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.
Kagan May Mean a More Conservative Court
by Stuart Taylor, Jr
One irony of President Obama’s nomination today of Solicitor General Elena Kagan to the Supreme Court is that the effect of a Democratic president filling the seat of Republican-appointed Justice John Paul Stevens will likely be to make the Court more conservative.
Another irony is that after vowing to name a justice with "a keen understanding of how the law affects the daily lives of the American people," the president has chosen a New-York born graduate of Princeton and Harvard Law School who has spent almost her entire career teaching in elite law schools and working in the upper echelons of the Clinton and Obama Administrations. Her experience has been far from the circumstances of most ordinary Americans. (Stevens is the only member of the current Court who did not attend Harvard or Yale Law School.)
This is not to deny the 50-year-old Kagan’s notable strengths: a brilliant legal mind, demonstrated skills as a consensus-builder and conciliator as dean of Harvard Law School from 2003 to 2008, an engaging personality, skilled at getting along with liberals and conservatives alike, and parents whose lives and careers exposed her to the struggles of ordinary people — plus, the prospect of serving as a justice for 40 years if she, like Stevens, lasts until age 90.
Garland Born To Be A Judge
by Stuart Taylor, Jr.
I recently asserted that any of the four people on the list initially leaked by the White House would be an excellent nominee to succeed retiring Justice John Paul Stevens. (See "An Excellent Supreme Court Shortlist," 4/10/10, p. 15.) Now I’d like to argue that the wisest choice would be Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
I hasten to add that the consensus that Garland would be the least controversial, most easily confirmed nominee is the least of my reasons for praising him.
Nor is my personal relationship with Garland a substantial factor, although full disclosure is in order: We became friendly in law school, working together on the law review in the mid-1970s. We had dinner at each other’s homes years ago and, more recently, have met for lunch once or twice a year. He invited my wife and me, among many others, to his chambers to watch President Obama’s inauguration. Garland has been guarded about his views, and I know nothing about them beyond the public record. But I can testify — as can many others — that he is about as fair-minded, judicious, and straight as a straight-arrow can be.
To be sure, ranking Garland and the three other shortlisters — all people of outstanding integrity and intellect — is a close call.
Solicitor General Elena Kagan, the early betting favorite, would bring youth (she is 49; Garland is 57), charm, and substantial conservative as well as liberal support. The former Harvard Law School dean is unencumbered by much of a paper trail — her views on almost all of the big issues are unknown — or by as much real-world experience as the others.
Montana’s States’ Rights Showdown
by Daniel Stone and Stuart Taylor, Jr.
State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that
State lawmakers have done a lot since Pre…
State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that
State lawmakers have done a lot since President Obama’s election to shake off Uncle Sam, passing "sovereignty" resolutions and a record number of laws that specifically defy Congress on issues such as legalized marijuana and health-care reform. Most make the same claim: that the U.S. Constitution gives the federal government power to regulate commerce between states but doesn’t permit interference in purely local affairs. Later this year, the Montana Firearms Freedom Act, which proclaims that guns manufactured in Montana and sold in state are not subject to federal rules such as background checks, is slated to become the first of these Obama-era commerce challenges tested in court. But the case, which originated when a gun-rights group sued the Justice Department for threatening a crackdown, shouldn’t give separatists hope: it’s doomed to fail, as will similar rebukes.
Three Supreme Court Myths – The Ninth Justice
by Stuart Taylor, Jr.
At both ends of the ideological spectrum, politicians, activists, journalists, and academics like to stress how big a change the next Supreme Court justice could make in the course of the law. The appointment will, says the conventional wisdom, be among President Obama’s most important legacies.
Many also stress how far to the right (say liberals) or left (say conservatives) of center the Supreme Court has been in recent years, the better to dramatize the need to correct the perceived imbalance.
And the dominant media image has been of "the conservative Court" (recent articles in The Washington Post), or "the Supreme Court’s conservative majority" (New York Times editorials), or a Court "as conservative as it’s been in nearly a century" (Newsweek commentary by my friend Dahlia Lithwick).
All this brings to mind three contrarian theses.
First, it simply won’t make much difference in the next five or so years — if ever — whom Obama picks from the lists of moderately liberal, extremely liberal, and just plain liberal candidates leaked by the White House.
Indeed, I can’t think of a single case or issue that would foreseeably be decided differently depending on whether the nominee turns out to be the most or the least liberal of those under serious consideration.
The Court is by nature quite stable. Imagine, for example, that Obama nominated and the Senate confirmed a person more liberal than either John Paul Stevens or any other current justice. No matter how passionate, or how brilliant, or how persuasive, he or she could move the law no further than at least four others were willing to go. And given the justices’ fierce independence, it’s hard to imagine any of them lurching leftward at the urging of the new kid on the block.
How Republican Justices Evolve Leftward – The Ninth Justice
by Stuart Taylor, Jr.
Justice John Paul Stevens, who in most portrayals has migrated from the center of the court when appointed by President 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 will turn 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.
An Excellent Supreme Court Shortlist – The Ninth Justice
by Stuart Taylor, Jr.
With the long-expected announcement by Justice John Paul Stevens that he will retire by July, the coming summer could be dominated by a big confirmation battle — or perhaps just enlivened by a little skirmish, if President Obama picks a relatively uncontroversial nominee.
Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left, legislate from the bench, impose gay marriage by judicial decree, strip "under God" from the Pledge of Allegiance, invent welfare rights, require government-funded abortions, and free terrorists.
But, in fact, none — or at most one — of the four brainy and well-qualified public servants at the top of the shortlists that have made their way into the media from inside sources seems likely to move the Court left.
None of the four is clearly more liberal than Stevens, who is in turn a lot less liberal than, say, the late Justices William Brennan or Thurgood Marshall.
Stevens, who will still have one of the best minds on the Court when he turns 90 on April 20, has long insisted that he remains the old-fashioned judicial conservative and moderate Republican he was when President Ford appointed him in 1975. But the leftward drift of his opinions over the years has made him the senior member of the four-justice liberal bloc.
The four shortlisters are Solicitor General Elena Kagan; federal Appeals Court Judges Diane Wood of Chicago and Merrick Garland of the District of Columbia; and (though some count her out) Homeland Security Secretary Janet Napolitano. President Obama interviewed Kagan, Wood, and Napolitano last spring before choosing Sonia Sotomayor, an Appeals Court judge, to succeed Justice David Souter.
A Liberal Nominee — And A Proposal
by Stuart Taylor, Jr.
The president’s nominee had "a brilliant legal mind" and a charming manner, the critic wrote in an op-ed. But his record was "resolutely conservative." This made the Supreme Court nomination "a seismic event that threatens to deepen the nation’s red-blue divide." It should be rejected, the critic implied.
The nominee was John Roberts, now the chief justice. The critic was the comparably brilliant and charming Goodwin Liu, a University of California (Berkeley) law professor. He is now the most resolutely liberal of President Obama’s judicial nominees.
Indeed, the 39-year-old Liu’s sweeping vision of court-ordered social justice, though within the mainstream of legal academic opinion, puts him markedly to the ideological left of all 41 Senate Republicans, at least half of the Democrats, and 80 percent or more of voters, I’d guess.
Putting aside his ideology and his less than two years of legal experience outside the academy, Liu is an admirable candidate for the federal Appeals Court seat in California that he will fill if confirmed. The Rhodes scholar and former law clerk to Justice Ruth Bader Ginsburg has an inspiring son-of-Taiwanese-immigrants life story. Plus, people like him.
So how should Senate Republicans and moderate Democrats respond to Liu’s nomination, now set for a Judiciary Committee hearing on April 16? Defer to the president? Vote no? Stall? Filibuster?
More on that below. First, a look at Liu’s writings and speeches, which conservative legal analyst Ed Whelan has collected, linked, and exhaustively analyzed in multiple posts on National Review Online’s Bench Memos blog.
Gitmo Lawyers And CIA Photos
by Stuart Taylor, Jr.
Have you heard that Attorney General Eric Holder has appointed tough federal prosecutor Patrick Fitzgerald to take over a months-old investigation into whether defense lawyers associated with the American Civil Liberties Union illegally compromised CIA interrogators’ identities?
The Fitzgerald appointment, mentioned in passing by The Washington Times on March 15 and more fully reported by Newsweek on March 19, has at this writing been virtually ignored by almost all other news organizations. But it raises interesting questions.
The lawyers reportedly had private investigators surreptitiously take photos of men thought to be CIA interrogators, and then showed them to at least one of the four men accused along with Khalid Shaikh Mohammed of conspiring to launch the 9/11 attacks. In at least one instance, photos were said to have been found in a detainee’s Guantanamo Bay cell.
The tapping of Fitzgerald, the U.S. attorney in Chicago, may suggest that the Justice Department is taking very seriously an inquiry into the photo situation that was first reported last August by The Washington Post. Fitzgerald is an exceptionally aggressive prosecutor who is known for his investigation of Bush administration leaks of then-CIA agent Valerie Plame’s identity and his corruption indictment of former Illinois Gov. Rod Blagojevich.
The use of CIA operatives’ photos by ACLU-funded defense lawyers reinforces my concern that conventional rules of criminal justice and legal ethics — which tend to support what the lawyers reportedly did — may not be the best way to deal with mass-murder terrorists who wage war against the United States.
Health Law Not A Sure Bet In Court
by Stuart Taylor, Jr.
Editor’s Note: This is an updated version of Stuart Taylor’s Dec. 12 Opening Argument column.
What chances of success await the lawsuits challenging the constitutionality of the new health insurance reform law filed by 14 state attorneys general this week, with more lawsuits by states, individuals, and companies in the pipeline?
Not much, according to most of the academic experts who have weighed in. They confidently predict that the Supreme Court will (if the case gets that far) uphold the new law’s major provisions. These include the much-debated mandate for individuals to buy comprehensive health insurance unless they’re already covered by employer-based plans, and also the requirement that states spend billions of dollars expanding their Medicaid programs (unless they withdraw) and administering the complex new law.
These experts cite the justices’ very broad reading since the New Deal of Congress’ powers to regulate interstate commerce and to tax and spend.
The need to govern an ever more interconnected nation has spawned a long line of precedents expanding the commerce power.
I, too, would bet on the major provisions of the 2,400-page law being upheld. But "these challenges are not frivolous," as the Washington Post said in an editorial, and "the case is not as clear-cut as many legal scholars have argued."
The fact is that the costly federal mandates that the law imposes on state governments, individuals and families are without close precedents. And the lopsided academic response is attributable partly, though not entirely, to the lopsidedly liberal policy preferences of the professoriate.
Indeed, most scholars and other analysts have virtually ignored the new law’s most vulnerable (in my opinion) major provision, which the plaintiff states say violates their sovereignty.
Time To Depolarize Terror Policy
by Stuart Taylor, Jr.
Corrected at 3:00 p.m. on March 12.
For far too long, public debate about terrorism has been dominated by right-wing and left-wing ideologues. In this corner, the Cheneys and their allies. In that corner, the American Civil Liberties Union, gonzo House Democrats and academics, and their allies. In neither corner, common sense.
Typifying the quality of the debate was the ACLU’s wildly overstated full-page ad in The New York Times on March 7 darkly suggesting that President Obama would be subverting "our Constitution and due process" if he abandons his administration’s politically toxic plan to move the prosecution of five accused 9/11 conspirators from a military commission to a federal civilian court. The centerpiece of the ad was a drawing of Obama’s face morphing into that of George W. Bush — who seems to be more hated in ACLU-land than Osama bin Laden.
Meanwhile, hard-right conservatives including Liz Cheney and William Kristol have been running a deeply misguided campaign, including a video emblazoned with "DOJ: Department of Jihad," to smear as disloyal several lawyers now working in the Obama Justice Department. They previously represented Guantanamo detainees or sought due process protections for people who might be innocent.
The best hope for replacing this sterile right-left shout-fest with a bipartisan, commonsense approach to terrorism may be the diligent efforts of Sen. Lindsey Graham, R-S.C., to find common ground with the Obama administration. And the time is ripe for the president to realize that a grand bargain with Graham — including comprehensive legislation on how to handle suspected terrorists, closing the Guantanamo prison camp, and related issues — could help him recover from blunders such as seeking to try the 9/11 defendants in Manhattan.