Category Archives: Legal Times

Stuart Taylor, Jr.’s Legal Times media appearances.

Posted on

When to Take the Mask Away

by Stuart Taylor, Jr.

On CNN, she was a round blue blob, haloed by dark hair, hovering over a strand of pearls, expressionlessly emitting rape accusations, memory lapses, whimpers, and sobs.

On Court TV, she was a flickering checkerboard mosaic, a high-tech mask.

She had a human face and a name only for the six jurors and the handful of spectators squeezed into the tiny Palm Beach courtroom. The rest of us could catch fragments of her identity only when the TV people mistimed the annoying bleeps they used to censor out each utterance of the name of history’s most famous rape victim.

Or is she just a famous perjurer?

We couldn’t see whether her gaze was steady or shifty, whether those sobs looked as genuine as they sounded, whether the woman herself was more believable (as some who saw her say), or less, than the disembodied voice behind the blob.

Was all this really necessary, while she was face to face with her alleged rapist in the courtroom, trying to send him to prison and destroy his reputation forever? Is it still necessary, after the jury has found William Kennedy Smith not guilty in just 77 minutes’?

We all knew his name. We all saw his face. And while he was legally presumed innocent unless and until proven guilty, no one was showing much solicitude for his privacy. Wherever he goes, people will know him as the alleged Palm Beach rapist.

So why should she be shielded from public view while testifying at a public trial? Why, indeed, so many months after everyone in Palm Beach knew who she was, and after two national news organizations first used her name?

Protecting a rape complainant’s anonymity (if she wants it protected) is, in fact, very good journalistic policy, up to a point. But in my view (not my employer’s), that point was reached in this case the moment she appeared on the witness stand-or, if not then, at least by the time that the jury had found Smith innocent.

Posted on

Hard Cases and Party-Line Justice

by Stuart Taylor, Jr.

In reversing the convictions of three once-powerful Reagan administration officials-Lyn Nofziger, Oliver North, and, last month, John Poindexter-the U.S. Court of Appeals for the D.C. Circuit has consistently cleaved along straight party lines.

Each of the eight Reagan-appointed and Bush-appointed judges (including now-Justice Clarence Thomas) has voted to reverse each of the convictions that he or she has reviewed.

And each of the four Carter-appointed judges has voted to affirm (at least in part) each of the convictions he or she has reviewed.

In all, Reagan/Bush judges have cast a combined total of 12 votes for reversing these three convictions, and Carter-appointed judges have registered a combined total of seven dissents.

Nofziger, North, and Poindexter are the only high-ranking Reaganites who have appealed convictions to the D.C. Circuit. Each was prosecuted by an independent counsel.

(In a fourth case, which did not lead to criminal charges, two Reagan appointees in 1988 struck down the law providing for such independent counsel, over a Carter appointee’s dissent. The Supreme Court reversed that decision by 7-1.)

Why have the Reagan/Bush judges-far more likely than the Carter appointees to side with prosecutors in the ordinary run of criminal cases-been such vigilant guardians of the procedural rights of the accused in these cases?

Why have they so unanimously found inadmissible evidence of unchallenged reliability that proved North and Poindexter had committed serious federal crimes?

Conversely, why have the Carter judges- usually so solicitous of the rights of criminal defendants-voted to spurn the appeals of these defendants?

Why have they rejected the arguments of, among others, the American Civil Liberties Union (in amicus briefs) that the North, Poindexter, and Nofziger prosecutions offended important constitutional principles?

Posted on

The Capitals Peculiar Rituals

by Stuart Taylor, Jr.

Richard Allen. Robert Bauman. James Beggs. Peter Bourne. Tony Coelho. Tai Collins. Daniel Crane. Deborah Gore Dean. Raymond Donovan. Fanne Foxe. Newt Gingrich. Stephen Gobie. Thereza Imanishi-Kari. Rita Jenrette. Tim Kraft. Bert Lance. Rita Lavelle. Donald Lukens. Robert McFarlane.

Edwin Meese III. Ozzie Myers. Lyn Nofziger. Oliver North. Theodore Olson. Tom Pappas. Paula Parkinson. Elizabeth Ray. Nancy Reagan. Donna Rice. Gus Savage. Denise Sinner. Gerry Studds. Jim Wright. Joseph Wright Jr. John Zaccaro Jr.

Pop quiz: Try to recall how these people became embroiled in front-page Washington scandal (or what passes for scandal); which of them were accused of crimes; which were convicted; and what became of them. (For answers, see Page 29.)

Then read Scandal: The Crisis of Mistrust in American Politics. It’s a much-needed antidote to the obsession with exposing wrongdoing that has distorted our political culture since Watergate.

Scandal, a new book by former Wall Street Journal columnist Suzanne Garment, is one of the most sensible and readable analyses of our capital’s peculiar rituals ‘in years. Garment argues compellingly that political Washington and its scandal-happy press corps have spent far too much energy chasing tales of corruption, sin, impropriety, and the appearance thereof, and far too little on our deeper problems, which "spring less from individual wrongdoing than from more widespread failures of political will."

It’s a cautionary tale for the self-appointed, often self-righteous guardians of ethical purity whom Garment calls "scandal entrepreneurs." The carefully documented, entertainingly rendered, sometimes deliciously ironic narrative lends weight to Garment’s sobering conclusion:

Posted on

The Civil-Rights Bill: Punt to the Courts

by Stuart Taylor, Jr.

The conventional wisdom about the civil-rights bill compromise is that President Bush, afraid he was looking more and more like KKK-alumnus David Duke, simply caved in.

Liberals exult that the president abandoned a morally and politically indefensible position by embracing belatedly the same salutary reforms that they had been seeking all along.

Meanwhile, conservatives like columnist Patrick Buchanan bash the president for capitulating to a "quota bill."

Wrong, wrong, wrong.

These figments of Democratic spin-controllers and right-wing hardliners, uncritically adopted by much of the national press as the bill sped toward final passage last week, are egregious oversimplifications.

Not as egregious, to be sure, as the president’s own transparently absurd position that what he had been denouncing for 20 months as a "quota bill" had been transubstantiated, by a few strokes of the pen, overnight, into a good and upright "source of pride for all Americans … a non-quota civil-rights bill."

Oversimplified rhetoric begets oversimplified rebuttal. President Bush and his aides may deserve a dose of their own medicine.

Irreconcilable Differences

But the truth is that this was a classic, convoluted legislative deal, with both sides giving significant ground, inch by inch, while papering over irreconcilable differences and leaving the hardest policy decisions unresolved:

• The White House won more than it lost on the "quota" front, by holding out for crucial last-minute changes in language regarding statistically based "disparate impact" lawsuits. The compromise bill is far less likely than the original Democratic proposals to increase pressure on employers to use racial hiring preferences and significantly less likely to do so than the revisions advanced last summer by Sen. John Danforth (R-Mo.).

Posted on

In Defense of Dirt Digging

by Stuart Taylor, Jr.

”They have the whole country blanketed, trying to dig up dirt…These are the smartest attorneys from the best law schools in the land. All paid for at public-interest expense. It’s what’s ruining our country in large measure. Because some of these groups…are vicious."

–Sen. Orrin Hatch (R-Utah)

What’s so bad about trying to dig up dirt? In their furious attacks on the excesses of a few of Clarence Thomas’ opponents. Thomas and his supporters cynically sought to delegitimize the whole enterprise of investigating Supreme Court nominees and their records.

In the process, they uttered a lot of pious, hypocritical, demagogic nonsense.

Efforts by political opponents and the press to ”dig up dirt" about people in public life are as American as apple pie and as old as the republic. And such negative research is a tool used by conservatives no less than by liberals.

In the words of Bruce Murphy, author of a book on the failure of Justice Abe Fortas’ nomination to be chief justice in 1968 and his subsequent resignation under a cloud of financial improprieties: ‘ ‘The handbook for the dirt-digging operation was written by the Republicans in 1968, and the author was Senator Strom Thurmond of South Carolina."

Dirt digging is not only proper but good for the country-if kept within proper bounds.

By "proper bounds," I mean using legitimate investigative techniques-combing through speech texts, phoning former employees, and the like-to seek out and publicize any information that may be relevant to a nominee’s fitness for the job he or she seeks.

As for relevance, even Thomas had to concede that Anita Hill’s allegations of sexual harassment would (if true) demonstrate his unfitness for the Court.

Posted on

The Road Beyond Racial Preferences

by Stuart Taylor, Jr.

Why should a rich black lawyer’s child get into an elite college ahead of a struggling white factory worker’s child who has pushed himself harder and achieved better grades and test scores?

Why should either of them get the nod, for a university slot or for an entry-level job, over a poor child from the black inner city or white Appalachia who has slightly lower scores but has shown exceptional drive to overcome adversity?

Such questions-and the broader one of whether affirmative action for racial groups should give way to class-based preferences for individuals who have overcome disadvantage-are coming starkly into focus with Judge Clarence Thomas’ probable ascension to the Supreme Court.

The nominee’s broadside attacks on racial affirmative action in recent years suggest he may well cement a majority for eviscerating most or all race-based affirmative-action programs.

But Thomas also told the Senate Judiciary Committee that he favors preferences for those who have overcome barriers of social, economic, and educational deprivation.

He defended the affirmative-action plan that helped him get into Yale Law School in 1971 by saying (with questionable accuracy) that it was aimed at applicants who had done well despite "socioeconomic disadvantages" and that "the kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or a Hispanic kid from the inner cities or from the barrios."

In his own hiring decisions, Thomas added, "We look[ed] for people who have had some of the disadvantages….I think you can measure a person by how far that person has come and by what that person has overcome to get there….And I think we all know that all disadvantaged people aren’t black, and all black people aren’t disadvantaged."

Posted on

Why Confirm an Artful Dodger?

by Stuart Taylor, Jr.

It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.

He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.

He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.

Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."

He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.

Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.

In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.

Posted on

Quelling the Fires of Hate Speech

by Stuart Taylor, Jr.

If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?

That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."

The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.

The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.

One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.

Posted on

Power to the People. What People?

by Stuart Taylor, Jr.

The central vice of liberal judicial activism, conservative theorists have long contended, has been unwarranted interference with the rights of the people to make the laws through their elected representatives.

Now that Reagan and Bush appointees are firmly in command of the Supreme Court, will they practice the deference to elected representatives that their sponsors preach?

Perhaps. But the record so far suggests no great devotion to the policy-making primacy of the nation’s pre-eminent representative assembly, the U.S. Congress-which also happens to be the object of withering conservative scorn. And some decisions have the feel of a judicial-executive pincer movement cutting Congress out of the process of revising statutory policy.

A few examples:

• The much-discussed abortion-counseling decision this May, Rust v. Sullivan, adopts an approach to statutory interpretation that amounts to a significant transfer of law-making initiative from Congress to the executive.

• Other rulings have evinced an unrestrained readiness to revise the settled meaning of statutes by overruling precedents that Congress has not chosen to disturb.

• Some of the conservative justices seem ready to impose major limitations on the power of Congress, as well as the states, to use racial preferences to remedy past societal discrimination. If they succeed, it would be an arrogation of power as activist in some ways as the 1973 decision legalizing abortion.

The Reagan and Bush appointees are far from being a monolithic bloc, and it is too early to say whether they will be as prone as liberals have been to thwart majoritarian democracy. But it maybe time to start keeping score.

Posted on

Locked Up in Jail, Locked Out of Court

by Stuart Taylor, Jr.

"Since 1982 inmates increasingly have been placed two to a cell because the prison lacked space for its increasing population….Most … spend approximately 14 hours a day in their cells…. The court found that ‘[b]ecause these shared cells are so tiny, only one inmate at a time can stand in the cell; the other must lie on the bed.’… [P]hysical exercise is impossible…. Essentially, an inmate can only lie on his bunk or sit at the desk or on the bunk…. The lamp provides adequate light for the inmate on the top bunk to read, but virtually no light to the inmate on the bottom….

"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’

"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.

"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…

"Medical and psychiatric treatment are also shockingly deficient."