Category Archives: Legal Times

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

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In the Bush League on Drugs

by Stuart Taylor, Jr.

President Bush dramatized the drug scourge in his prime-time address with the story of a six-year-old boy named Dooney, who until recently lived in a crack house. Life was so bad at home with his addicted mother that he begged to sleep at school, and he feared he would "probably have to" end up selling drugs.

"Well, Dooney does not have to sell drugs," the president declared. "No child in America should have to live like this."

No child should. But what does the president offer as an alternative? What deliverance from the nightmare the American dream has become for masses of poor children, plagued by bad housing, bad neighborhoods, bad schools, and, in many cases, bad parents?

A president who was serious about helping children like Dooney would propose a massive effort to rehabilitate inner-city schools and child-welfare programs, to give them all real educational opportunity and to give neglected and abused children the nurturing they don’t get at home.

But such a program would cost tens of billions of dollars. Candidate Bush vowed to be the "education president"; now he wants to cut real federal spending for education. His call to arms on drugs betrays his real priorities: "We can pay for this fight against drugs without raising taxes or adding to the budget deficit"-instead, he wants to take money from programs to help poor people.

What the president offers poor children like Dooney is no real hope for a share in the bounty of American life, but rather the threat of repression if they step out of line.

We’ll start by taking away your driver’s license, he says; then we’ll throw you into boot camps or prison; "and for the drug kingpins, the death penalty."

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Janet Malcolm’s License to Lie

by Stuart Taylor, Jr.

This has been a big year for Janet Malcolm, who writes for The New Yorker about psychoanalysts, journalists, murderers, and other interesting folks.

First she touched off a cyclone of journalistic indignation and soul-searching by asserting in a widely discussed article that "every journalist… is a kind of confidence man," seducing his subjects to gain their trust and then "betraying them without remorse."

And now she has won a ruling that every journalist has a First Amendment right to "fictionalize quotations," as a federal appeals court put it in dismissing a $10 million libel suit by a man who came across as a deluded egomaniac in quotations attributed to him by Malcolm.

In the 2-1 decision, the U.S. Court of Appeals for the 9th Circuit held that a writer may attribute to a public figure words that he did not speak, words depicting a vain, foolish, and dishonorable braggart, so long as the made-up quotations are arguably similar to things he did say.

This new constitutional right to "interpret" in the guise of quoting could enable Malcolm’s journalistic "confidence man" to dispense with seducing his subjects and proceed directly to betraying his readers.

Even if Malcolm did both, the court held on Aug. 4, she did not libel Jeffrey Masson in the two-part 1983 article and subsequent book trashing his reputation.

Masson is a psychoanalyst and scholar who was fired from a job at the Sigmund Freud Archives in 1981 after he had enraged the psychoanalytic establishment by going public with evidence questioning the integrity of Freud’s work.

Malcolm put quotation marks around several damning comments and self-characterizations attributed to Masson- "intellectual gigolo," for example-that he says she simply made up.

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Give This Man A(nother) Job

by Stuart Taylor, Jr.

In the eyes of conservatives, William Lucas is a fine choice for the nation’s top civil-rights enforcement job because he seems to oppose affirmative-action plans that allocate jobs on the basis of race. And, oh yes, because of his race.

President George Bush’s candidate to be assistant attorney general for civil rights may not like racial quotas, but his nomination is a racial quota.

In the colorblind legal and political world for which conservatives purport to pine, it would be inconceivable for any president to choose a man as innocent of the law as Lucas for this crucial litigating position.

In the world we live in, there is much to be said for the symbolism of filling the top civil-rights job with a black man who has worked hard to overcome adversity and has made his life an inspiring success story. But there are people who fit that description who know something about civil-rights law. Lucas is not one of them. To put him in charge of civil-rights enforcement is to reduce the post to empty symbolism, to fail to take it seriously.

Sen. Arlen Specter (R-Pa.), a liberal on civil-rights issues who supports Lucas, articulated the nominee’s one qualification most clearly: "Bill Lucas’ major asset for this position is his 61 years of tough experience as a member of a minority."

Similar arguments have been made for preferential hiring of blacks as inner-city police officers and schoolteachers. But they have met with little sympathy from the conservatives who now back Lucas.

A Civil Rights Division chief who did not understand the law would be a pawn moved about on a chessboard by others. This is no job for a figurehead. It is a hands-on litigating post in which detailed knowledge of the law is the essence of policy-making. That law can be learned, but Lucas has displayed no capacity for learning it.

Woeful Ignorance

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Smarm-Splattered Banner

by Stuart Taylor, Jr.

Leading Democrats and their favorite constitutional scholar have come up with an ingenious solution to the great flag-desecration crisis.

To get around the Supreme Court’s invalidation of laws aimed at flag-burning and flag-trampling political protesters, they want to make it a crime for, say, a husband and wife to trample Old Glory in the sacred precincts of the marital bedroom.

Far-fetched? Let Sen. Joseph Biden Jr. of Delaware. Gov. Mario Cuomo of New York, and Harvard Law Professor Laurence Tribe explain, as Tribe and others will do at three hearings this week before a House subcommittee. As these Democrats read it, the June 21 flag-burning decision, Texas v. Johnson, bars the government only from singling out for punishment those who publicly mistreat the flag as a way of expressing their contempt for it.

No problem, say Biden, Cuomo, Tribe, and company. No need to amend the Constitution; just make it a crime to mistreat a flag in private as well as in public, regardless of whether any political message is intended. Then throw the books at all flag desecraters, political protesters as well as … as well as … -well, as well as all the others, if any.

To make it constitutional, we will have to prosecute lazy scoutmasters who let the Stars and Stripes drag in the dirt and people who maliciously mistreat their own flags in the privacy of their homes for the sheer sadistic pleasure of it.

Biden and company will go to the ramparts to defend your rights to use contraceptives and read obscene books at home, but don’t let them catch you abusing a flag there.

‘Statutory Choo-Choo’

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And Now… the Supremes!

by Stuart Taylor, Jr.

After all, this is the nation’s ultimate judicial tribunal," Justice Felix Frankfurter once said of the Supreme Court.

Not anymore, it isn’t. Comes now a Washington Post survey revealing that the nation’s ultimate tribunal is Judge Joseph Wapner’s "People’s Court."

The numbers speak starkly: 54 percent of 1,005 randomly selected adults named Wapner when asked who presides over "The People’s Court," a television show that boasts more than 8 million viewers every weekday. Only 9 percent could name the chief justice of the United States, William Rehnquist. And when those surveyed were asked to list all the justices they could, only the first woman justice, Sandra Day O’Connor, broke out of single digits. She still lagged badly behind Judge Wapner.

In this country, recognition is power-and signs of the Court’s decline and demoralization are everywhere.

Justice Thurgood Marshall spends his afternoons chuckling over episodes of "The People’s Court" rather than slogging through the tedium of his own Court’s business, according to Time magazine. Rumor has it that many incoming Supreme Court law clerks are vying for clerkships with Wapner and will jump ship if he takes them.

And with everyone from President George Bush to the civil-rights lobby trashing recent Court decisions and pushing Congress to overrule them, we can see the justices’ authority draining like air from a leaky tire.

Just last week we had the spectacle of Bush whooping for a first amendment to the First Amendment in order to overturn the ruling that made the world safe for flag burners. Democrats in Congress are striving for parity in pandering to the public by proposing a new statute against flag desecration.

Wapner for Chief

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Now the Court Has Gone Too Far

by Stuart Taylor, Jr.

The Supreme Court’s three major, 5-4 discrimination rulings this month seem to reflect an unarticulated notion that the most serious problems of civil-rights law facing America today are the legal harassment of employers and the oppression of white males.

Justice Byron White’s choice of words in his June 5 opinion for the 5-4 majority in Wards Cove Packing Co. v. Atonio was suggestive. While blandly acknowledging the "unfortunate" problem of discrimination against non- whites in our society, he lamented the "host of evils" caused by legal rules that spur employers to adopt quota systems and discriminate in favor of minorities.

Our legal and political systems have, in fact, spawned enough "reverse discrimination" and enough groundless discrimination suits by minorities and women against innocent employers to justify some concern and perhaps some corrective action on the Court’s part. The refusal of many liberals to acknowledge that these problems exist helps explain the shrillness of their attacks on the Court’s good faith.

In this sense, the Court’s new conservative majority may have been seeking to move the law in a healthy direction. But they have moved it way too far.

Legal rules are such crude instruments for affecting human conduct that those aimed at foreclosing the possibility of reverse discrimination will, inevitably, also have the effect of denying redress to many victims of the more pervasive discrimination that still confronts minorities and women.

In groping for the right balance, the new majority seems to proceed from a skewed perspective: that discrimination against white males has become a problem of the same magnitude as the discrimination, present and past, that has denied to millions of blacks any real opportunity to participate fully in American life.

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Legal Corruption, Congress Style

by Stuart Taylor, Jr.

The petty ethical transgressions that finally brought down House Speaker Jim Wright last week are a pimple on the nose of a body politic racked by the cancers of legalized corruption, moral laxity, and political cowardice.

Lancing the pimple does nothing to cure the cancers. Indeed, the unseemly haste with which Wright (D-Texas) was hustled overboard is one symptom of the political cowardice of many of his colleagues who are themselves steeped in the legalized corruption of honoraria, free trips, and campaign contributions from monied interests. They hope that the ravening beast of media fascination with the seamy side of congressional ethics can be sated by the ritual sacrifice of the speaker, along with the self-immolation of House Democratic Whip Tony Coelho (Calif.), the fund-raising prodigy who impaled himself on a messy $50,000 junk-bond investment.

But only those who cannot see the forest for the trees find anything uniquely shocking in Wright’s ventures down the slippery slope of sleaze.

The purging of the speaker and any others alleged to have violated the ethical rules will have been a largely empty and hypocritical exercise unless Congress does something about the kinds of graft that the rules allow.

As a legal matter, the case against Wright is quite weak on the main charge of violating House standards by taking $145,000 in alleged gifts (his Wife’s salary and the use of a condominium and a car) from his friend George Mallick, a Fort Worth developer, between 1979 and 1988, The rules bar acceptance of large gifts only from those with a more "direct interest in legislation" than Mallick seems to have had by virtue of his oil, gas, and real-estate investments. Distasteful as it may be for a House speaker and his wife to have a sugar daddy, there is no clear evidence that Wright ever used his influence to enrich Mallick.