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NOMINATION OF JUSTICE WILLIAM HUBBS REHNQUIST
HEARINGS before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE
SECOND SESSION on the NOMINATION OF JUSTICE WILLIAM HUBBS REHNQUIST TO BE
CHIEF JUSTICE OF THE UNITED STATES
July 29, 30, 31, and August 1, 1986
Statement of James J. Brosnahan to the United States Senate Judiciary
Committee
August 1, 1986
My name is James J. Brosnahan. I was born and raised in Massachusetts,
graduating from Boston College in 1956. After my wife and I graduated from
the Harvard Law School in 1959, we moved to Phoenix, Arizona. Between April
10, 1961, and February of 1963, I served as an assistant United States
attorney, prosecuting federal criminal cases in Phoenix. In 1963 I left
Arizona and moved to San Francisco, California, where I also served as an
assistant United States attorney prosecuting criminal cases. I am now in
private practice in San Francisco.
I am appearing today at the request of the Committee. I have never
volunteered any information about the events of 1962. My position is that
those who are interested in those events are entitled to accurate answers
from me as to what I know and specifically the members of this Committee are
entitled to the testimony of any witness if they request it.
On Election Day in November 1962, in Phoenix, Arizona, several assistant U.S.
attorneys were assigned the task of receiving complaints alleging illegal
interference with the voting process. As complaints came in, an assistant
U.S. attorney accompanied by an FBI agent would be dispatched to the precinct
involved. On that day the United States Attorney's Office in Phoenix received
numerous complaints from persons attempting to vote in precincts in South
Phoenix. At that time the population of south Phoenix was predominantly black
and Hispanic and voted overwhelmingly Democratic. The Office of United States
Senator Hayden also received complaints on that day. The complaints we
received alleged in various forms that the Republican challengers were
aggressively challenging many voters without having a basis for that
challenge. One of the complaints frequently voiced on that day was that
Republican challengers would point out a black or Hispanic person in the
voting line and question whether he or she could read. (At this time it was
my understanding that Arizona law required that a voter be able to vote in
English.) According to the complaints received at the U.S. Attorney's Office,
these challenges were confrontational and made without a factual basis to
believe the person challenged had any problem reading. The U.S. Attorney's
Office was advised that because the challenges were so numerous, the line of
voters in several precincts grew long and some black and Hispanic voters were
discouraged from joining or staying in the voters' line. It was also reported
that at one of the precincts there was a fist fight as a result of a
confrontation between a Republican challenger and another person.
Based on interviews with voters, polling officials, and my fellow assistant
U.S. attorneys, it was my opinion in 1962 that the challenging effort was
designed to reduce the number of black and Hispanic voters by confrontation
and intimidation.
I received a complaint on Election Day and went with an agent of the Federal
Bureau of Investigation to a polling place in south Phoenix. The polling
place had a long line of voters, several tables at which sat challengers from
both parties, and an official whose job was to preside over allowing people
to vote. There may have been one or two other officials or clerks. When we
arrived, the situation was tense. At that precinct I saw William Rehnquist,
who was serving as the only Republican challenger. The FBI agent and I both
showed our identifications to those concerned, including Mr. Rehnquist. We
both talked to persons involved and the FBI agent interviewed anyone having
information about what had occurred at the polling place. In fairness to
Justice Rehnquist, I cannot tell the Committee in detail what specific
complaints there were or how Mr. Rehnquist responded to them. The complaints
did involve Mr. Rehnquist's conduct. Our arrival and the showing of our
identifications had a quieting effect on the situation and after interviewing
several witnesses, we left. Criminal prosecution was declined as to all
participants in the incidents at various precincts that day. Prosecution was
declined as a matter of prosecutorial discretion. Our investigation was
pursuant to the following criminal statutes:
18 U.S.C. § 594, which made it a misdemeanor to intimidate, threaten,
coerce...or attempt to intimidate, threaten, or coerce...any other person for
the purpose of interfering with the right of such other person to vote.
18 U.S.C. § 241, which made it a felony for two or more persons to conspire
to injure, oppress, threaten, or intimidate any citizen for exercising his
civil rights.
I have read the testimony and letter supplied by Justice Designate William
Rehnquist to this Committee in 1971. On pages 71 and 72 of his testimony, he
describes his role in the early 1960's as trying to arbitrate disputes at
polling places. That is not what Mr. Rehnquist was doing when I saw him on
Election Day in 1962. At page 491 of the 1971 Record in his letter, William
Rehnquist stated: "In none of these years did I personally engage in
challenging the qualifications of any voters." This does not comport with my
recollection of the events I witnessed in 1962 when Mr. Rehnquist did serve
as a challenger.
William Rehnquist was well-known to me in 1962. The Phoenix legal community
was a lot smaller than than it is now. Mr. Rehnquist had clerked on the
United States Supreme Court, which was a distinction that few Phoenix lawyers
had at that time. There is no question that the person to whom I spoke at the
polling place was William Rehnquist.
In 1971 when Mr. Rehnquist was nominated to be a Justice of the Supreme
Court, I recalled the 1962 incident. No one contacted me about it. I did not
know until recently that this Committee had actually inquired into the voting
problems of those years.
