Dershowitz on Rehnquist

[Brynn]

Alan Dershowitz: Telling the Truth About Chief Justice Rehnquist *

Alan DershowitzMon Sep 5, 1:16 AM ET

My mother always told me that when a person dies, one should not say
anything bad about him. My mother was wrong. History requires truth, not
puffery or silence, especially about powerful governmental figures. And
obituaries are a first draft of history. So here’s the truth about Chief
Justice Rehnquist you won’t hear on Fox News or from politicians. Chief
Justice William Rehnquist set back liberty, equality, and human rights
perhaps more than any American judge of this generation. His rise to
power speaks volumes about the current state of American values.

Let’s begin at the beginning. Rehnquist bragged about being first in his
class at Stanford Law School. Today Stanford is a great law school with
a diverse student body, but in the late 1940s and early 1950s, it
discriminated against Jews and other minorities, both in the admission
of students and in the selection of faculty. Justice Stephen Breyer
recalled an earlier period of Stanford’s history: “When my father was at
Stanford, he could not join any of the social organizations because he
was Jewish, and those organizations, at that time, did not accept Jews.”
Rehnquist not only benefited in his class ranking from this
discrimination; he was also part of that bigotry. 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.

As a law clerk, Rehnquist wrote a memorandum for Justice Jackson while
the court was considering several school desegregation cases, including
Brown v. Board of Education. Rehnquist’s memo, entitled “A Random
Thought on the Segregation Cases,” defended the separate-but-equal
doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson.
Rehnquist concluded the Plessy “was right and should be reaffirmed.”
When questioned about the memos by the Senate Judiciary Committee in
both 1971 and 1986, Rehnquist blamed his defense of segregation on the
dead Justice, stating – under oath – that his memo was meant to reflect
the views of Justice Jackson. But Justice Jackson voted in Brown, along
with a unanimous Court, to strike down school segregation. According to
historian Mark Tushnet, Justice Jackson’s longtime legal secretary
called Rehnquist’s Senate testimony an attempt to “smear[] the
reputation of a great justice.” Rehnquist later admitted to defending
Plessy in arguments with fellow law clerks. He did not acknowledge that
he committed perjury in front of the Judiciary Committee to get his job.

The young Rehnquist began his legal career as a Republican functionary
by obstructing African-American and Hispanic voting at Phoenix polling
locations (“Operation Eagle Eye”). As Richard Cohen of The Washington
Post wrote, “[H]e helped challenge the voting qualifications of Arizona
blacks and Hispanics. He was entitled to do so. But even if he did not
personally harass potential voters, as witnesses allege, he clearly was
a brass-knuckle partisan, someone who would deny the ballot to fellow
citizens for trivial political reasons -- and who made his selection on
the basis of race or ethnicity.” In a word, he started out his political
career as a Republican thug.

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

Rehnquist’s judicial philosophy was result-oriented, activist, and
authoritarian. He sometimes moderated his views for prudential or
pragmatic reasons, but his vote could almost always be predicted based
on who the parties were, not what the legal issues happened to be. He
generally opposed the rights of gays, women, blacks, aliens, and
religious minorities. He was a friend of corporations, polluters, right
wing Republicans, religious fundamentalists, homophobes, and other bigots.

Rehnquist served on the Supreme Court for thirty-three years and as
chief justice for nineteen. Yet no opinion comes to mind which will be
remembered as brilliant, innovative, or memorable. He will be remembered
not for the quality of his opinions but rather for the outcomes decided
by his votes, especially Bush v. Gore, in which he accepted an Equal
Protection claim that was totally inconsistent with his prior views on
that clause. He will also be remembered as a Chief Justice who fought
for the independence and authority of the judiciary. This is his only
positive contribution to an otherwise regressive career.

Within moments of Rehnquist’s death, Fox News called and asked for my
comments, presumably aware that I was a longtime critic of the late
Chief Justice. After making several of these points to Alan Colmes (who
was supposed to be interviewing me), Sean Hannity intruded, and when he
didn’t like my answers, he cut me off and terminated the interview. Only
after I was off the air and could not respond did the attack against me
begin, which is typical of Hannity’s bullying ambush style. He is afraid
to attack when there’s someone there to respond. Since the interview,
I’ve received dozens of e-mail hate messages, some of which are overtly
anti-Semitic. One writer called me “a jew prick that takes it in the a**
from ruth ginzburg [sic].” Another said I am “an ignorant socialist
left-wing political hack …. You’re like a little Heinrich Himmler! (even
the resemblance is uncanny!).” Yet another informed me that I
“personally make us all lament the defeat of the Nazis!” A more
restrained viewer found me to be “a disgrace to the Law, to Harvard, and
to humanity.”

All this, for refusing to put a deceptive gloss on a man who made his
career undermining the rights and liberties of American citizens.

My mother would want me to remain silent, but I think my father would
have wanted me to tell the truth. My father was right.

[Audreyvgs]

thanks, i probably wouldnt have seen that.

[Brynn]

I was surprised Jon Stewart hadn't riffed on it yet, but I guess there's that respect for the dead thing we've all got to observe. All the rapsodic tributes to him were starting to get to me, and it reminded me of when Reagan died.

[Hermione]

I don't care what this dude has to say. I have always been a fan of Rehnquist. I am deeply saddened by his death.

[trisherina]

You know. It's one of those Hebe things.

[Audreyvgs]