Dershowitz on Rehnquist

Fri Sep 9 09:11:34 PDT 2005

Not speaking ill of the dead is certainly a value that tempers 
discussion among family and friends, but that doesn't exactly describe 
the function of this list.  If family and friends of the late Chief 
Justice paricipate, presumably they know that as a controversial public 
figure he drew flak as well as praise.  They can either ignore what 
displeases them or point out the errors of the critics, not call them 
"imbeciles."

Elevating the principle of not speaking ill of the dead to the point 
where it stifles discussion among people not attending the funeral is a 
misuse of the principle.  It smacks of an attempt to stifle dissent from 
the family view because of an allegedly superior value, which I doubt it 
is.  It's a bit like a president saying, "Now is not the time to point 
fingers," after he's been found inattentive at the switch in the face of 
a disaster that's been years in the making.  If not now when it's on the 
mind, when?  After it's too late?

rs

Chambers, Henry wrote:

>Tough call.  I am not sure I agree.  If one believes that the late Chief
>Justice was not "an insensitive racist," fairness would seem to dictate
>that one defend him rather than ignore vociferous claims to the
>contrary.  If one believes that the late Chief Justice was "an
>insensitive racist," duty might call that person to not hold their fire
>as others eulogize him as a swell guy.
>
>Of course, we tend to speak in overly fond terms about people right
>after they pass.  Do scholars have an obligation to be somewhat churlish
>and not do that?  
>
>My mom always told me, "do not speak ill of the dead."  Of course, she
>did not put a time limit on the restriction.    
>
>-Hank 
>
>Henry L. Chambers, Jr., Professor of Law
>University of Richmond School of Law
>28 Westhampton Way
>Richmond, VA 23173
>804-289-8199
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Earl Maltz
>Sent: Friday, September 09, 2005 9:30 AM
>To: Mark Graber
>Cc: conlawprof at lists.ucla.edu
>Subject: Re: Dershowitz on Rehnquist
>
>May I suggest that, at this time, we cease to even dignify Dershowitz's 
>comments with further discussion.  Nobody has to love Chief Justice 
>Rehnquist, and some (or even many) of the members of this list might 
>believe that he was an insensitive racist, and those who believe these 
>things after an appropriate interval.  But to make this kind of vicious
>ad 
>hominems attack at a time that his family is still grieving strikes me
>as 
>outside the conventions of civilized discourse.  I just don't think such
>an 
>attack should be discussed further in a semi-public forum.
>
>At 09:00 AM 9/9/2005 -0400, you wrote:
>  
>
>>I do not often agree with Jim Henderson, but I confess that I also wish
>>Dershowitz had listened to his mother.  Both in this piece and in his
>>book on Bush v. Gore, Professor Dershowitz relies heavily on rumors
>>    
>>
>that
>  
>
>>he informs us have solid foundations.  Maybe that is reasonable
>>journalism, I'll leave that to Stuart taylor and others on this list to
>>consider.  But as academics, particularly academics in elite
>>universities, we ought to be able to cite our sources, and not publish,
>>except in very rare circumstances, when we cannot.
>>
>>MAG
>>
>>    
>>
>>>>><JMHACLJ at aol.com> 9/9/2005 7:35:24 AM >>>
>>>>>          
>>>>>
>>Roe v. Wade brought me to the law.  The justices dissenting in that
>>case
>>offered, perhaps falsely, the hope that our constitutional ship could
>>be
>>salvaged, though with great labor and over time.  Perhaps, in another
>>generation,
>>the decision in Dred Scot drew young idealists to the law.  So,  my
>>early
>>impression of Rehnquist was heroic.  With respect to the abortion
>>decisions
>>themselves, he never acted in a way to taint my frank admiration for
>>his utter
>>rejection of the non-constitutional decision-making of Roe and its
>>unaborted
>>progeny.
>>
>>On the other hand, knowing that the role of the Chief in majorities in
>>
>>assigning opinions, I was disappointed with his choice of JP Stevens to
>>write  the
>>Court's majority opinion in Hill v. Colorado.  Given that he  could
>>have
>>assigned the opinion to anyone in the majority, I have always been
>>perplexed by
>>his choice of the justice most openly hostile to the application of
>>the First
>>Amendment in the context of public protests provoked by  Roe.  And if
>>Dershowitz wanted to make a candid assessment of  Rehnquist's
>>decisions, which he only
>>purports to do with his toss off  line regarding the absence of any
>>decision
>>of significant contribution, that  would certainly be appropriate,
>>especially
>>later in the symposia that will,  undoubtedly, be convened in
>>commemoration of
>>Rehnquist's life and  service.
>>
>>What is indecent, offensive, and ungentlemanly about Dershowitz's
>>rambling
>>jeremiad is not any frank and honest laundry list of cases in which
>>Rehnquist
>>took positions (remember, at least in the portion of the piece
>>circulated
>>here, there was no such list).  No, what went out of the bounds of
>>propriety was
>>Dershowitz's tally of indictments from outside the body of  Rehnquist's
>>
>>opinions.  Unanswered, Dershowitz's  mean-spirited, cowardly snipe will
>>reflect
>>poorly on the legal profession,  on the professorial profession and on
>>humanity.
>>So I will not leave his  loutish behavior unnoted.  Chief Justice
>>Rehnquist
>>was not yet  decently buried and Dershowitz began his unloading his
>>unseemly
>>version of  history.
>>
>>Of course, some of his accusations had played out previously, either
>>during
>>the first, or the second, of the Chief's confirmation hearings:  I
>>remember
>>the particular ire of Ted Kennedy over Rehnquist's attribution of views
>>to
>>Justice Jackson when questioned about the Plessy/Brown memo.
>>
>>Perhaps Rehnquist, even in life, would never have taken an action
>>against
>>Dershowitz.  If so, that would be the Rehnquist who compelled Jerry
>>Falwell  to
>>buck up and take the sniping from Hustler magazine, citing in the
>>opinion to
>>the role of caricature in political cartooning.  In any event,
>>Dershowitz
>>chose a safe time to accuse Rehnquist of being a closet Nazi, or a
>>closet  moron.
>>
>>I remember, in my youth, watching re-runs of the Bowery Boys.  One
>>scene
>>always sticks in my mind, Leo Gorcey and Huntz Hall were near the back
>>of  a
>>florist's delivery truck when a beautiful, large arrangement fell of
>>the back  of
>>the truck.  Knowing that it would be wrong to take the arrangement
>>without
>>first giving the truck driver the opportunity to come retrieve his lost
>> load,
>>they stood beside the street and whispered, under the noise of the
>>neighborhood and the traffic passing by, "Hey mister, you dropped your
>>flowers!"  Of
>>course the point was to show a nod toward proprieties, mores,  morals,
>>before the
>>taking of unfair advantage.
>>
>>Here, when Dershowitz might have said these things to the Chief in
>>life,
>>when it bore the risk of an action for defamation, his decision to
>>shout them as
>>the sad processional of the Chief's funerary entourage smacks  more of
>>the
>>ugly funeral disruptions by the "God Hates Fags" crowd than of any
>>well-thought
>>explication.  Of course, if, as seems likely from the  product,
>>Dershowitz's
>>object was to create controversy and to attract  attention to himself,
>>
>>"Mission Accomplished."
>>
>>Jim Henderson
>>Senior Counsel
>>ACLJ
>>_______________________________________________
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>
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>_______________________________________________
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>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
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