would not have accepted President Reagan's nomination if he felt that his health was not up to the task.
On another matter, Senate Minority Leader Robert C. Byrd (D-W. Va.) read Rehnquist a passage from a book by John D. Ehrlichman, a former top aide to President Richard M. Nixon and a convicted Watergate conspirator, which praised Rehnquist for having handled "tough questions . . . on mixed issues of law and politics" for the White House.
Rehnquist, then a top Justice Department attorney, showed "sensitivity to the President's objectives and to the practicalities of our situation," Ehrlichman wrote, without citing specific matters.
Rehnquist replied that he had sought to find lawful ways for the White House to accomplish some of its objectives but told Byrd he did not recall writing any legal opinions for Ehrlichman dealing with such controversial subjects as wiretapping, leaks of information, surveillance of U.S. citizens or intelligence matters.