Dershowitz on Rehnquist

[JFN]

At 1:19 PM -0400 9/10/05, RJLipkin at aol.com wrote:
>         I'm not a big fan of either Dershowitz or how our memories 
>typically falter when someone dies, but does anyone have any 
>information about whether the charges Dershowtiz makes about 
>Rehnquist's alleged anti-Semitism are true?  As a Jew, I was 
>extremely troubled to read the accusations.  If demonstrably true, 
>they contribute to a systemic alienation I've experienced since 
>boyhood.  If demonstrably false, Dershowitz should be called on it.
>
>         Moreover, if true, I think it's important to include the 
>evidence in biographies of Rehnquist and it should be studied to 
>ascertain whether this demonstrable anti-Semitism (if and only if 
>adequately demonstrated) might have affected his career as a judge.
>
>Bobby

You need to go back and read the indictment.

The charge of antisemitism rests on three allegations. Let's look at 
the evidence and pretend we're lawyers.

1. Rehnquist only graduated first in his class because Stanford 
discriminated against Jews.

Objection: relevance. The court should note that the accuser also 
graduated first in his class from an institution that discriminated 
against Jews.

2. "When he was nominated to be an associate justice in 1971, I 
learned from several sources who had known him as a student that he 
had outraged Jewish classmates by goose-stepping and heil-Hitlering 
with
brown-shirted friends in front of a dormitory that housed the 
school's few Jewish students. He also was infamous for telling racist 
and anti-Semitic jokes."

Objection: relevance. The alleged event happened 65 years ago. If he 
had been convicted and sentenced it would be inadmissible to 
establish pattern or proclivity.

Objection: hearsay. The witness has no first-hand knowledge, and 
cannot even attribute first-hand knowledge to the unidentified 
classmates "who had known" the accused, but are not alleged to have 
witnessed the offense.

Objection: foundation. We do not know when the alleged goose-stepping 
happened or who was present; and the witness doesn't even know what 
the jokes were, much less where and when and to whom they were told.

Objection: speculation. The witness has no personal knowledge that 
the accused's Jewish classmates were outraged. The mockery of 
goose-stepping Nazis by a WWII veteran is at least ambiguous if not 
presumptively anti-fascist. It was used to humorous effect in the 
1968 production of "The Producers," and no one ever suspected that 
Mel Brooks was antisemitic. For all we know, setting aside the 
witness' speculation, and assuming without any competent evidence 
that the incident actually occurred, the accused had his Jewish 
classmates in stitches.

Objection: Unqualified opinion. The witness has not even examined the 
jokes. The witness has not been qualified as having a sense of humor 
sense of humor, or any ability to tell the difference between 
offensive and funny. If it please the court, we're prepared for voir 
dire. Mr. Dershowitz, have you heard the one about the minister, the 
priest and the rabbi who went fishing....

3. Rehnquist bought a home in Vermont with a restrictive covenant 
that barred sale of the property to ''any member of the Hebrew race."

Objection: relevance. The covenant ran with the property. Rehnquist 
didn't put it there. He could not have enforced it if he wanted to 
and there's no evidence that he ever wanted to. Unenforceable 
provisions in deeds are ignored not redacted. It says no more about 
Rehnquist's racial or religious animosity than it says about the 
countless Jews and blacks who own homes in defiance of the 
restrictive covenants that run with their property.

Objection; inadmissible by stipulation in limine. The same evidence 
was offered in 1986 by Sen. Kennedy during the Chief's confirmation 
hearing, and withdrawn when it was revealed that the Georgetown home 
of the Senator's brother, former President John F. Kennedy, was 
subject to a similarly offensive restrictive covenant.

What is despicable about Dershowitz's indictment is that the proven 
particulars (1 and 3) don't have any relevance to the charge -- they 
don't have "any tendency to make the existence of any fact that is of 
consequence to the determination of the action more probable or less 
probable than it would be without the evidence." The unproven 
particular (2) is wholly unsupported by anything that resembles 
evidence; and even if the conduct were proven you would have to infer 
antisemitic sentiments from a WWII veteran's mockery of Nazi soldiers.

We're down to uncorroborated evidence of reputation in an 
unidentified group who knew him 65 years ago offered by witness who 
displays evident personal animosity. Without more, he's entitled to 
summary judgment and sanctions under Rule 11.

John Noble

At 1:19 PM -0400 9/10/05, RJLipkin at aol.com wrote:
>         I'm not a big fan of either Dershowitz or how our memories 
>typically falter when someone dies, but does anyone have any 
>information about whether the charges Dershowtiz makes about 
>Rehnquist's alleged anti-Semitism are true?  As a Jew, I was 
>extremely troubled to read the accusations.  If demonstrably true, 
>they contribute to a systemic alienation I've experienced since 
>boyhood.  If demonstrably false, Dershowitz should be called on it.
>
>         Moreover, if true, I think it's important to include the 
>evidence in biographies of Rehnquist and it should be studied to 
>ascertain whether this demonstrable anti-Semitism (if and only if 
>adequately demonstrated) might have affected his career as a judge.
>
>Bobby
>
>Robert Justin Lipkin
>Professor of Law
>Widener University School of Law
>Delaware
>
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