Category Archives: Legal Times

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

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Paula Jones: A Federal Crime?

by Stuart Taylor, Jr.

A stunning irony, so far unnoticed, lurks in a pair of pending Supreme Court cases: Clinton v. Jones, in which the president and his Department of Justice seek to block a sexual harassment lawsuit against him until after he leaves office, and the lesser-known United States v. Lanier.

The irony is that the crude sexual advances of which Bill Clinton stands accused by Paula Corbin Jones would apparently be a federal crime under the Clinton Justice Department’s legal analysis in the case of David Lanier, who was a monstrously lecherous chancery court judge in rural western Tennessee.

Clinton’s alleged conduct would be even more clearly a federal crime under the analysis suggested in amicus briefs filed by leading feminist groups and scholars.

Another irony is that while the Lanier case has become (understandably) a cause celebre in the women’s movement-with every major feminist legal advocacy group in the nation urging reversal of an appeals court decision that threw out Lanier’s convictions-the president’s so-far-successful effort to slam the courthouse door in the face of Paula Jones until the year 2001 has prompted not a whimper of protest from any of them.

Given all this, the rumor in the Supreme Court press room-that the cases may be set for argument the same day, sometime in January-seems almost too delicious to be true.

(For a fuller discussion of the Jones-Clinton case, see "Her Case Against Clinton," in the November issue of The American Lawyer, which I wrote before becoming aware of the parallels presented by the Lanier case.)

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Racial Preferences Meet Democracy

by Stuart Taylor, Jr.

"The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

So says the key provision of the California Civil Rights Initiative (CCRI)-otherwise known as Proposition 209-which will go before the state’s voters on Nov. 5. It will be the first up-or-down popular vote ever on racial preferences.

There are good reasons to vote no:

• The CCRI would mean a dramatic drop in admissions of black and Hispanic students to the University of California’s elite campuses, which serve as gate-ways to opportunity in a society still plagued by racial inequality.

• It would ban not only preferential selection processes but also racially targeted recruitment and outreach programs that seek to increase the minority applicant pool.

• It could make it more difficult to offset the potent but hard-to-prove brand of discrimination against black and Hispanic candidates that may still prevail in many police and fire departments and other government workplaces.

• Such a cold-turkey withdrawal from the current system could have a dispiriting effect on many black and Hispanic people who have come to believe-sincerely, if erroneously-that racial preferences are the only way they can get a fair shake.

• Many CCRI supporters preach a colorblind absolutism that may impede wise public policy, and that is required neither by the Constitution nor by principles of fairness and morality-not, at least, in comparison with such established practices as preferential admissions of affluent alumni children.

But for all that, I would vote yes.

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The Court at the Crossroads

by Stuart Taylor, Jr.

While you would hardly know it from the tenor of the campaign, this year’s presidential election could have a far more dramatic impact than most on the political-philosophical orientation of the Supreme Court, and thus on the direction of constitutional law.

That’s because the Court is now so closely divided on such vital Issues that the replacement of one of the conservative justices with a liberal, or vice versa, could make an enormous difference-above all, on questions of race, congressional power, and states’ rights.

For this reason, the next confirmation battle could well be reminiscent of the 1987 donnybrook over Robert Bork. The stakes were high then mainly because the pivotal justice whom Bork would have replaced, Lewis Powell Jr., had sided with liberal majorities in so many critical 5-4 decisions.

Of course, it’s entirely possible that all nine justices will stay on for four more years, or that any who step down will be replaced with people of similar orientation. But two scenarios could bring epochal change:

Scenario 1: Bob Dole wins; a liberal retires (most likely 76-year-old Justice John Paul Stevens, the Court’s oldest and most liberal member); Dole replaces him with a conservative; and suddenly we have the most conservative Court in modern history.

Scenario 2: President Clinton wins (as seems far more probable); a conservative retires (most likely 72-year-old Chief Justice William Rehnquist); the president replaces him (or elevates Justice Ruth Bader Ginsburg and then replaces her) with a liberal or moderate liberal; and suddenly we have the most liberal Court since (at least) Earl Warren.

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Monsters and Boy Scouts

by Stuart Taylor, Jr.

At first blush, accused Oklahoma City bomber Timothy McVeigh’s pending motion for permission to give media interviews-including one with a famous TV journalist, to be chosen from a gaggle of eager applicants who have already auditioned for the opportunity-might seem an occasion for revulsion.

Here’s how the prosecution characterized the motion in a seething Aug. 29 court response filed with Chief Judge Richard Matsch, of the U.S. District Court in Denver:

"McVeigh… seeks this court’s authorization of an extraordinary attempt to manipulate the news media to produce a favorable impact on the potential jury pool. According to the motion, defendant’s counsel has already met with such well-known television reporters as Barbara Walters, Diane Sawyer, Tom Brokaw, Dan Rather and others-and now wants to ‘choose among’ them the one least likely to ‘exploit’ an interview of Mr. McVeigh, ‘brow-beat’ the defendant, or ask Mr. McVeigh questions ‘he cannot answer.’… Mr. McVeigh also has ‘interviewed’ representatives of major national newspapers, and now wants to choose among them as well…. And he wants to make a similar selection from among local television and newspaper reporters."

But the motion should be granted. (Indeed, even the prosecution’s response, which exudes distaste for the motion, stops short of explicitly urging that it be denied.) Meanwhile, the media should spurn any conditions restricting what they can say about McVeigh before or after airing any interviews.

This spectacle raises two distinct questions, one of law and one of journalistic ethics:

Should courts allow McVeigh (who is in jail awaiting trial) and other accused monsters to give media interviews when their primary purpose is obviously to curry sympathy with the jury pool?

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Pandering for President

by Stuart Taylor, Jr.

Now that the conventions are over, it’s time to ponder which of the major-party candidates has taken the lead in proposing the worst ideas affecting the legal system and civil liberties.

Both President Bill Clinton and challenger Bob Dole have gone to great lengths to pander to various voter groups in this area.

BAD CLINTON IDEAS

• Banning gun sales to persons with records of domestic violence or abuse.

This is typical of the many tiny initiatives with which Clinton has salted his campaign to target carefully selected groups-especially feminists and other women.

This particular proposal trivializes gun control because it would have so little impact on domestic violence, which typically involves beatings and stabbings, not shootings. It makes little more sense than, say, barring spouse-abusers from buying beer or kitchen knives. If the president has no more muscular ideas than this for curbing gun violence, he can’t be very serious.

• Reflexive opposition to all efforts to curb excessive litigation.

While the costs and benefits of various litigation reforms arc debatable, and while some Republican proposals go too far, President Clinton and his party are so dependent on trial-lawyer money that they fight every proposal to attack the problem of was and abusive litigation.

The president opposed both a well-balanced bill (which Congress enacted over his veto) to curb those securities class actions in which the prime movers and beneficiaries are contingent-fee lawyers and, more recently, a modest tort reform bill quite similar to one that Clinton had endorsed in the 1980s.

• Stripping protections from defendants.

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Give Norplant A Chance

by Stuart Taylor, Jr.

Now that Congress and President Bill Clinton have opted to use the threat of utter destitution to dissuade poor teen-agers and women from having children on the public dole, it’s time to revive a far more humane, and perhaps more effective, proposal with the same objective.

This idea surfaced briefly and spectacularly in 1990, when the Philadelphia Inquirer suggested in an editorial that perhaps some welfare mothers should be "offered an increased benefit" if they would agree to produce effective birth control-specifically, to use the then new Norplant contraceptive, which prevents pregnancy for five years after being implanted under the skin of the upper arm.

An uproar followed. The editorial writers-who had insensitively suggested a desire to reduce births of poor black babies in particular-were savaged by many Inquirer staffers and others as racist advocates of eugenics, even of "genocide." They also caught it from some abortion rights zealots-who bridle at any suggestion that the government should seek to influence anybody’s reproductive choices by means more potent than education and contraceptive giveaways-and from conservatives- who think the only proper way to discourage teen pregnancy is to preach abstinence.

Amid national publicity, the newspaper abjectly apologized 11 days later for having printed a "misguided and wrongheaded editorial opinion."

And ever since, the whole subject has been taboo, at least in the mainstream press. Although some slate and local officials, including former Gov. William Donald Schaefer of Maryland, have proposed various Norplant incentives, few if any on the national scene have dared mention the words welfare and Norplant in the same sentence at least in combination with incentive.

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A Constitutional Suicide Pact?

by Stuart Taylor, Jr.

"Defendants concede, for purposes of this [summary judgment] motion, and for no other purposes, that … in publishing, marketing, advertising and distributing Hit Man and Silencers, defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."

So stipulated Paladin Enterprises Inc., publisher of a book (Hit Man) that was used by a real hired killer, James Perry, to plan and execute three murders in Silver Spring, Md. Subtitled A Technical Manual for Independent Contractors, the book describes itself as "an instruction book on murder."

None of this has stopped media groups and free speech advocates-including the National Association of Broadcasters, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists-from rushing to the defense of Paladin’s First Amendment right to publish its murder manual with impunity.

While Perry sits on death row, these groups have joined in an amicus brief seeking summary judgment for Paladin and its owner, Peder Lund, in damage suits brought by survivors of the three victims. In March 1993, Perry shot Mildred Horn and her son’s nurse, Janice Saunders, three times each in the eyes (as advised by Hit Man); he smothered Horn’s quadriplegic eight-year-old son, Trevor, and pulled his breathing tube. The killer, who followed some 20 tips from Hit Man, was hired by the boy’s father, Lawrence Horn, who had hoped to inherit $1.7 million that his son had received in a malpractice settlement.

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Campaigning for the Bench

by Stuart Taylor, Jr.

If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit, running for a seal on the Georgia Court of Appeals Judge Gary Andrews, went on the attack with the first negative statewide television advertising campaign even seen in a Georgia judicial election.

Merrit’s 30-second ad assailed Judge Andrews for using "a technicality in 1991 to reverse me conviction of a man who had confessed to molesting his own four-year-old son. The ad stows Merritt saying: "People who commit aims against innocent children should be convicted and serve their entire sentences. Isn’t it time our judges protected us from criminals instead of protecting criminals from justice?"

The state Judicial Qualifications Commission denounced Merritt’s ad, in a June 28 advisory opinion, as violating Canon 7 of the slate’s Code of Judicial conduct, which is binding on all candidates in judicial elections. The commission-which reports to the state supreme court-noted that it "unfortunately" had no power to impose a prior restraint on speech. But if warned that any lawyer-candidate using an ad like Merrill’s could fee subjected to judicial discipline if he won and to state bar discipline if he lost.

The commission faulted me ad for "fail[ing] to disclose that the decision [written by Andrews… was by a 7-2 majority of its court; that cases, especially those on appeal arc frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal"

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Ducking Hopwood: The Passive Virtues

by Stuart Taylor, Jr.

At first blush, it seemed an abdication of responsibility when the Supreme Court declined to review the 5th Circuit’s sweeping decision barring all consideration of race in admissions at the University of Texas School of Law.

The July I denial of certiorari in Texas u Hopwood sowed confusion-probably into the next millennium-as to the legality of racial preferences in admissions everywhere. It left institutions in different states subject to disparate interpretations of the Constitution.

State universities in most of the country will presumably feel free to continue using racial preferences, reasoning that the Court’s 1978 decision in Regents of the University of California v. Bakke remains the law of the land.

But those in Texas, Louisiana, and Mississippi are subject to the 5th Circuit’s broad directives in Hopwood that Bakke is no longer good law, that universities may not consider race, and that any who do so risk punitive damage awards to rejected white applicants.

(While the 5th Circuit did say that preferences could theoretically be used to remedy an institution’s recent history of proven discrimination against minorities, no university appears to have such a recent history.)

Justice Ruth Bader Ginsburg’s one-page explanation for her vote to deny certiorari, joined by Justice David Souter, was less than convincing.

Ginsburg noted that Texas no longer defended the crude, quota-like admissions process that the law school had used in 1992 (when the case was filed), and that the record shed little light on the operation of the school’s current regime of racial preferences.

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One Cheer for the VMI Decision

by Stuart Taylor, Jr.

The Supreme Court probably reached the right result in its 7-1 decision striking down all-male education at the Virginia Military Institute, given the state’s failure to offer any genuinely equal opportunity to women.

But even so, the broad sweep of Justice Ruth Bader Ginsburg’s June 26 majority opinion in United States v. Virginia could end up doing more harm than good. The Ginsburg opinion contains some powerful and persuasive reasoning. But it unwisely and unnecessarily leaves a cloud over all single-sex education, especially in public institutions; it raises too high the constitutional barrier against sex-based governmental distinctions, at a time when sex discrimination by government is simply not a very serious problem; it flirts obliquely with the unprincipled double standard sought by many feminists, who want sex-based programs for females only; and it reads a bit too much like a symbolic affirmation of triumphant feminist ideology rather than a sober exercise in constitutional law.

Most of these points are well made in Justice Antonin Scalia’s dissent, which unfortunately undermines its own credibility by featuring wildly hyperbolic claims that the decision "shuts down" VMI and will "destroy" the place.

Hyperbole aside, Scalia may well be right- although I hope he’s wrong-in asserting that the Court’s rationale "ensures that single-sex public education is dead."

This prospect is especially troubling at a time when many educational experts and some feminists are citing powerful evidence that single-sex education can benefit girls and boys alike, and when there is a crying need to encourage experimentation with alternatives to current educational orthodoxies.