Tuesday, September 6, 2005


HatTip to James Taranto's Best of the Web Today. One reason I won't pay for my future child's tuition for Harvard Law and encourage them to go to Yale Law: Alan Dershowitz. Just kidding. Anyway, as you know, Chief Justice William Rehnquist died of cancer this past Saturday. Fox News Channel's Alan Colmes interviews Professor Alan Dershowitz for his thoughts and reflection and Dershowitz provides some additional commentary that was unnecessary and poorly timed. Taranto comments afterwards:

Colmes: This is a Fox News alert. Earlier tonight in suburban Virginia, Chief Justice of the Supreme Court William Rehnquist passed away of thyroid cancer at his suburban Virginia home surrounded by his three children and his family. And joining us now to talk about it, famed attorney Alan Dershowitz. Mr. Dershowitz, thank you so much for being with us.

Dershowitz: Well, thank you.

Colmes: And how will this change the court, and what will William Rehnquist's legacy be?

Well, William Rehnquist was one of the most judicially active judges. He was a judicial activist in the--in every sense of that term. He struck down more federal statutes than almost any other sitting judge. He intervened often in cases where there was an adequate state ground. You know, you hear so much about judicial conservative, judicial activist. He was a judicial activist by any statistical count. By any measure, he was more active than most of the so-called liberal justices. A striking example--

Colmes: But would it be fair to say that a conservative might call him an acti--or a liberal might call him an activist and a conservative who might tend to agree with him would call him a constitutionalist?

No. I think you'd have to call him an activist, whether you are conservative or liberal. That is, he struck down congressionally enacted statutes because he didn't think that they comported with federalism. Take the most striking example. He had written for 30 years that the equal protection clause only applies in racial matters--it doesn't apply to aliens, it doesn't apply to age, it doesn't apply even to women; it only applies to race, that the 14th Amendment was written--the equal protection clause was written to protect blacks. Then comes along Bush v. Gore, and he joins the decision striking down the Florida count on the ground that it denied equal protection for a chad to be counted differently in one district than another--something that totally violated everything he had written for the previous 25 years. He was a Republican justice--

Colmes: But would you compare the--

Dershowitz: --and his vote could always be counted on by the Republicans.

Is there a precedent for what will be known as the Rehnquist court? How would you characterize that court, and are there precedents historically for that? The Warren court was called activist a couple of decades earlier.

Dershowitz: He was much more activist. And I think the Rehnquist court was never the Rehnquist court. He moved more toward the center as he became chief justice and as he had Scalia and Thomas on his right flank and of course most of the rest of the court in the center or on his left flank. It--the decisions of Justice Rehnquist are not taught in law schools as great decisions. He'll be remembered primarily for his votes rather than for the content or quality of his decisions. And it's consistent throughout his life. He started his career by being a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting.

Sean Hannity: All right--

Dershowitz: He had a restrictive covenant in his own lease which precluded the sale to Jews.

Hannity: Let me go, uh--

There were so many things in his background that were extremely right-wing.

At this point, Hannity cut Dershowitz off and went to another guest. At the end of the hour, Hannity pointedly omitted Dershowitz when he thanked the guests who'd appeared to comment on Rehnquist's death.

Wow, what can one say about Dershowitz's appalling performance? For one thing, his eagerness to paint Rehnquist as a "judicial activist"--not only "much more activist" than the Warren court but indisputably so!--shows that this is an argument the left has lost. Rather than defend, say, Roe v. Wade (in which Rehnquist dissented) as a justifiable work of judicial activism, they invent tendentious redefinitions of the term in a transparent attempt at judicial jujitsu. By Dershowitz's lights, Roe wasn't "activist" at all because it struck down a state law rather than a "congressionally enacted statute."

Dershowitz makes other assertions that are either dishonest or ill-informed. Rehnquist didn't believe that the equal protection clause applied to women? Actually, in U.S. v. Virginia (1996), Rehnquist wrote a concurring opinion in which he expressly endorsed the majority's holding that the Virginia Military Institute's all-male military policy violated equal protection. Justice Antonin Scalia was the lone dissenter.

"His vote could always be counted on by the Republicans"? Tell that to Ted Olson. No, we're not talking about Bush v. Gore, in which Olson represented the president-elect, but about Morrison v. Olson (1988), in which Olson unsuccessfully challenged the independent counsel statute. Again, Scalia was the lone dissenter.

Granted, that ruling later came back to bite the Democrats, but presumably even Dershowitz isn't a sufficiently wild-eyed conspiracy nut to suggest that Rehnquist somehow knew a decade in advance that he would preside over an independent-counsel-inspired impeachment trial of a Democratic president.

Finally, to respond to the death of a respected public servant by disparaging his intelligence and calling him a "thug" seems plain hateful. Democratic politicians presumably are clever enough not to spit on Rehnquist's grave, but they may well direct similar invective at whomever President Bush chooses to succeed the chief.

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