Category Archives: Legal Times

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

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Blazing a Trail Out of the Voting-Rights Brawl

by Stuart Taylor, Jr.

On June 28, 1993, in Shaw v. Reno, the Supreme Court held that it is presumptively unconstitutional (and too much like "political apartheid") for states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation-at least if the resulting shapes are "bizarre."

On June 30, 1994, in Johnson v. De Grandy, the Court suggested that the Voting Rights Act may often require states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation.

What’s a state supposed to do? Comply with the Voting Rights Act by violating the Constitution? Comply with the Constitution by violating the Voting Rights Act?

Or try to thread the needle, by somehow divining what the Court will deem too "bizarre" a shape, and then designing districts to pass that test (barely), while coming as close as possible to creating majority-minority enclaves in numbers proportionate to the racial makeup of the relevant population?

As the law now stands, many states (and courts) are likely to choose the latter course. They will extract from the voting-rights jurisprudence of the Rehnquist Court a peculiar touchstone: Go for proportionality, but don’t be too bizarre about it.

This sorry (not to say bizarre) state of affairs is what happens when a badly splintered Court-with warring camps that seem to talk past one another rather than to seek common ground-confronts an issue that calls for statesmanlike accommodation of two conflicting imperatives.

The first imperative is that Congress has properly decreed that in places where racial bloc voting predominates, majority-black and majority-Hispanic districts must sometimes be created to protect these traditionally underrepresented groups from having their voting power negated or diluted by submergence in a sea of whites.

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If O.J. Did It, Lock Him Up Forever

by Stuart Taylor, Jr.

Americans have a lamentable tendency to be overly punitive toward relatively minor criminals, like small-time drug couriers, and overly indulgent toward moneyed murderers with psychobabble sob stories, like the parricidal Menendez brothers.

Will O.J. Simpson be a beneficiary of the latter tendency, opening a new celebrity chapter in the how-to-get-away-with-murder’book? Or might his case mark a salutary turn toward taking death seriously, by locking killers up for the rest of their natural lives?

It must be stipulated that not quite enough evidence has so far been disclosed (or tested by the rigors of trial) to be certain that Simpson wielded the knife that so savagely tore into his ex-wife and the male friend whose body fell next to hers. The presumption of innocence has its claims-even though I have trouble imagining why a man who thought that someone else had just killed the woman he loved would be acting the way Simpson has been acting. (Example: His self-regarding "suicide" note, which says that "if we had a problem, it’s because I loved her so much" and that "[a]t times I have felt like a battered husband or boyfriend.")

But if the evidence does prove that Simpson killed Nicole Brown Simpson and Ronald Goldman, he should spend the rest of his life’ behind bars. The law needs to teach people a lesson that it has not been teaching in recent decades: If you murder another human being, you will be put away forever. No excuses. No parole. Period.

(I’m against the death penalty, but that’s another column.)

Anything like a 10-years-for-manslaughter outcome in Simpson’s case would further entrench our law’s longstanding bad habit of trivializing the battery and murder of women by their husbands and lovers. It would also advance the pernicious new trend toward letting killers avoid serious punishment by combining appeals for sympathy with deterministic explanations of their criminal behavior.

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Why Clinton Should Get Limited Immunity

by Stuart Taylor, Jr.

"The entire presidency could turn on the occurrence of a trial like this" -White House Special Counsel Lloyd Cutler, May 24, on "The MacNeil/Lehrer NewsHour."

Wow. That really lets the cat out of the bag. This stuff about "temporal immunity" (as Cutler called it) is not, at bottom, about diverting President Bill Clinton from his weighty duties or wasting his time (although Cutler stressed that, too). It’s about muffling potentially ruinous publicity.

That’s why all the president’s lawyers are cooking up arguments for putting Paula Corbin Jones’ sexual-harassment lawsuit on ice for as long as seven years.

The president is worried that the American people will turn from him in disgust if they have their noses rubbed in the spectacle of Arkansas state troopers, who were the then-governor’s bodyguards, swearing that Clinton regularly sent them out to procure women and had them arrange and conceal his extramarital encounters.

Worse, Trooper Danny Lee Ferguson, Clinton’s co-defendant, has told reporters (and might testify) that the president telephoned him several times dangling possible federal jobs, perhaps in the hope of keeping him quiet, and that Clinton operatives pressured him not to tell the truth. (The White House denies this.)

Worse still would be the spectacle of the president undergoing cross-examination about whether he had ever had Ferguson bring Paula Jones to him in a hotel room (as Ferguson and Jones have both said), and if so, for what purpose. The president has said- through his private lawyer, Robert Bennett-that he "has no recollection of ever meeting this woman." Nobody I know believes that.

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DOJ Nominee’s Authentic Black Views

by Stuart Taylor, Jr.

Starting in 1981, the Reagan administration adopted the civil-rights agenda of the Republican right wing. It was a cheap way to appease a key constituency. The Justice Department’s Civil Rights Division was put under William Bradford Reynolds, whose policies were skewed by preoccupation with the threat of quotas and reverse discrimination against white males: He adopted a tone of self-righteous ideological certitude that polarized debate and obscured the strengths of his own position.

Now it appears that the Clinton administration may be starting down a similar road by adopting the civil-rights agenda of the Democratic left wing-including a proclivity for pushing the use of thinly veiled racial quotas. The best evidence is President Bill Clinton’s nomination of Lani Guinier, an impressive litigator-scholar with some alarmingly radical views, to head the Civil Rights Division.

Guinier sees white racism as an evil so pervasive and persistent as to require the most drastic of remedies-like junking "American majoritarianism" in favor of court-ordered allocation of "proportionate power" among racial blocs in legislative bodies. She says that civil-rights enforcement is and must be "a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal." She suggests black legislators are "authentic representatives" only if they "are politically, psychologically, and culturally black."

And she has reviled Reynolds, six Supreme Court justices, and others with a bitterness and stridency that makes Reynolds’ rhetoric seem almost mild by comparison.

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Justice Byron White: The Consistent Curmudgeon

by Stuart Taylor, Jr.

The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.

The 75-year-old White’s announcement on Friday that he would retire at the end of the current Court term provides an occasion for revisionism

Crusty he is, with a vengeance. This is a man of whom it was said, when he was the nation’s best college football player 56 years ago, that he was fast enough to run around defenders, but mean enough to prefer running through them instead and blasting them out of the way with his forearms. A lot of lawyers who have been bullied from the bench by White’s coldly penetrating questions would say he hasn’t changed much. So would a lot of former law clerks who have tasted White’s el-bows while going up for rebounds. ("The basketball court’s the only time I’ve ever really see him get close to people," says one.)

Nor has White’s ideology changed much, if at all. He never was the kind of liberal that the Kennedy name has come to stand for. (Nor was JFK, for that matter.) And he is not really a full-dress Rehn-quistian conservative now, except on a bunch of high-profile issues that have come to dominate headlines about the Court over the past two decades.

White’s jurisprudence has been characterized by the independence of a self-made, small-town Coloradan who grew up poor; the hard, hands-on work of a man who is at his desk at 7 a.m.; a dogged, unflashy consistency that bespeaks fundamental integrity; and the judicial self-restraint of a man who told the Senate Judiciary Committee during his 15-minute confirmation hearing in 1962: "I feel the major instrument for changing the laws in this country is the Congress of the United States."

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Clinton Flouts the Rule of Law

by Stuart Taylor, Jr.

President Bill Clinton’s embrace of a policy that candidate Clinton had unambiguously denounced is immoral and "illegal" is a discouraging sign for those of us who have looked to him to restore executive-branch respect for the rule of law.

Last July 29, Clinton said: "The [U.S.] Court of Appeals [for the 2nd Circuit] made the right decision [today] in overturning the Bush administration’s cruel policy of returning Haitian refugees to a brutal dictatorship without an asylum hearing."

But on March 2, President Clinton sent a Justice Department lawyer to the Supreme Court to urge reversal of the 2nd Circuit and to bless his perpetuation of the Bush policy, which critics have aptly dubbed a "floating Berlin Wall."

President Clinton, like President George Bush before him, is blocking Haitians from fleeing their island prison for the United States or anywhere else, by seizing them on the high seas and forcibly returning them to their persecutors, without even a cursory hearing for those seeking refuge from political terror.

Here’s how the president explained this flip-flop, on March 2: "I mean, you know, something that was never brought up before , but is now painfully apparent, is that if we did what the plaintiffs in the court case want, we would be consigning a very large number of Haitians, in all probability, to some sort of death warrant." Many would swamp and drown after setting sail in rickety boats, he suggested.

President Clinton’s claim that the danger of drownings "was never brought up before" is simply false; the Bush administration had proclaimed that danger since the May 24 executive order that created the floating Berlin Wall.

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Glimpses of the Least Pretentious of Men

by Stuart Taylor, Jr.

Justice Thurgood Marshall was sitting in his chambers, spinning yarns.

 The night before, he had been watching former President Jimmy Carter’s speech to the 1988 Democratic National Convention on TV. "I said to my wife, ‘Babe, he sure looks old,’" Marshall (then 80) recalled with a puckish grin. "And she said, ‘Have you looked in the mirror lately?’

"Every once in a while," added the greatest lawyer of the 20th century, "you have to look yourself in the mirror and ask yourself, ‘Who do you think you are? You aren’t so special.’"

One of the special things about Thurgood Marshall was that-long after his place in history had been secured-he was the least pretentious of men.

At one Supreme Court conference, he told colleagues a story about a little boy who had asked for his autograph and then handed him eight cards to sign. Why eight? "Because," the boy explained, "eight of yours gets me one of Willie Mays’."

Marshall also had a warm appreciation of people as people, their foibles and their virtues. He consented to talk privately with me a few times over the last few years about the Court and other justices, and on those visits I was always struck by his generous reservoir of good will for people with whom he deeply disagreed and his sheer love of fun. I have culled from my notebooks a few examples that I hope Marshall would not mind my quoting now.

The sometimes startlingly gruff exterior that he showed the public seemed to run about a millimeter deep. "What the hell do you want?" Marshall growled as I arrived for one appointment. Within moments, the growl gave way to his trademark, high-pitched "Hee-hee-hee," as he meandered from salty appraisals of public figures to tales of tangling with Gen. Douglas Mac Arthur in Korea.

Kind Words

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Lying to Congress: Time for New Law

by Stuart Taylor, Jr.

Some of us used to think it was pretty clear that lying to Congress is a crime. After all, even Ronald Reagan conceded the point. And the Supreme Court has so held.

But it’s apparently not clear enough, and restorative work by Congress and the incoming Clinton administration is needed. As evidenced by President George Bush’s smarmy apologia for executive-branch lying in his Christmas Eve pardons of six Iran-Contra defendants, any consensus that such conduct warrants prosecution has been shaken by the bitterly partisan inter-branch warfare of recent years.

The six-year-long conservative crusade to trivialize and misrepresent the lying-to-Congress prosecutions of the Iran-Contra defendants and to demonize Independent Counsel Lawrence Walsh has obscured what is ultimately at stake here: the rights of the American people, through their elected representatives, to demand and receive an honest accounting of what their government is doing.

At first, apologists for the Iran-Contra liars concentrated on distorting the facts by suggesting, preposterously, that they had not lied to Congress at all. Now President Bush, in styling the convicted and accused liars whom he pardoned as patriotic victims of "the criminalization of policy differences," seems implicitly to espouse something like a privilege for executive-branch "combatants" in the "political arena" to deflect congressional inquiries by lying.

It has become a kind of covert conservative credo that executive-branch lying to Congress (not to mention the press) is not really a crime. Conservative commentator Terry Eastland comes close to saying so directly, in a thoughtful article contending that it is "unjust … to apply the criminal law to individuals who in the course of representing the executive branch especially over highly disputed policies are said to have lied to Congress."

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Clinton and the Quota Game: Round One

by Stuart Taylor, Jr.

Bill Clinton’s outburst last week at women’s groups who were "playing quota games" by carping about the number of women in his Cabinet was a welcome gesture of independence from the parochial agendas of Democratic interest groups. But it was also vaguely reminiscent of Lord Byron’s line about a conflicted maiden:

A little she strove, and much repented.

And whispering "I will ne’er consent"-consented.

Even as he denounced "quota games, Clinton was accommodating the quota psychology by giving assurances that his ”look like America" Cabinet would have at least four women (it does), and by suggesting that one or more prime candidates had been nudged aside on grounds of white maleness. Indeed, the Clinton transition team had signaled for weeks that no males-at least, no white males-would even be considered for attorney general.

The scuffling over the Clinton Cabinet’s chromosome count is a harbinger of a far more consequential, if less visible, struggle that will rage inside the Clinton coalition in 1993 and beyond, over how hard civil-rights enforcers should push the nation’s employers to pursue diversity through use of preferences for women and, especially, minorities.

Striking the right balance in this area will be exceedingly difficult even for one so adroit as Clinton at tempering his commendable pursuit of diversity with a well-timed shot at quota-minded "bean counters." The greatest danger to Clinton, and to this multiracial nation’s future, is that his administration will quietly succumb to unrelenting pressure from civil-rights and women’s groups to adopt their legal agenda wholesale. This would not merely give employers a healthy incentive to seek diversity; it would institutionalize something very like quotas throughout the American work force.

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Taking Justice Beyond Mud-Slinging

by Stuart Taylor, Jr.

The gridlock symbolized by ever-mounting budget deficits is not the only noxious legacy of decades of divided government that the Clinton administration will inherit.

There is also the scandal syndrome: the corrosive atmosphere of mutual mistrust that poisons public discourse whenever any suspicion of official misconduct arises. As illustrated by the latest round of mud-slinging in the "Iraqgate" affair, the executive branch, Congress, and the press are all too quick to presume bad faith by one another in dealing with such matters. The result is to compound public cynicism about all of these vital institutions.

Maybe Bill Clinton can do something to break this destructive syndrome. He should at least try. It would be nice to avoid repetition of the spectacle that unfolded last week.

In his Dec. 9 press conference exonerating the Justice Department of cover-up charges, former federal judge and prosecutor Frederick Lacey-a Republican handpicked by Attorney General William Barr to pre-empt demands for a court-appointed independent counsel to probe Iraqgate-came across as intemperate, injudicious, closed-minded, and arrogant to the point of egomania.

Lacey’s two-hour tirade was characterized by blunderbuss attacks on the press and Democrats in Congress for "arrant nonsense"; unresponsive, rambling, and combative answers to entirely reasonable questions; revealing admissions of gaps in his hasty inquiry; uncritical acceptance of officials’ protestations of pure motives; and insistent self-promotion as the world’s toughest investigator.

Congressional Democrats compounded the spectacle that same afternoon by faxing out press releases trashing Lacey’s 190-page public report as a whitewash before they could possibly have read it.