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.
Elena Kagan’s ‘Judicial Hero’
by Stuart Taylor, Jr.
In a far-from-conclusive effort to pinpoint Elena Kagan’s place on the ideological spectrum, the media have parsed her Princeton senior thesis, Oxford master’s thesis, law-clerk memos to Justice Thurgood Marshall, subsequent disagreements with him, Clinton White House memos, academic writings, speeches, legal briefs, and more.
But an intriguing clue that is riling up conservative blogs–so far unmentioned in the mainstream media–should somewhat allay liberal fears that Kagan will be a tepid moderate reluctant to advance liberal causes through expansive use of judicial power. The clue is Kagan’s glowing praise in 2006 for Aharon Barak, a world-renowned, retired Israeli Supreme Court justice whose creativity in advancing liberal causes by overturning elected officials’ policies makes Marshall look almost like a champion of judicial restraint. Speaking at a Harvard Law School award ceremony for Barak, then Dean Kagan praised the Israeli jurist as “my judicial hero” and “the judge who has best advanced democracy, human rights, the rule of law, and justice.”
One of America’s best and most nuanced legal minds, Judge Richard Posner, has pointed attention to Barak’s extraordinarily aggressive pattern of sweeping aside the actions of elected officials based on little more than his own policy preferences. In “Enlightened Despot,” an April 2007 New Republic reviewof Barak’s book The Judge in a Democracy, Posner wrote that Barak should be “considered Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.”
Holder’s Promising Interrogation Plan
by Stuart Taylor, Jr.
In 1966, the Supreme Court instructed police, in Miranda v. Arizona, to tell arrested suspects that "you have the right to remain silent." But, in fact, you don’t.
Rather, police — or more to the point of current debate, federal agents interrogating suspected terrorists — can skip the famous Miranda warnings and even use some degree of coercion to extract a confession, all quite legally. Indeed, you can even be jailed for refusing to answer questions after being granted immunity from any prosecution.
The problem for law enforcement — especially in the terrorism context — is that any statements obtained from an arrested suspect without Miranda warnings, or by directly coercing an involuntary confession, ordinarily cannot be used against the person in a criminal case.
A less familiar but perhaps more important problem is that current federal law also bars the use of most statements made more than six hours after a suspect’s arrest without first taking him to a magistrate judge for a "presentment" hearing. In a terrorism incident, such an interruption could derail a promising effort to get information about co-conspirators and planned attacks.
The combined effect is to force officials to make an unnecessarily difficult choice: They can put terrorism suspects through the kind of prolonged, uninterrupted interrogation that is their best hope of preventing future attacks. Or they can maximize the chance of a successful prosecution. But they can’t count on doing both, unless they get lucky.
This dilemma creates unhealthy incentives either to shun aggressive interrogation — which the Obama administration has sometimes seemed all too ready to do — or to subject suspects to the indefinite military detention, interrogation, and trial that the Bush administration favored.
Recruiters: Kagan’s Forgivable Sin
by Stuart Taylor, Jr.
The main Republican line of attack on Supreme Court nominee Elena Kagan will be to paint her as antimilitary, at worst, or at best a fellow traveler of left-wing academic America-haters, based on what many have inaccurately called her "ban" on military recruiters as dean of Harvard Law School.
Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?
A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a "noble" and "deeply honorable" profession.
One of Kagan’s great virtues was her success in taking a sledgehammer to the Harvard faculty’s high quotient of left-wing mindlessness.
Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.
"At a time of war, in the face of the grand civilizational challenge that radical Islam poses," charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."
Recruiters: Kagan’s Forgivable Sin – The Ninth Justice
by Stuart Taylor, Jr.
The main Republican line of attack on Supreme Court nominee Elena Kagan will be to paint her as antimilitary, at worst, or at best a fellow traveler of left-wing academic America-haters, based on what many have inaccurately called her "ban" on military recruiters as dean of Harvard Law School.
Kagan did discriminate against military recruiters for some months to protest the exclusion of openly gay people from the military. Is this a big blot on her record?
A little blot at worst, I’d say, and one offset by Kagan’s energetic and consistent support of students who had served and who planned to serve in the military, which she praised as a "noble" and "deeply honorable" profession.
Kagan’s short-lived denial to military recruiters of the same help that the law school provided to private employers was, in my view, an unwise way to protest the unjust 1993 law — adopted by a Democratic Congress and signed by President Clinton — that excluded openly gay people from the military.
"At a time of war, in the face of the grand civilizational challenge that radical Islam poses," charges Ed Whelan, head of the conservative Ethics and Public Policy Center, in National Review Online’s Bench Memos blog, "Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists."
Ouch. But Kagan’s restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters’ access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised "Dean Kagan’s strong record of welcoming and honoring veterans on campus" in a letter to the Senate Judiciary Committee.
Between a Rock and a Hard Place
by Stuart Taylor, Jr.
It’s a pretty safe bet that the Democratic-ruled Senate will confirm Solicitor General Elena Kagan, President Obama’s Supreme Court nominee, by about Aug. 6, with over 60 votes. But that’s not to deny that many conservatives–and some liberals–will raise passionate complaints that the 50-year-old Kagan is unfit to be a justice. Indeed, they’ve been attacking her for as long as she has been the consensus front-runner for the nomination.
Conservatives and others have pounded especially hard on her efforts to exclude military recruiters from Harvard Law School’s career services facilities as a protest against the exclusion of gays from the military.
Few if any critics doubt that Kagan is extraordinarily intelligent and accomplished, or that she demonstrated great skill as a consensus-builder as dean of Harvard Law School, where she calmed the troubled ideological waters and won the admiration of conservative and liberal colleagues alike, from 2003 through 2008. But critics do claim that Kagan–who spent most of her career as a law professor and Clinton White House official, with very little courtroom experience before becoming Solicitor General–has less experience relevant to being a justice than any nominee in decades. Indeed, unlike all nine current justices, she has no judicial experience at all.
The New York-born Kagan would increase the Court’s domination by establishmentarians who attended Harvard and Yale law schools–six and three justices, respectively–and its remoteness from the struggles of ordinary Americans. But what really animates most critics is hostility to a nominee whom they consider too liberal or too conservative.
How GOP-appointed Justices Shift Left
by Stuart Taylor, Jr
Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President Gerald Ford in 1975 to its left flank, has told several reporters that his ideology has not really changed much. Rather, according to Stevens, he has remained about where he always was, while newer and younger appointees have pushed the court to the right.
The record suggests otherwise. Like many of us, this extraordinarily intelligent, self-effacing gentleman, who turned 90 on April 20, may be kidding himself a bit about his own consistency.
Like some other Republican-appointed justices in recent decades – Harry Blackmun and Sandra Day O’Connor and, to a lesser extent, David Souter , Warren Burger and Lewis Powell – Stevens has become markedly more liberal during his years on the court. Meanwhile, no Democratic-appointed justice has become substantially more conservative over time. This helps explain why, despite the fact that Republican presidents have appointed 12 of the last 15 justices, the court itself has never – or, at least not yet – made the dramatic right turn that many reporters and commentators have repeatedly proclaimed. Indeed, the court’s rulings have remained left of the center of general public opinion on most (though not all) of the biggest issues.
What explains the asymmetry in justices’ evolution? More on that below. First, some facts about Stevens and other leftward-moving justices.
Seen in his early years as an idiosyncratic loner given to writing separate opinions joined by no other justice, Stevens was never a solid conservative. But he joined conservatives on ideologically charged issues, including racial affirmative action, the death penalty, rights of criminal defendants, freedom of speech and government funding of abortion. Since about the mid-1980s, however, he has taken positions markedly to the left of where he started on these and other big issues.
Courts Could Void Arizona’s New Law
by Stuart Taylor, Jr.
President Obama had it about right, in my view, when he called Arizona’s new immigration law "misguided" and a threat to "basic notions of fairness" and to "trust between police and our communities."
Similar misgivings — filtered through a legal doctrine called "field pre-emption" — seem more likely than not to persuade the courts to strike the law down.
But please, let’s can the hysteria. The problems with this law — and with copycat proposals in at least 10 other states — are a far cry from the images of Nazi Germany, apartheid, and the Jim Crow South conjured up by leftists who would denounce any effort to discourage illegal immigration.
To correct some misconceptions:
• The solid majority support for the law among Arizonans — and the 51 percent support among other Americans who told Gallup pollsters that they had heard of the Arizona law — is not driven by racism. It’s driven by frustration with the federal government’s failure to protect Arizona and other border states from seeing their neighborhoods, schools, hospitals, and prisons flooded by illegal immigrants. Worse, "It’s terrifying to live next door to homes filled with human traffickers, drug smugglers, AK-47s, pit bulls, and desperate laborers stuffed 30 to a room, shoes removed to hinder escape," as Eve Conant reported in Newsweek.
• Although it’s true, and most unfortunate, that absent robust administrative safeguards the Arizona law could lead to racial profiling by police, it certainly does not require racial profiling. Indeed, a package of revisions signed on April 30 by Arizona Gov. Jan Brewer seeks to prohibit racial profiling. The revisions did this by deleting the word "solely" from the original, April 23, law’s provision barring investigation of "complaints that are based solely on race, color, or national origin."
Why Kagan Should Stonewall the Senate
by Stuart Taylor, Jr
One Elena Kagan assertion that seems supported by a broad bipartisan consensus is that senators should insist that nominees disclose their "views on particular constitutional issues . . . involving privacy rights, free speech, race and gender discrimination, and so forth." (Oddly, her bill of particulars omitted abortion.)
Kagan complained, in a 1995 book review in the University of Chicago Law Review, that all nominees since the defeat of Robert Bork in 1987 had "stonewalled" the Senate Judiciary Committee by refusing to discuss specific issues and sticking to "platitudes." This, she famously wrote, has made confirmation hearings "a vapid and hollow charade." All quite true.
People ranging from Republican senators to my old friends Linda Greenhouse, writing in The New York Times, and Mike Kinsley, writing and on video in The Atlantic Wire, emphatically endorse Kagan’s 1995 case for telling all and hope that she won’t recant now.
But Kagan will recant. And she should. Yes, at first blush there seems to be an overwhelming case for demanding candor from a nominee who seeks a lifetime appointment to an office with more power than any but the presidency, and who will never have to answer to voters.
What if Supreme Court Justices Had to Run on Their Records?
by Stuart Taylor, Jr
Various analysts have dissented from my May 14 post, "Why Kagan Should Stonewall the Senate." There I argued that Elena Kagan should follow the almost unbroken tradition of judicial nominees refusing to disclose their views on issues likely to come before their courts.
So here I detail some of the logic underlying my major premise: a predictive judgment that complete candor about all big issues would likely doom any Supreme Court nominee, no matter what his or her views might be.
If I’m right about this, it should clinch the case for stonewalling on specific issues even apart from my other, more normative premise: that full disclosure would lead nominees down the road toward essentially promising to decide the big issues in specified ways in a (probably vain) effort to eke out a Senate majority.
To think through how the tell-all approach would play out, let’s consider whether any of the nine current justices – other than Sonia Sotomayor, who has not yet cast votes on many big issues — could win re-confirmation by the Senate now that their views are known.
Such a hypothetical reconfirmation proceeding would approximate the difficulty of confirming a nominee who makes all of her views known.
Take Justice Stephen Breyer, who might well be the easiest of the eight veteran justices to confirm.
Why the easiest? First, because as a fairly liberal Clinton appointee, Breyer would fare better among Senate Democrats than any of the five more conservative justices. Second, because with a record more moderate than those of the quite liberal Justices John Paul Stevens and Ruth Bader Ginsburg, Breyer would probably have a better chance with Senate Republicans.
The Principles of Elena Kagan
by Stuart Taylor, Jr
There’s been a lot of attention this week on Elena Kagan’s 1983 master’s thesis, a critique of the liberal Warren Court’s methods, although not necessarily its outcomes.
One passage that jumps out is her assertion that "if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand."
It’s hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court’s liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan’s Senate confirmation hearing, unless the schedule slips.
The case is Graham v. Florida. Earlier this week, the Court’s four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.
Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.
But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the "rule of five." As Justice Brennan explained it to law clerks, "If you have five votes, you can do anything you want around here."
So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master’s thesis. She wrote it while in her early 20’s, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.