Dershowitz on Rehnquist

Paul Finkelman paul-finkelman at utulsa.edu
Sat Sep 10 20:47:16 PDT 2005


I have been told that in recent years the late Chief Justice used to 
lead people in singing Dixie at circuit meetings; this may not be 
objectively racist, but given that Dixie was the "fight song" (so to 
speak) of opponents of integration, is does suggest a lack of 
sensitivity towards miniorities.   Is is something we would not expect 
from a man who was sworn to interpret the law for all Americans.

One might argue, again as a matter of sense of propriety, that a Chief 
Justice would afford to have a new deed written with a restrictive 
covenant removed.  

Neither of these are "sins" or "crimes."  Both illustrate why many 
Americans did not see him as a Chief Justice for all of us, but only for 
some of us.

Paul Finkelman

-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at utulsa.edu




JFN wrote:

> 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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>
>------------------------------------------------------------------------
>
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