11 The Geraldo Rivera Show, May 27, 1997, quoted in Alan M. Dershowitz, Sexual McCarthyism 14 (1998).
12 Paula Jones’s lawyers have subsequently revealed that the Jones lawsuit could have been settled at one point for no money, with just a simple apology from President Clinton that made it clear that Paula Jones did not do anything wrong in the hotel room.
13 For a full account, see my Sexual McCarthyism 17 (1998).
14 Clinton v. Jones, 520 U.S. 681 (1997).
15 Testimony Before the Judiciary Committee’s Impeachment Hearings, December 1, 1998.
16 Juliet Eilperin, “Both Sides Harden Impeachment Views; Widening of Probe Irks Democrats,” Washington Post, December 2, 1998.
17 “Historically I think we can all agree that false statements have considerable variation and degree. The core concept of perjury grows out of the Ten Commandments, ‘bearing false witness,’ a term that consisted in accusing another falsely of a crime. Clearly the most heinous brand of lying is the giving of false testimony that results in the imprisonment of somebody who is innocent. Less egregious, but still quite serious, is false testimony that results in the conviction of a person who may be guilty, but whose rights were violated in a manner that would preclude conviction if the police testified truthfully.… The least culpable genre of false testimony are those that deny embarrassing personal conduct of marginal relevance to the matter at issue in the legal proceeding.”
18 Quoted in Joseph Telushkin, Jewish Humor: What the Best Jewish Jokes Say About the Jews 21 (1992).
19 Alan M. Dershowitz, “Top 10 Legal Blunders,” George, April 1999, 56.
20 Ibid.
21 Ibid.
22 Manhattan (United Artists, 1979).
23 The Front (Columbia Pictures, 1976).
24 “Were Julius and Ethel Rosenberg guilty of transmitting American atomic secrets to the Soviet Union in the 1940’s, or were they scapegoats of the cold war whose execution was a grave miscarriage of justice? That both are true is the intriguing argument of [the new book.]” Alan M. Dershowitz, “Spies & Scapegoats,” New York Times Book Review, August 14, 1983.
25 See infra p. 430.
26 Allen v. Farrow, 197 A.D.2d 327, 331 (1994).
27 Alan M. Dershowitz, Chutzpah (1991).
28 Timothy Crouse, “Prosecutor Beyond the Law? Morvillo: His Informant Raided a Bankrupt Firm,” Village Voice, May 15, 1978.
29 I recount this instance of prosecutorial misconduct more fully in The Best Defense 377 (1983).
30 I wrote these words while Morvillo was alive. He has since died.
31 “Ronan Farrow, Son of Mia and Woody, Lands Rhodes Scholarship,” Washington Post, November 21, 2011.
32 Kitty Kelley, His Way: An Unauthorized Biography of Frank Sinatra (1987).
Part IV
The Never-Ending Quest for Equality and Justice
Chapter 20
The Changing Face of Race
1 Martin Luther King, Jr., “I Have a Dream (Washington, D.C., August 28, 1963),” in Martin Luther King, Jr., A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (James M. Washington, ed.) 219 (1990).
2 After President Eliot diminished Harvard’s religious traditions, making Harvard “undenominational,” and introduced College Entrance Examination Board exams in 1905 to attract a geographically more diverse student population, Jewish enrollment skyrocketed. By 1922, Jews made up more than 20 percent of the incoming freshman class. The same was true for other Ivy League schools, such as Princeton and Yale. Columbia University even had a 40 percent Jewish enrollment. This soon changed under President Lowell, who imposed anti-Jewish quotas. Jerome Karabel, The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale and Princeton 119 (2005).
3 DeFunis v. Odegaard, 416 U.S. 312 (1974).
4 Ibid 331–32 (Douglas, J., dissenting).
5 Ibid.
6 As a legal historian described it: “ ‘The future justice attended Whitman College in Washington and not a more prestigious institution because only Whitman offered him a scholarship; when he left for Columbia University Law School, he traveled part of the way on a freight car, alongside sheep. “In a real sense Marco DeFunis … was William O. Douglas, many years earlier, waiting on tables and carrying two other jobs in Walla Walla stores to put himself through school and supported his widowed mother.” ’ Dennis Deslippe, Protesting Affirmative Action: The Struggle over Equality After the Civil Rights Revolution 140 (2012).
7 For this view, see Noah Feldman, Scorpions 322 (2010) (arguing that Justice Douglas developed a jurisprudence of individual rights as a reaction to his tumultuous personal life).
8 This is, of course, not only true for liberal judges. When Justice Alito was asked at his 2006 confirmation hearings about how his Italian immigrant roots influence his judging in immigration cases, he openly admitted, “I do say to myself, ‘You know, this could be your grandfather, this could be your grandmother.’ ”
Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Committee. on the Judiciary, S. Hrg. No. 109–277, at 475 (2006).
9 DeFunis v. Odegaard, 416 U.S. 337 (1974).
10 Ibid. 342.
11 Paul Finkelman (ed.), 1 Encyclopedia of African American History, 1896 to the Present: From the Age of Segregation to the Twenty-First Century 207 (2009) (noting that “in the 1974 and 1978 affirmative action cases, black and Jewish organizations had for the first time taken opposite positions regarding a civil rights issue”).
12 William Bowen and Derek Bok, former presidents of Princeton and Harvard, respectively, found that 80 percent of black students who entered Ivy League colleges in 1989 came from middle- or high-income families, compared to 49 percent of black college-age students nationwide. William Bowen and Derek Bok, The Shape of the River: Long-Term Consequences of Considering Race in College and University Admission (1998).
13 DeFunis received amicus briefs support from four Jewish organizations: the Jewish Rights Council, the American Jewish Congress, the Anti-Defamation League, and the American Jewish Committee.
14 “Jews have deserted the civil rights coalition,” wrote Nina Tottenberg, “because they see the DeFunis case as a matter of quotas, and quotas are anathema to Jews because they have been used for so many centuries to keep Jews out of universities.” Dennis Deslippe, Protesting Affirmative Action: The Struggle over Equality After the Civil Rights Revolution 127 (2012) (quoting Nina Totenberg, “Discriminating to End Discrimination,” New York Times, April 14, 1974).
15 See Alan Dershowitz and Laura Hanft, “Affirmative Action and the Harvard College Diversity-Discretion Model, Paradigm or Pretext?,” 1 Cardozo Law Review 379, 414 (1979) (quoting Michael E. Kinsley, “Admissions Policy: From Dollars to Doughnuts,” Harvard Crimson, January 27, 1971).
16 Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
17 1977 WL 188015 (U.S.) (Appellate Brief) 35–36.
18 Ibid. 37.
19 Ibid. 44.
20 Ibid. 56–57.
21 Ibid.
22 Ibid.
23 Regents of the University of California v. Bakke, 438 U.S. 265, 316 (1978).
24 Ibid. 316–17; 321–24 (appendix to Justice Powell’s opinion).
25 See Alan Dershowitz and Laura Hanft, “Affirmative Action and the Harvard College Diversity-Discretion Model, Paradigm or Pretext?,” 1 Cardozo Law Review 384, n.15 (1979).
26 Furthermore, the policies and actions of Harvard, a private university, are not considered “state action” and therefore not subject to constitutional scrutiny. Ibid. 385 n.17 (citing Krohn v. Harvard Law School, 552 F.2d 21, 25, 1st Cir. 1977).
27 Regents of the University of Southern California v. Bakke, 438 U.S. 265, 316 (1978).
28 According to its dean of admissions, Harvard’s admission rate for legacy children is around 30 percecnt—more than four times the reg
ular admissions rate. Justin Worland, “Legacy Admit Rate at 30 Percent,” Harvard Crimson, May 11, 2011. For a critique of this legacy boost, see Daniel Golden, The Price of Admissions 21–48 (2006).
29 Regents of the University of Southern California v. Bakke 438 U. S. 265, 406 (Blackmun, J., concurring in part).
30 Ibid. 318, n. 53.
31 As my colleagues Henry Louis Gates and Lani Guinier point out: While 8 percent, or 530, of Harvard’s college student body is black, two-thirds of them are children of West Indian immigrants or children of biracial couples rather than African-Americans—i.e., descendants of slaves whose families have been historically disadvantaged by the legacy of Jim Crow laws, segregation, poverty, and inferior schools. By contrast, students of West Indian descent are a “highly motivated, self-selected group”—they often come from wealthy areas, went to private schools, have more highly educated and more affluent parents, and, having encountered less discrimination in their upbringing, they are psychologically less disadvantaged by the stigma of race. As Professor Waters, a sociologist at Harvard, observed: “You need a philosophical discussion about what are the aims of affirmative action.… If it’s about getting black faces at Harvard, then you’re doing fine. If it’s about making up for 200 to 500 years of slavery in this country and its aftermath, then you’re not doing well. And if it’s about having diversity that includes African-Americans from the South or from inner-city high schools, then you’re not doing well, either.” Sara Rimer and Karen W. Arenson, “Top Colleges Take More Blacks, But Which Ones?,” New York Times, June 24, 2004.
32 For a detailed account how Harvard’s quota system was used to exclude Jewish applicants, see Alan Dershowitz and Laura Hanft, “Affirmative Action and the Harvard College Diversity-Discretion Model, Paradigm or Pretext?” 1 Cardozo Law Review 387 (1979).
33 The current dean of admissions at Harvard College, William Fitzsimmons, genuinely seeks diversity and has worked hard to recruit inner-city blacks. But at the time of the Bakke decision this was not nearly as true.
34 Oliver Wendell Holmes, The Common Law, Lecture I: “Early Forms of Liability” (1881).
35 For my evolving views on affirmative action, see also Alan Dershowitz, “Visibility, Accountability, and Discourse as Essential to Democracy,” Albany Law Review 784–87 (2008).
36 Grutter v. Bollinger, 539 U.S. 306, 343 (2003). (“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”)
37 Fisher v. University of Texas, 570 U.S. _ (June 24, 2013). (slip opinion, p. 16).
Chapter 21
The Crumbling Wall Between Church and State
1 U.S. Const., amend. XIV, sec. 1
2 Congress added the words in 1954. Pub.L. 83-396, Chap. 297, 68 Stat. 249, H.J. Res. 243, enacted June 14, 1954.
3 In a public high school in Colorado, some Muslim students substituted the words “one nation under Allah” in the pledge they recited over the loudspeaker. http://www.dailymail.co.uk/news/article-2270944/Rocky-Mountain-High-School-Outrage-high-school-recites-Pledge-Arabic-saying-One-Nation-Under-Allah.html
4 George Washington, Letter to the Hebrew Congregation in Newport, Rhode Island, August 1790.
5 Ibid.
6 Most of the words were borrowed by Washington from the letter written to him by the rabbi of the Touro Synagogue. Moses Seixas, Address to the President from the Hebrew Congregation, August 17, 1790.
7 According to one historian, the big breakthrough for American Jews came in 1973, when Irving Presser, the son of a Lithuanian-born pants presser, became the chairman and CEO of Du Pont Corporation, then America’s largest chemical company and the nation’s oldest corporation. Edward S. Shapiro, A Time for Healing: American Jewry Since World War II 115 (1995).
8 A turning point came in 1968, with the election of Edward H. Levi, the grandson of rabbis, as the president of the University of Chicago. Edward S. Shapiro, “The Friendly University: Jews in Academia Since World War II,” Judaism: A Quarterly Journal of Jewish Life and Thought (Summer 1997).
9 See supra, ch. 20.
10 U.S. Const., Art. VI, par. 3.
11 U.S. Const., amend. I. The third reference to religion in the Constitution can be found in the free exercise clause of the First Amendment. Ibid.
12 When these words were written, they had a clear meaning: The federal government could not make any particular religion the official national one, though states were free to establish a particular church, as several did. The “incorporation” of the First Amendment to the states via the Fourteenth Amendment applied the establishment clause to the states as well.
13 Alan M. Dershowitz, America Declares Independence, 82–84 (2003). Nor would the composer of the original pledge, who was an early socialist. See Greg Beato, “Face the Flag: The Surprising History of the Pledge of Alliance,” Reason, December 16, 2010.
14 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
15 Chris Chunland, “For Shapiro, Sitting Was an Act of Defiance,” Boston Globe, December 6, 1984.
16 “Randolph Student Wants Court to Affirm Her Right Not to Join in Allegiance Pledge,” Boston Globe, April 6, 1985.
17 “Girl Who Wouldn’t Stand for Salute Gets Apology,” New York Times, June 15, 1985.
18 Teague v. Bakker, 35 F.3d 978, 982 (4th Cir. 1994).
19 Quoted in United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991).
20 United States v. Bakker, 925 F.2d 728, 740–741 (4th Cir. 1991).
21 Ibid.
22 “Jim Bakker Freed from Jail to Stay in a Halfway House,” New York Times, July 2, 1994.
23 David Margolick, “At the Bar: Dershowitz Wows ’Em Again! (Is There No Escaping This Guy?)” New York Times, February 15, 1991.
24 See, e.g., Noah Feldman, Divided by God 22 (2005).
25 According to a 2011 Gallup poll, 49 percent of Americans said that they would not vote for an atheist. Lydia Saad, “In U.S., 22% Are Hesitant to Support a Mormon in 2012,” June 20, 2011, available at http://www.gallup.com/poll/148100/Hesitant-Support-Mormon-2012.aspx.
26 Roger Williams, “Mr. Cotton’s Letter Lately Printed, Examined and Answered” (1644), in The Complete Writings of Roger Williams (Samuel L. Caldwell, ed.) 392 (1963).
27 The irony is that the wall was essentially a contribution made by Baptists to America but is now being attacked by many Baptists.
28 Thomas Jefferson to Roger C. Weightman, June 24, 1826, in The Life and Selected Writings of Thomas Jefferson (Adrienne Koch and William Peden, eds.) 666 (1998).
29 Thomas Jefferson, Reply to Danbury Baptist Association, January 1, 1802, in ibid. 307 (emphasis added).
30 T. R. Reid, “Republicans Rue Mecham’s Return; Arizonan’s Maneuvers Embarrassing National Party Leaders,” Washington Post, March 14, 1989.
31 Ibid.
32 Quoted in Alan M. Dershowitz, “Justice O’Connor’s Second Indiscretion,” New York Times, April 2, 1989.
33 Ibid.
34 See Alan M. Dershowitz, Supreme Injustice, 246 n. 67 (2001). See also Eric M. Yoder, Jr., “Justice O’Connor’s Unfortunate Letter,” Washington Post, March 19, 1989.
35 For such an interpretation of Jefferson’s letter, see, e.g., Allen Jayne, Jefferson’s Declaration of Independence: Origins, Philosophy, and Theology 173 (1998).
36 Holy Trinity Church v. United States, 143 U.S. 457, 471 (1892).
37 Actually, recent scholarship suggests that Brewer was not an across-the-board bigot. Some scholars point out that he was involved in the antislavery movement and quite sympathetic to women. See, e.g., J. Gordon Hylton, “The Judge Who Abstained in Plessy v. Ferguson: Justice Brewer and the Problem of Race,” 61 Mississippi Law Journal 315 (1999).
38 Zorach v. Clauson, 343 U.S. 306, 313 (1952).
39 In at least one case, Justice Sutherland said—in pa
ssing—that “we are a Christian people.” But he then quickly added in the same sentence that we are a people who accord “to one another the equal right of religious freedom” (emphasis added). United States v. Macintosh, 283 U.S. 605, 625 (1931). Justices Holmes, Brandeis, Stone, and Hughes dissented. Justice O’Connor failed to mention this case.
40 “Justice Regrets Her Letter’s Use in ‘Christian Nation’ Debate,” St. Louis Post-Dispatch, March 16, 1989.
41 Alan M. Dershowitz, “Justice O’Connor’s Second Indiscretion,” New York Times, April 2, 1989.
42 Walter Mondale, address to B’nai B’rith, Washington, D.C., September 6, 1984.
43 Rick Santorum on ABC’s This Week, February 26, 2012.
44 Even the term “value voters” used during the last few presidential campaigns suggests that nonreligious or secular voters do not have strong moral values. The fact that this derogatory term is uncritically used not only by the religious right but also by the mainstream media shows how successful those in the religious right have become in turning “secularism” and “humanism” into dirty words. Alan Dershowitz, Blasphemy 116–17 (2007).
45 See, e.g., Leviticus 18:22. Interestingly enough, the story of Sodom and Gomorrah, though in many aspects the most obvious passage dealing with homosexuality, has not been interpreted by Jewish and Christian theologians as being about sexual sins but rather as being about inhospitality. John Boswell, Christianity, Social Tolerance, and Homosexuality 93 (2005).
46 The phrase is from the song “Carefully Taught,” in Richard Rodgers, Oscar Hammerstein, Joshua Logan, and James Albert Michener, Rodgers and Hammerstein’s South Pacific 77 (1956).
47 Bowers v. Hardwick, 478 U.S. 186 (1986).
48 Id, at 197.
49 Goodridge v. Dep’t of Pub. Health, 440 Mass. 309 (2003).
50 Alan M. Dershowitz, “To Fix Gay Dilemma, Government Should Quit the Marriage Business,” Los Angeles Times, December 3, 2003.
51 If a woman wants to carry her fetus to term, and someone deliberately aborts it, say by kicking her in the stomach, that should be a serious crime akin to murder.
Taking the Stand Page 68
