NOT THAT OLD CANARD:

Roberts' Ind. Hometown Draws Scrutiny (TOM COYNE and ASHLEY M. HEHER, 8/17/05, Associated Press)

Like many towns across America, the exclusive lakefront community where Supreme Court nominee John G. Roberts Jr. grew up during the racially turbulent 1960s and '70s once banned the sale of homes to nonwhites and Jews.

Just three miles from the nearly all-white community of Long Beach, two days of looting and vandalism erupted when Roberts was 15, barely intruding on the Mayberry-like community that was largely insulated from the racial strife of that era.

It was here that the 50-year-old Roberts lived from elementary school until he went away to Harvard in 1973, and that decade — as well as the rest of his life — is receiving intense scrutiny as the Senate gears up for its Sept. 6 confirmation hearings on President Bush's first Supreme Court nominee. [...]

Roberts' father, a manager at a Bethlehem Steel mill in nearby Burns Harbor, moved the family to Long Beach in the early 1960s.

The family purchased land a few blocks from the beach in 1966 and built an unassuming tri-level house. The Roberts property did not include a racially restrictive covenant, according to LaPorte County deed records, and the restrictions had begun fading away by then.

They've tried trotting out the restrictive covenant issue before, as Orrin Hatch humorously detailed in his book:

In 1986, with the retirement of Warren Burger, President Reagan nominated Justice William Rehnquist to be the next Chief Justice of the United States. Although he had been sitting justice since 1972, when he was appointed by Richard Nixon, and had been praised by Justices William Brennan and Thurgood Marshall as the leading intellect on the Court, Rehnquist’s confirmation was anything but smooth. At the time, I nicknamed it “the Rehnquisition.”

His hearings focused less on the specific decisions he had made on the Court than on matters largely unrelated to his judicial temperament or ability. For days, the nominee was boxed around, forced to answer questions that ranged from the substantive to the inexplicable.

For example, he was questioned about a memorandum he had written in the 1940s, when he was a Supreme Court law clerk for Justice Robert Jackson. In the memorandum, he had explained the Court’s horrible but historic position that “separate, but equal” facilities for African Americans were constitutional. Judge Rehnquist answered by explaining that he was summarizing Justice Jackson’s views on the issue, as he was expected to do in his capacity as a clerk.

One would think that the decisions and opinions of a sitting Supreme Court Justice would be a better indication of his beliefs about civil rights than a memorandum he wrote as a clerk four decades past.

Unsuccessful on this line of attack, Senators Kennedy and Metzenbaum tried to shift the focus to restrictive covenants on two pieces of land, one of which Justice Rehnquist currently owned and the other he had owned some years before. These covenants, which preclude the sale of the land to certain races or ethnic groups, can be found in most deeds to older pieces of property. They are a distasteful reminder of our nation’s discriminatory past. They are also illegal and have been found to be unenforceable by the Supreme Court. Most homeowners are unaware that these covenants even exist, because they are included at the time the deed is first written. The few who are aware of their presence often have little interest in paying the legal costs associated with removing them, since they have no legal effect whatsoever.

The deed for Justice Rehnquist’s vacation home in Vermont contained a restrictive covenant precluding sale to Jews. Similarly a property the justice had once owned in Arizona forbade the sale of the land to someone other than a Caucasian. No one asserted that Mr. Rehnquist had requested that these covenants be included in the deeds. No one claimed he even knew about them. In fact, he did not. Nonetheless, the implication was made that he must implicitly agree with their prohibitions, because he had not had them expunged.

Amazingly, this ridiculously contrived issue hung over the nomination until it was discovered that the deed to former President John F. Kennedy’s home in the elite Washington, D.C. neighborhood of Georgetown also contained a restrictive covenant. Once this awkward fact became public, the issue magically evaporated.

Even Teddy balked at calling his own sainted brother a racist and, if memory serves, it turned out several justices and senators likewise had them on their houses, as President Bush later turned out to have one on a house he bought and sold. They're unpleasant, but just relics and generally unenforceable.

Posted by Orrin Judd at August 18, 2005 12:00 AM