Category Archives: Legal Times

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

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It’s Time to Mend the Civil-Rights Rift

by Stuart Taylor, Jr.

With President Bush excoriating House Democrats for passing a "quota bill"-and being savaged in return for fanning racial divisions-the rancorous debate over how much to expand job-discrimination remedies threatens to do race relations more harm than any law could cure.

But even as the opposing partisans have descended deeper into oversimplification and name calling, the real gap between their proposals has narrowed.

For the good of the country, it is imperative to bridge the gap and to get this issue behind us. A replay of last year’s Bush veto of a Democratic civil-rights bill would only suffuse the 1992 campaign with the poison of racial politics.

It should now be possible to come up with a statesmanlike compromise between the mainly Democratic bill that the House passed last week. 273-158. and the Bush administration’s competing proposal.

Statesmanship has been in short supply among the contending partisans-President Bush and the Democrats alike-as they have grappled for rhetorical advantage and the political high ground.

But Sen. John Danforth (R-Mo.) threw a glimmer of hope into this disturbing picture last week, by rounding up eight other moderate Republicans to sponsor a three-bill package that draws from both the president’s and the Democrats bills and seeks to bridge their differences.

Danforth says he acted out of a conviction that "it’s important to extricate the racial question from partisan politics." He would judiciously expand remedies for victims of job discrimination while seeking to avoid undue pressure on employers to adopt surreptitious quotas.

Danforth’s approach would improve both on current law, which the Supreme Court in 1989 tilted against job-discrimination plaintiffs, and on the House-passed bill, which would go too far in the opposite direction.

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High Court in a Police State of Mind

by Stuart Taylor, Jr.

For decades we have looked to a web of Supreme Court decisions as the ultimate safety net to protect the innocent from wrongful conviction or detention and to shield us all from governmental abuse in the criminal process.

This safety net, fraying for years, has begun to unravel with alarming speed since the retirement last summer of Justice William Brennan Jr., the great champion of the individual in the grip of the state. Brennan’s replacement, Justice David Souter, has solidified a majority that seems in a hurry to accommodate police and prosecutors by devaluing rights.

The coalitions change, with only Chief Justice William Rehnquist voting against the criminal defendant in virtually every case. But the erosion of important rights proceeds, restrained neither by adherence to precedent nor by deference to the law-making role of the Congress.

A recent example-especially telling because the Court accepted the flimsiest of justifications for prolonging wrongful detention of innocent suspects-is the 5-4 decision in Riverside v. McLaughlin on May 13. The Court held that police could routinely jail suspects for up to 48 hours before bringing them in front of a judge to determine whether there was probable cause to arrest them.

Justice Antonin Scalia, who usually sides with Rehnquist, aptly characterized the result in his dissent: "Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days-never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made."

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Rigging Test Scores By Race

by Stuart Taylor, Jr.

Four jobless workers take a standardized test of cognitive skills from a government job-referral service. All have identical actual scores of 300.

But the scores reported to prospective employers and to the workers themselves are another story: The first gets an 83, because she is black. The second gets a 67, because she is Hispanic. The third and fourth each get a 45, because they are white and Asian, respectively.

This is one example, based on a Labor Department score conversion table, of race-norming, a widely used but little-known practice of adjusting test scores by race, so as to give each group a proportionate share of the highest scores.

Race-norming is about to be brought out of the shadows, if Republican critics of the Democratic civil-rights bill have their way.

The Republicans are pushing to outlaw race-norming, or at least to expose it to the public as "the oil which greases the quota engine," in the words of R. Gaull Silberman. She is vice chairman of the Equal Employment Opportunity Commission.

Democrats have so far supported race-norming, while talking about it as little as possible. But if they want to shake the "quota bill" label President Bush has hung around their necks, they may have to think again, or to do some explaining:

If you really aren’t trying to promote covert racial quotas, then why do you support a system of covertly rigging test scores to achieve a rigid quota of racial proportionality at each score level?

Most people have never heard of it, but race-norming has been used by 40 state employment services in making job referrals, and by an unknown but apparently large number of companies, to eliminate the adverse impact on blacks and Hispanics of the tests that are often used in preliminary screening of job applicants.

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Lifeline for System Drowning in Discovery

by Stuart Taylor, Jr.

Some questions for you litigators out there:

The last time you were slogging through an all-day, multi-lawyered deposition of a reluctant witness, or preparing your own witness by walking him through hundreds of documents page by page, or fishing through 14 overflowing file cabinets for a probably non-existent smoking gun, or cranking dozens of boilerplate interrogatories through the word processor, did it feel like a good use of your time? And your client’s money?

Did you enjoy your long day’s journey into the night? Was it fun? Was it illuminating? Did it bring your case closer to a just resolution? Did it make any difference at all?

Or was it just a waste?

My unscientific sampling of big-case litigators suggests that a lot of them feel that a large "percentage of the time they spend on discovery is unproductive tedium or pointless gamesmanship-needlessly prolonged because they cannot risk leaving any stone unturned, or because vexatious adversaries play hardball, or because the party with more resources is waging a war of attrition, or because the judge won’t manage the case or take it to trial, or because the need to rack up billable hours creates incentives for overkill, or just because that’s the way it’s done.

The discovery process is a monster out of control, devouring billions of dollars and countless hours of lawyers’ time in cases that would be better settled or tried with far less ado. Most litigators know this. But many seem resigned to spending a good portion of their lives suffering through wasteful discovery.

Now comes Judge William Schwarzer, director of the Federal Judicial Center, with a proposal to set them free, to eliminate the excesses of adversarial discovery, and to make lawsuits quicker and cheaper.

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Fighting Crime With Lawlessness

by Stuart Taylor, Jr.

"If [police] feel that someone’s perched on their shoulder watching every action they’re going to take, you’re not going to get the kind of aggressive law enforcement that you need.

 -Attorney General Richard Thornburgh, on NBC’s "Meet the Press." March 17.

Thornburg’s point was that Congress should license police to present a wide array of illegally seized evidence in criminal trials without being second-guessed by judges.

His timing betrayed a revealing blindness to what can happen when "aggressive" police think they have free rein: Two weeks before, a gang of 15 white Los Angeles cops (including those who only stood and watched) beat a black man almost to death, savagely pounding him with batons and kicking him in the head as he lay on the ground. Some boasted about the beating later through the police computer system, apparently without fear of provoking disapproval from colleagues or superiors.

But for the fortuitous presence of "someone perched on their shoulder"-a hidden bystander with a video camera-it’s a safe bet the officers would have gotten away with their crime. The initial police reports were full of lies and probable lies, including a supposed confession by the victim that he "remembered fighting with officers."

If the Bush administration has its way with Congress, officers like these-and others who eschew brutality but are often tempted to cut legal corners-will have a strong incentive to trample citizens1 rights in search of evidence.

The administration wants Congress to "reform" the longstanding rule excluding evidence obtained in violation of the Fourth Amendment ban on "unreasonable searches and seizures."

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Courting Disaster: Perfidy and the Press

by Stuart Taylor, Jr.

The press has made a sorry spectacle of itself at the Supreme Court this year and may soon take a drubbing for it.

In two big pending cases, many of the nation’ largest news organizations have contended that the First Amendment licenses journalists to engage in grossly unethical conduct.

Here’ hoping that these wrongheaded and myopic claims do not provoke the justices-some of whom have been itching for a chance to stick it to the press-into an overreaction that could do the First Amendment lasting damage.

In last week’ oral argument in Cohen v. Cowles Media Co. No. 90-634. Minnesota’ two largest newspapers told the Court that the First Amendment means journalists can betray their sources whenever they please.

The papers are backed up by some of the nation’ largest news organizations, which have long claimed that the same First Amendment requires courts to shield their sources from subpoenas by honoring their ironclad promises of anonymity.

The press’s chance of having it both ways-of winning a right to breach promises of anonymity to sources without damaging its claimed right to protect them-approaches zero.

The looming danger is a possible holding that the First Amendment has nothing to say about reporters and their sources-which would destroy the fragile principle that currently protects sources from court-ordered disclosure. That is one reason a number of First Amendment lawyers privately express horror at the press’s posture in the case.

The Minnesota newspapers say their right to publish the whole truth sometimes overrides their ethical duty to honor their promises. So it may, but only in rare cases-for example, if a source breaks his side of the bargain by falsely accusing others of the leak-and this is not one of those cases.

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Amicus Curiae for the Police State

by Stuart Taylor, Jr.

"This is a free society." Solicitor General Kenneth Starr told the Supreme Court last week.

"You have the right to say no."

Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.

The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.

For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.

The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.

The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.

Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.

The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.

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Education and Accidents of Birth

by Stuart Taylor, Jr.

Harvard, like most universities, gives alumni children a break in admissions. Some Asian-Americans see this as illegal discrimination, because mostly white "alum-kids" bump Asian-Americans who would otherwise get in.

The Education Department recently ended a probe into this particular thumb on Harvard’s scales, finding it justified by the need to sustain the flow of alumni dollars and volunteer work.

But Asian-Americans aren’t satisfied. And their complaint (which also encompasses preferences for athletes, most of whom are white or black) opens a useful window onto the larger controversy over racial affirmative action.

The most obvious point is that the conservatives who denounce the unfairness of preferences for (mostly non-Asian) minorities are strangely silent about alumni preferences. This lack of symmetry renders their arguments a bit suspect.

If fairness is the end and merit selection the means, then it should be as important to make Harvard and its ilk "alum-blind" as to make them colorblind. Indeed, a strong case for discriminating against alum-kids might be inferred from a 1979 article by that scourge of affirmative action, then Professor Antonin Scalia.

After trashing racial preferences-as an effort to ease the WASP conscience at the expense of those whose immigrant parents (like Scalia’s father) "never profited from the sweat of any black man’s brow"-Scalia appended an intriguing afterthought:

"I do not, on the other hand, oppose-indeed, I strongly favor-what might be called …’affirmative action programs’ of many types of help for the poor and disadvantaged. It may well be that many, or even most, of those benefited … would be members of minority races…. I would not care if all of them were."

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Should We Just Kill Saddam?

by Stuart Taylor, Jr.

"We have not been targeting Mr. Saddam Hussein," says Gen. Colin Powell. "We’re not targeting any individual," says President Bush. "That’s not the way we fight wars anyway," says Gen. H. Norman Schwarzkopf.

Well, why not?

The man took power by assassination, kept it by murder, left a million dead in a war of aggression against Iran, gassed the Kurds, and obliterated Kuwait. He bombs Israeli civilians, tortures prisoners, fouls the sea with oil, and threatens chemical and biological warfare.

Why not just kill him? Or-to be more precise-now that our bombers have leveled his palace and scoured the skies trying to get a bead on him, why pretend he is not a target?

People make three basic arguments against targeting Saddam. Two of them are unconvincing. A third has some substance-and pretty much assures that no American leader is going to admit to targeting a foreign leader.

Morality. Some argue that it is-immoral to target anyone for assassination, even a person as evil as Saddam.

Whether retributive killing is ever justified poses a nice moral question. Thus we argue endlessly about the death penalty.

But we would not be killing Saddam solely to punish him for crimes he has already committed. We would be killing him to save tens of thousands of other, innocent lives by ending the war, or at least shortening it. Most lives thereby spared would be Iraqi. Many would be American.

The last refuge of the moralists is that it is somehow worse to kill an identified person by design than to kill anonymous souls who happen to be in the way of a thrust at a military target. But Saddam is a military target. And while planned killings are worse than accidental killings, deaths caused by an allied thrust into Kuwait would hardly be accidental.

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We Call That Writing

by Stuart Taylor, Jr.

"Journalists doctor quotes and add colorful language to them all the time to spice up stories," H. Bartow Farr III told the Supreme Court on Jan. 14. "They have every right to do it. That’s what the First Amendment is for."

Outside on the courthouse steps, Farr’s client, New Yorker magazine writer Janet Malcolm, added this: "So I fiddled a bit with Jeffrey Masson’s quotes. So what? The man is a conceited fool. My quotes revealed the larger truth. That’s how we do it at The New Yorker. We are artists, not petty scribes.

"And so. what if I pretended to be his friend? That’s journalism. Every journalist … is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse."

Actually, that’s not quite what Farr said. Or what Malcolm said.

Actually, the quoted passages above are my words, not theirs-except the last sentence, which comes verbatim from a 1989 Malcolm article. And as far as I know, Malcolm made no statement on the courthouse steps at all.

I made up the quotes because I wanted to dramatize the wrongheadedness of the Malcolm-New Yorker defense, which is supported by many major news organizations.

But this much is true: If the Court upholds Farr’s arguments, neither he nor Malcolm nor The New Yorker could get to first base suing me for making up phony, offensive quotes and pretending that Farr and Malcolm had uttered them.

That’s because in my opinion-and my opinion would be all that mattered-my phony quotes roughly "convey the same meaning," to borrow Farr’s words, as other things that Farr and Malcolm have said.