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On the personal side, the FBI discovered in a routine check that Rehnquist had bought two houses that were subject to discriminatory deed restrictions. The deed to his current summer home in Greensboro, Vt., which he bought in 1974, includes a clause barring sale of the house to "anyone of the Hebrew race." The restrictive clause was not part of the standard printed document, but had been typed in specifically. Rehnquist never signed the deed and said he was only recently aware of the restriction's existence. He said he found the restriction "obnoxious," as well as unenforceable under a 1948 Supreme Court ruling.
It was also disclosed that Rehnquist once owned another home, in Phoenix, whose deed included a covenant prohibiting transfer to anyone not of the "Caucasian race." Rehnquist could not recall having seen the deed, which he never signed. In response to sharp questioning by Kennedy, Rehnquist characterized the terms of the deed as "very offensive."
Democrats on the committee tried to obtain a number of memos written by Rehnquist from 1969 to 1971, when he was head of the Justice Department's Office of Legal Counsel. The position was a sensitive one during the Nixon era; Rehnquist was writing on such subjects as civil liberties, government surveillance of radical groups and wiretapping shortly before the Watergate scandal broke. The Reagan Administration refused to allow the committee to see the documents, citing executive privilege. Kennedy angrily characterized the refusal as "stonewalling, pure and simple." By week's end the Democrats did not have enough votes to subpoena the documents, but committee members continued to negotiate with the Justice Department for limited access.
Rehnquist's Democratic opponents have focused on specific points, searching for outright personal misconduct. Their opposition to Rehnquist, however, is basically along ideological lines: he is the most ardent and consistent conservative on the court. Some scholars, including Harvard Law Professor Laurence Tribe, have urged a forthright challenge to appointees on ideological grounds, as was often the case in the 19th century. Today, however, the Senate tends to look for a smoking gun. Thus the Democrats have chosen to steer clear of an ideological battle this time around, relying instead on digging into some distasteful but probably not disqualifying incidents in Rehnquist's past.