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Opinion: Uncivil Disobedience


Published August 17, 2005 at 4:00 p.m.

Last summer I found myself sipping wine on a porch with a woman who had met William Rehnquist at a soiree in Greensboro, where the Supreme Court chief justice summers. "Bill" was lovely, she said, gracious, funny and "so brilliant!" How could anyone dislike such a person?

Easy, said I, and then outlined a career devoted to maintaining America's status quo circa 1864 -- the minority opinions in Brown v. Board of Education and Roe v. Wade; the leadership in halting Florida's 2000 vote recount, disenfranchising thousands of poor, black citizens; the streamlining of death-row appeals, expediting executions.

Of course, Bill and the woman had discussed none of this. Institutional racism and lethal injection rarely come up over martinis on Caspian Lake. Gentility is much prized in those lovely homes, which may be why Rehnquist says he did not know of the covenant on his, prohibiting sale to persons of "the Hebrew race." Properties he has owned in Virginia and Arizona also had deeds excluding minorities. America's highest guardian of equal rights claims he was ignorant of those, as well.

But why should he know? While illegal and unenforceable now, such covenants are also unnecessary. Jews own houses in Greensboro, to be sure, but the price of the real estate, and the social atmosphere, still insulate residents from unwanted encounters with pretty much anyone they don't want to encounter. That includes the hoi polloi whose lives -- and deaths -- they have the power to shape.

And the hoi polloi somehow get the message. When the justice gave a reading at the Galaxy Bookstore in Hardwick, even this surly Hebrew stayed away, fearing her venom might embarrass the bookseller, a friend. The honored guest was spared embarrassment in the bargain.

Thus protected, Rehnquist's class can relax, manifesting the behavior that so charmed my Hardwick interlocutor: civility.

Judging from the reaction to John Roberts, Rehnquist's former clerk and President Bush's nominee to the Supreme Court, Congress and the press are as seduced by civility as the lady on the porch. The New York Times ran a front-page photo showing Roberts in a red tie, hands folded, hair impeccably parted, grinning. He looked shy and a little goofy, like the kind of good kid the young Andy Rooney used to play.

The pundits say it will be hard to find a chink in such a nice guy through which to drive objections to his confirmation. Not chink enough, apparently, is the aid he gave the Reagan and Bush I administrations as they weakened protections for workers and the environment and reined in the Voting Rights Act and other remedies to discrimination. Not damning enough are opinions such as that in a case of sex-based funding inequalities in a prisoner-training program. "If equal treatment is required" under Title IX (which guarantees equal educational funding), Roberts wrote, "the end result in this time of tight state prison budgets may be no programs for anyone." That is, for any men.

Commentators have noted that Roberts' private communications are less friendly than his public face. His memos are telling. When the American Jewish Committee opposed a bill stripping the Supreme Court of jurisdiction over school prayer, he shut them down. "Does [this] succeed in saying nothing at all?" he wrote in a note attached to a draft response.

Another memo suggested that the Martin Luther King Center won funds only because of King's widow's "political ties."

Through it all, Roberts counseled civility. For example, he advised Reagan Attorney General William French Smith to praise Mrs. King's work -- and give her no money.

Twice in his nominating speech, Bush used the word civility: first, describing Judge Roberts' qualifications -- "experience, wisdom, fairness and civility" -- and then, challenging the Senate to conduct the confirmation process "with fairness and civility." Indeed, some of Roberts' critics worry that Senate Judiciary Committee ranking minority member Pat Leahy will give the president what he wants, because the senator is temperamentally too civil to face the nominee down.

I don't care if Leahy is a gentleman or a boor, as long as this Vermont printer's son speaks for ordinary Americans, and does not defer to a brother in a Washington's men's club.

And I don't care if John Roberts is nice or not, in public or in private. Franklin Roosevelt was not nice. Neither were Malcolm X nor Elizabeth Cady Stanton.

"Fairness and civility": Bush coupled the words. But fairness and civility don't always go together. Indeed, in a Rehnquist or a Roberts -- or a gentleman slaveholder or colonial administrator -- civility can mask unfairness. Politeness can paper over acts promoting injustice. And a tyrant can be kind to his dog.

I'm a pacifist, but when I hear that word civility, I reach for my gun. Because civility belongs to the privileged, and its decorousness makes confrontation look like petulance, unreason or violence.

Those who have not been invited to the party on the lake sometimes have to crash it. The Voting Rights Act and Title IX were the fruits of such rudeness. They are also just and necessary.

I should have gone to the Galaxy that night. In polite company, I should have subjected Rehnquist to something every judge, whether in traffic court or the Supreme Court, needs regularly to suffer: the brunt of a citizen's uncivil liberties.