Dershowitz on Rehnquist

[RJLipkin at aol.com]

In a message dated 9/10/2005 10:41:32 PM Eastern Standard Time,  
jfnbl at earthlink.com writes:

I'm not  sure what your problem is. I'm dead serious. I accurately catalogued 
 Dershowitz's evidence of antisemitism. I applied the rules of evidence 
because  they are designed to evaluate the reliability of evidence -- they are not 
mere  formalities or technicalities. Their application to Dershowitz's 
evidence lent  itself to ridicule because his evidence is ridiculous.
         It's truly  unfortunate when the pellucid needs explanation.  I'll 
try a brief  explanation, without any genuine expectation of success, but as 
it's said hope  springs eternal. 
 

Are the rules of evidence  the appropriate form of "proof" on a list of 
constitutional law scholars?   Should we dismiss evidence of the framers' intention 
as hearsay? Or perhaps  apply Rule 11 to Jeffersonian objections to the Alien 
and Sedition Acts? Should  we insist on applying the rules of evidence when 
discussing, as historians  do, the character of, say, Aaron Burr, or the 
alleged racism of Abraham Lincoln.  The rules of evidence generally are and should 
be designed to prove culpability  and liability in a court of law, not deny, 
let alone disprove, speculation on a  List of constitutional law teachers and 
scholars about the character  and alleged racial and religious prejudice of an  
influential Chief Justice of the United States. That such a distinction  must 
be stated is certainly a chief feature of "my" problem.
 
        Most important, some List  members, as well as some American 
citizens, have a special and certainly a  legitimate reason to be sensitive (and 
alert) concerning possible anti-Semitism.  I would think it an elementary moral, 
and certainly a collegial, response for  fellow List servers to respect that 
reason.  Such respect doesn't require,  in any way at all, capitulating to 
charges of anti-Semitism or  from criticizing the arguments supporting those 
charges. But it certainly  requires restraining oneself from the indulgence of 
issuing the rather  gratuitous and condescending admonition to fellow members to 
pretend to be  lawyers, at least when discussing the possibility of the late 
Chief Justice's  alleged anti-Semitism.  
 
        Incidentally, I for one am  not a big fan of jokes about "the 
minister, the priest and the rabbi who went  fishing...." If one is, so be it; but a 
proper appreciation that one's  "sense of humor" in this regard might not be 
universal would counsel the  wise to think twice before suggesting that such 
"jokes" are harmless on a List  such as this. Nor am I a big fan of rules 
stifling debate, but  avoiding gratuitous remarks and avoiding projecting one's 
"sense of  humor" on other members seems a reasonable request, one that I suspect 
should  not need to made.
 
        And now I end my  participation in this most unfortunate and unhappy 
exchange.
 
Bobby


 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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