Category Archives: National Journal

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Opening Argument – Polarization Hurts Security — and Liberty

by Stuart Taylor, Jr.

National Journal

Did you know that the Bush administration is pushing Congress to approve a long-term regime of governmental eavesdropping without judicial warrants on the overseas phone calls and e-mails of countless Americans?

And that the administration still insists on using interrogation techniques so coercive that human-rights groups call them torture?

And that it claims the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review?

All true. And all horrifying to the American Civil Liberties Union, international human-rights groups, and self-righteous Europeans.

It’s also true, however, that most congressional Democrats support warrantless eavesdsropping on the overseas communications of countless Americans. (See my colleague Shane Harris’s "A Court at the Crossroads," p. 62.)

It’s further true that, although both have waffled lately, Sen. Hillary Rodham Clinton and former President Clinton have supported forms of coercive interrogation that horrify human-rights groups. So will the next president, no matter who wins.

Finally, the Clinton administration itself claimed the power to hold dark-skinned foreigners in Guantanamo Bay prisons without meaningful judicial review. Those were refugees fleeing Haiti, not suspected terrorists. And although most Democrats now support searching judicial review of the current Guantanamo detentions, as I do, there is broad bipartisan support for holding those found to be enemy combatants even if they have committed no crimes or cannot feasibly be prosecuted.

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Opening Argument – Affirming Justice Thomas

by Stuart Taylor, Jr.

National Journal

For all the new attention focused on the tired old arguments about whether Clarence Thomas did or did not talk dirty to Anita Hill almost 25 years ago, his recently published memoir raises far more consequential issues. At the top of the list is Justice Thomas’s impassioned account in My Grandfather’s Son and recent media interviews of his conviction that racial affirmative-action preferences do African-Americans more harm than good.

The Thomas memoir brings this complaint to the fore at a time when a little-noticed battle is raging over an impressive and growing body of social-science research that offers some empirical support for Thomas’s view. This research suggests that preferences set many black students up for failure, as well as stigmatize the accomplishments of those who succeed and divert attention from the real causes of racial inequality.

So unsettling is this research — led by Richard Sander, a UCLA law professor and statistician — that affirmative-action champions are desperately seeking to deny Sander and other scholars access to the empirical databases that could provide even more graphic evidence of the costs of using heavy-handed preferences to engineer diversity.

Sander’s sophisticated statistical analyses suggest that racial preferences place so many black students into highly competitive law schools for which they are underqualified — and thus likely to fail — that there are actually fewer black lawyers than there would be if admissions were color-blind. Other scholars of diverse ideological views have joined Sander in seeking to shed more light on the validity (or invalidity) of his findings.

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Opening Argument – Criminal Injustice and Race

by Stuart Taylor, Jr.

National Journal

It is regrettable that the legend of the "Jena Six" has for many become the leading symbol of the grave injustices to African-Americans that pervade our nation’s penal system. The legend is partly false. And the notion that racism is the main reason for the injustices to hundreds of thousands of black defendants around the nation is entirely false.

To be sure, there is still too much racism among prosecutors, judges, and jurors. But this is far less widespread and virulent, even in Jena, La., than Al Sharpton and Jesse Jackson — the media-anointed (albeit, repeatedly discredited) African-American "leaders" — like to pretend. There are still too many unwarranted prosecutions of innocent minority (and other) defendants, as detailed in my August 4 column, "Innocents in Prison." But the vast majority of those prosecuted are guilty, as may prove to be the case with some or all of the Jena Six.

Rather, the heart of the racial injustice in our penal system is the grossly excessive punishment of hundreds of thousands of nonviolent, disproportionately black offenders whose long prison terms ruin countless lives and turn many who could have become productive citizens into career criminals.

The Supreme Court heard two cases on October 2 that focus on a relatively small piece of this problem: how much discretion federal district judges have to depart from federal sentencing guidelines that provide savagely severe prison terms for small-time drug offenders, among others. The most savage penalties of all are for people — overwhelmingly, black people — caught with fairly small amounts of crack cocaine.

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Opening Argument – Free Speech and Double Standards

by Stuart Taylor, Jr.

National Journal

In the matter of the Holocaust-denying, terrorism-sponsoring, nuke-seeking, wipe-Israel-off-the-map-threatening, we-got-no-gays-in-Iran-spouting Mahmoud Ahmadinejad and his September 24 showcase speech at Columbia University: It would be easier to stomach the free-speech grandstanding of Lee Bollinger, Columbia’s president and Ahmadinejad’s histrionically hostile host, and others of Bollinger’s ilk if they were a bit less selective in their devotion to the First Amendment. When a student group recently canceled an event featuring an anti-illegal-immigration speaker for fear of a hecklers’ veto by leftist students, for example, Bollinger had nothing to say.

Looking to the other coast, it would be easier to admire the indignation of certain academics and journalists at the temporarily shabby treatment of crusading liberal constitutional scholar Erwin Chemerinsky by the University of California (Irvine) if those same people had also spoken out against the far more widespread campus censorship of less liberal figures.

Those most recently censored include former Clinton Treasury Secretary Lawrence Summers, a mainstream Democrat whose invitation to speak to the University of California Board of Regents was derailed by the same sort of politically correct faculty mob that drove him from Harvard University’s presidency in February 2006.

As to Bollinger, let’s assume for the sake of argument that it was wise to provide Ahmadinejad with one of the very few forums in which he could score propaganda points around the world by winning televised applause from an American audience while being hectored by an American big shot.

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Opening Argument – Reagan Was Right

by Stuart Taylor, Jr.

National Journal

Are we safer than we were six years ago? Emphatically not. The risk that we will see American cities go up in smoke has steadily increased since 9/11. The main reason is not the Iraq war or Al Qaeda’s revival. It’s not the surging numbers of America-haters and would-be terrorists, or the most publicized failings of the Bush administration, or the supposed weakness of the Democrats.

Rather, the central threat is the spread of nuclear weapons and bomb-building programs to more countries. The new nuclear threats already include the unstable Pakistani regime, the evil North Korean regime, and (before long, perhaps) the lunatic Iranian regime. More than anything else, such nuclear proliferation increases the risk that terrorists will get and use nukes.

At least as terrifying is the risk that a false alarm will spur someone to launch a multiple-missile attack — perhaps Pakistan against nuclear-armed India or vice versa, perhaps Russia (by mistake) against America — with catastrophic effects on all involved and, ultimately, on the entire human race.

We must work harder to keep nukes out of the hands of terrorists, especially through underfunded efforts such as the Nunn-Lugar program to secure and dismantle nuclear weapons and materials in the former Soviet Union. We must also better secure our borders to keep terrorists from smuggling in nuclear bombs. But such measures are, at best, fingers in the dike.

If a nuclear bomb went off in an American city today, our leaders would probably not know who did it. But at least the list of suspected sources of supply — North Korea, rogue Pakistani generals, loose nukes in Russia, or terrorists who acquire them — would be short. This would increase the chance of identifying and obliterating the supply source. And that is a pretty good deterrent against any rogue state that might want to attack us through terrorist proxies.

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Opening Argument – Law Should Trump Loyalty

by Stuart Taylor, Jr.

National Journal

For all the partisan bitterness in the air and the messes that Attorney General Alberto Gonzales has made, it shouldn’t be that hard for President Bush to replace him with someone far, far more effective. Nor should it be hard to get a conservative Republican nominee of quality confirmed without giving away the store to Democrats or weakening the presidency.

In particular, the right nominee could get through the Senate without caving in to the demands of some Democrats that a special prosecutor be appointed to investigate the White House role in the firings of nine U.S. attorneys, or that Bush abandon his claims of executive privilege.

The big question, at this writing, is whether a president who so clearly values lapdog loyalty over competence, integrity, and independence can bring himself to invert those priorities.

If the nominee inspires bipartisan trust, who needs special prosecutors with their built-in bias toward investigative overkill? The amazingly still-unexplained U.S. attorney firings do smell fishy and do need to be investigated energetically. But this ain’t Watergate. The American people get that.

There is, to be sure, something to the complaint by David Rivkin and Lee Casey, in an August 29 Wall Street Journal op-ed, that "the only unifying theme congressional Democrats have exhibited since taking control last January is an unremitting hostility toward President Bush in particular, and executive power in general."

Any nominee will face a tough confirmation hearing.

But even those Senate Democrats most eager to rub Bush’s nose in the dirt understand that if they come off as obstructionist, or beat the tired "special prosecutor" drum too incessantly, the electorate will punish them. And their hostility to executive power is tempered by their confidence that it will belong to them as of January 20, 2009.

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Opening Argument – Innocents in Prison

by Stuart Taylor, Jr.

National Journal

As recently as 20 years ago, it was extraordinarily rare for a convicted prisoner to establish his or her innocence conclusively enough to get public attention. That changed with breakthroughs in DNA science.

The 205th DNA exoneration since 1989 was recorded earlier this month by the Innocence Project, a group of crack defense lawyers who have made such cases their mission. The exonerated prisoners — including 15 who had been sentenced to death — have been found innocent by courts, prosecutors, or governors based on post-conviction DNA testing.

But America has been too slow to appreciate that the DNA exonerations, and other evidence, suggest that many thousands of other wrongly convicted people are rotting in prisons and jails around the country. And our federal, state, and local governments and courts have done far too little to adopt proposed criminal justice reforms that could reduce the number of innocent people convicted while nailing more of the real criminals.

The case of the most recent DNA exonoree, Byron Halsey, was typical: Based on a confession full of obviously false details, extracted by high-pressure interrogation, he spent 19 years in prison in New Jersey for two heinous child murders committed by another man in 1985. Halsey was able to prove his innocence only after a 2002 New Jersey law forced reluctant prosecutors to give his counsel access to DNA evidence. In Halsey’s and some 70 other DNA-exoneration cases, DNA also helped to establish the guilt of the real perpetrators. All or almost all had committed other violent crimes before being caught.

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Opening Argument – Shortsighted on Judges

by Stuart Taylor, Jr.

National Journal

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges — liberal and conservative alike — are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

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Opening Argument – Are the Democrats Serious?

by Stuart Taylor, Jr.

National Journal

So far, at least, both sides deserve to lose the brewing battle over congressional Democrats’ subpoenas for information about White House deliberations on the firings of nine U.S. attorneys.

The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.

"Presidents who really care about executive privilege and secrecy don’t make the claims about confidentiality and evading legal rules wantonly and libidinously," asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Clinton for misusing executive privilege to shield himself.

The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else-besides beat their chests in righteous rage-that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of former White House Counsel Harriet Miers and political aide Sara Taylor.

But the Democrats could change this equation by showing that their subpoenas have a legislative goal that transcends embarrassing President Bush.

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Opening Argument – Is There a Middle Ground on Race?

by Stuart Taylor, Jr.

National Journal

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.