Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
Conservatives for Kagan
by Stuart Taylor, Jr
Some conservatives plausibly argue that Solicitor General Elena Kagan would be the kind of liberal activist justice that they deplore.
There is plenty of material to support that claim — and also some material that cuts against it — in the tens of thousands of pages of documents involving Kagan’s work in the Clinton White House from 1995 to 1999 that are being released in batches.
And there are more manifestations of liberal ideology in the memos that Kagan wrote in 1987 and 1988 as a law clerk for Thurgood Marshall, a liberal activist justice who had — before taking the bench — been the most accomplished lawyer of the 20th century.
Not to mention Kagan’s efforts — much-decried by Republicans — to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the law excluding gays from the military.
Still, Kagan’s nomination — unlike last year’s nomination of then-Judge Sonia Sotomayor — has been received with good will bordering on enthusiasm by some leading conservative academics.
Part of the reason is that Kagan’s brand of liberalism appears to be less aggressive in terms of social-engineering ambitions and less doctrinaire than that of some other possible Obama nominees.
But the main reason is that these pro-Kagan conservatives see in the former law professor and Harvard Law School dean a quality they consider quite rare in liberal academia, a place that some conservative professors characterize as rife with a closed-minded condescension toward unfashionable ideas that is all the more irksome coming from people who style themselves to be paragons of open-minded reflectiveness.
Healthy Debate
by Stuart Taylor, Jr.
Two conservative federal judges have now voiced cautiously sympathetic views on legal challenges to the 2,400-page health-care law that President Obama signed into law in March. But such preliminary skirmishes shed little light on whether the Supreme Court will in the end strike down the law, a law that raises a completely novel legal issue: can Congress require millions of individuals to buy a commercial product (in this case health insurance) in the name of regulating interstate commerce.
Judge Roger Vinson of the federal district court in Pensacola, Fla., suggested during a two-hour hearing on Sept. 14 that he was unlikely to dismiss a major challenge to the law by officials of 20 states, almost all of them Republican, plus three other plaintiffs. The plaintiffs object to provisions including the new law’s "individual mandate," an unprecedented requirement that people not covered by employer-based plans must buy comprehensive health insurance or face monetary penalties. It is to take effect in 2014.
The lawsuits-more than 15 so far-argue that Congress has no such power. Last month, federal district Judge Henry Hudson, of Richmond, Va., rejected a Justice Department motion to dismiss a similar suit by Virginia’s attorney general. But some leading legal experts, especially defenders of the new law, confidently predict that if any federal appeals court strikes it down, the Supreme Court will step in to uphold it, with some predicting a margin as lopsided as 8 to 1.
The Twilight of ‘Don’t Ask, Don’t Tell’
by Stuart Taylor, Jr.
The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first. The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 19
The federal court decision last Thursday holding unconstitutional the 1993 "don’t ask, don’t tell" policy that excludes openly gay people from the military may well presage a Supreme Court ruling in 2012 killing that policy once and for all. Unless Congress kills it first.
The main reason: public assertions by both Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, and President Obama that the anti-gay policy is not now necessary for unit cohesion-the reason given in 1993 for excluding openly gay soldiers-and undermines military readiness.
The tradition of judicial deference to military and congressional judgments on military matters, which was cited by previous federal court decisions in favor of "don’t ask, don’t tell," offers little support for a discriminatory policy that the military’s civilian and uniformed leaders no longer defend and, indeed, seek to repeal. Especially when one House of Congress has already voted to repeal it, as the House of Representatives did in May.
To be sure, many in the military disagree with Obama. These include Marine Corps Commandant Gen. James Conway, who opposes any repeal, and to some extent the chiefs of the Army, Navy, and Air Force, who have urged a go-slow approach. But Conway retires this month. And Obama is Commander-in-Chief of the Armed Forces.
Amid Partisan Bickering, Kagan Is Narrowly Confirmed
by Stuart Taylor, Jr.
The outcome was never in doubt. But the narrowness of the 63–37 margin by which the Senate confirmed Elena Kagan as Supreme Court’s 112th justice this afternoon would stun a Rip Van Winkle who had slept through the rising partisan rancor that has poisoned judicial confirmations at all levels in recent years.
The vote in 1993 to confirm Justice Ruth Bader Ginsburg—who had a considerably more liberal-activist background than Kagan—was 96 to 3. The votes to confirm Justice Stephen Breyer in 1994, Chief Justice John Roberts in 2005, and Justice Sonia Sotomayor last year were 87–9, 78–22, and 68–31, respectively. (With the 50-year-old Kagan joining Ginsburg and Sotomayor, there will be three women on the court for the first time ever.)
Of the five new justices to arrive between the stormy 52–48 confirmation of Clarence Thomas in 1991 and that of Kagan, only Bush nominee Samuel Alito had a smaller margin than hers. That was 58–42, in 2006. Only four Democrats supported Alito, and at least one of those has expressed regret.
Democrats accuse the 36 Republican Senators who voted no on Kagan (as did Democrat Ben Nelson of Nebraska) of simple obstructionism, for opposing a well-qualified, relatively moderate nominee.
Indeed, many experts predict that Kagan may move the court’s ideological balance marginally to the right. While calling herself politically “progressive,” she is widely seen as less liberal than the man she replaces, 90-year-old Justice John Paul Stevens.
“They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution,” Senate Judiciary Committee chairman Patrick Leahy complained during the three-day, off-and-on floor debate.
Supreme Immodesty: Why the Justices Play Politics
by Stuart Taylor, Jr
Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?
And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?
The justices strenuously deny voting their own policy preferences. So, are they insincere?
Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.
Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.
Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences — and precedents, which can be overruled.
But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.
First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.
Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.
Kagan Hearings Are All About the Midterms
by Stuart Taylor, Jr.
As Elena Kagan’s hearings ground through their third day, with confirmation virtually assured, viewers learned little that was new about the nominee. Mostly they saw senatorial skirmishes to fire up the conservative and liberal bases in an election year.
Republican senators tried to paint Kagan as political and deceptive on issues including so-called partial-birth abortion. But her detailed answers sounded convincing. And her questioners moved on with little followup, to the frustration of conservative activists who thought a more effective case against Kagan could have been made.
Meanwhile, Democratic senators spent their time airing gripes against the “conservative activist” Roberts Court and other pet themes.
The partial-birth-abortion issue came up when Republican Sen. Orrin Hatch of Utah told Kagan that her role in writing Clinton White House documents about the “particularly gruesome” procedure “bothers me a lot” because it could involve “politicization of science.” The Kagan documents involved a draft paper by a panel of the influential American College of Obstetricians and Gynecologists (ACOG) on whether the procedure that critics call partial-birth abortion is ever necessary to protect the health of the woman. The initial ACOG draft, which it shared with the White House, said that the panel “could identify no circumstances under which this procedure … would be the only option to save the life or preserve the health of the woman.”
Double Standards on Display in Kagan Hearings
by Stuart Taylor, Jr.
Roughly since dinosaurs walked the earth, Supreme Court confirmation hearings have featured the spectacle of Republicans and Democrats alike rearranging their principles depending on the party of the nominating president and the nominee. The hearing on Elena Kagan, who completed her testimony Wednesday with other witnesses scheduled to testify late Thursday, has been no exception. On the importance of precedent, on “judicial activism,” on whether past political allegiance is a mark against a judicial nominee, and more, what one might think are neutral principles seem to vary depending on senators’ political allegiances.
In his questions–speeches, really–to Kagan this morning, for example, Rhode Island Democratic Sen. Sheldon Whitehouse seemed mightily outraged by the Roberts court’s overruling of two precedents to reach its 5-4 decision in January striking down a longstanding federal ban on campaign spending by corporations in Citizens United v. Federal Election Commission. But neither Whitehouse nor any of his Democratic colleagues has been heard to complain of decisions by the more liberal justices to overturn conservative precedents (the 2003 ruling striking down laws against gay sex and overruling a major 1986 decision called Bowers v. Hardwick comes to mind).
Are Kagan Hearings a Waste of Time?
by Stuart Taylor, Jr.
Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue–and tried to teach viewers a lesson–about the need to tamp down the bitter liberal—conservative battles that have poisoned judicial confirmations.
Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.
Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.
And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit– she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.
Sessions Pounds Kagan on Military
by Stuart Taylor, Jr.
The Senate Judiciary Committee’s top Republican spent much of his allotted 30 minutes for questioning Elena Kagan on Tuesday morning by painting her as antimilitary. Sen. Jeff Sessions suggested President Obama’s Supreme Court nominee had created a hostile environment for the military by disfavoring military recruiters when she was dean of Harvard Law School earlier this decade.
But Kagan gave no ground. She politely contradicted Sessions even as he bluntly challenged her responses. Kagan repeatedly stressed that she had always revered the military and those who serve in it and had made this clear as dean by regularly honoring students who had served or planned to serve in the military.
She also emphasized that she had violated no law and had insured military recruiters ample access to Harvard law students and to the campus–even as she limited the law school’s assistance to military recruiters. This, she said, was in keeping with a longstanding law-school policy disfavoring any employer that discriminated against gay people.
Kagan’s testimony was truthful and precise. But whether the Sessions attacks resonated with an American public that has high respect for men and women in uniform remains to be seen.
In earlier questioning, Sen. Patrick Leahy, the committee’s Democratic chairman, used softball questions to elicit testimony by Kagan that recent decisions recognizing a constitutional right to own guns for self-defense are “settled law.” This was significant because the court’s three more-liberal members and Justice John Paul Stevens, who retired effective Monday, implied in dissenting opinions in Monday’s big gun-rights decision that they would like to overturn it and a 2008 decision that had set the stage for it. Kagan’s testimony sounded fairly close to a commitment not to vote to overturn those decisions.
Graham, the Gentleman, at Kagan Hearings
by Stuart Taylor, Jr.
Sen. Lindsey Graham, the Judiciary Committee’s least partisan member, injected a distinctive and salutary element Tuesday afternoon into a dreary confirmation process drenched in partisanship, yet devoid of real drama. The South Carolina Republican engaged Supreme Court nominee Elena Kagan in a good-natured dialogue–and tried to teach viewers a lesson–about the need to tamp down the bitter liberal—conservative battles that have poisoned judicial confirmations.
Then Graham tried to engage Kagan in another dialogue about the need for Congress and the president to work together on bipartisan legislation regulating indefinite detention of suspected enemy combatants outside the criminal process.
Graham had considerable success in both ventures–far more success than other senators of both parties who doggedly pressed Kagan to agree with their views on issues ranging from abortion, guns, and campaign finance to arbitration and environmental laws. The secret of Graham’s success with Kagan was that he focused mostly not on specific legal issues but rather on harms done by the ever-more-partisan polarization of Congress and of our broader political culture.
And the tone set by the senator allowed for some much needed levity in the committee chambers. For example, when Graham asked Kagan where she had been last Christmas–the day that a terrorist nearly succeeded in blowing up an airliner over Detroit – she said, “You know, like all Jews, I was probably at a Chinese restaurant.” The hearing room erupted in laughter.