Category Archives: National Journal

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Opening Argument – Choosing the Next Attorney General

by Stuart Taylor, Jr.

National Journal

This is not a prediction that Alberto Gonzales will be driven from office because of the incompetence and untruthfulness recently manifested by the botched firings of eight U.S. attorneys and the multiple misleading and inconsistent explanations thereof. Even if President Bush’s buddy hangs on until 2009, the Senate should henceforth reject any attorney general nominee whose only outstanding qualification is his or her relationship with the president. Democrats who want to run Gonzales out of town should also pledge that they will never again support a nominee of either party who is as ill-qualified as Gonzales is or — for that matter — as Robert F. Kennedy was in 1961.

Hindsight shows that RFK turned out to be a pretty good AG in many ways. (Approving FBI wiretaps of Martin Luther King Jr. was not among his better ideas.) But as of 1961, his main qualification was that he was the president’s brother.

The Justice Department, which employs 110,000 people, is entrusted with advising the president and other federal officials on the limits of their powers; safeguarding our civil liberties; evenhandedly enforcing laws on terrorism, national security, civil rights, the environment, white-collar crime, antitrust, and narcotics; choosing judges; and running the FBI and the federal prison system.

Its prosecutors have "more control over life, liberty, and reputation than any other person in America," as then-Attorney General (and later Justice) Robert Jackson said in a famous 1940 speech to an assembly of U.S. attorneys.

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Opening Argument – A Right to Keep and Bear Arms?

by Stuart Taylor, Jr.

National Journal

The U.S. Court of Appeals for the District of Columbia Circuit issued the biggest gun control decision in decades on March 9, perhaps setting the stage for the biggest Supreme Court gun control decision ever. Rejecting the views of most other courts, Judge Laurence Silberman held for the 2-1 majority, "The Second Amendment protects an individual right to keep and bear arms" — not just to have guns when needed for service in now-defunct state militias. On this basis, the majority struck down the District of Columbia’s uniquely broad ban against having either a pistol or an operational rifle, even at home for self-defense against intruders.

The decision, Parker v. District of Columbia, is right and should be affirmed. And contrary to a widespread myth, confirmation by the justices that Americans have an individual right to keep and bear arms would not invalidate reasonable gun control laws.

To put my own biases on the table: I don’t hunt or own a gun. I support reasonable gun controls but consider the D.C. law unreasonable. I had never fired a pistol until a recent vacation trail ride, when I missed a large target with all six shots. This amused my 19-year-old daughter, who scored five out of six.

Now to the Second Amendment. It states: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, most courts and legal scholars have treated this as essentially a dead letter. Their reasoning goes like this: The amendment’s first clause means that its sole purpose was to guarantee each state a collective right to have self-armed private citizens available as a military force-in-waiting (militia) to fight off federal encroachments; therefore, the second clause protects no individual right; state militias long ago became defunct; so the Second Amendment is an inoperative historical anachronism.

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Opening Argument – The Supreme Court: Place Your Bets

by Stuart Taylor, Jr.

National Journal

A year after conservative Justice Samuel Alito succeeded liberal-leaning Justice Sandra Day O’Connor, a disagreement between two of the nation’s best legal journalists about how much President Bush has transformed the Supreme Court prompts this challenge to Court-watchers:

What will the legal landscape look like in 10 years? Make your predictions and place your bets.

In a widely acclaimed book full of revelations about behind-the-scenes battles over the Court, Jan Crawford Greenburg, now of ABC News, says that after decades of disappointment, conservatives have finally won the day. The appointments of Alito and Chief Justice John Roberts will produce a "profound and lasting alteration," Greenburg writes in Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. They and their allies will now engineer "one of the most fateful shifts in the country’s judicial landscape in a generation … with repercussions as yet unimagined," she predicts.

"I’m not holding my breath," retorts Benjamin Wittes in The New Republic Online. Wittes, an author and a guest scholar at the Brookings Institution who until recently wrote the nation’s smartest legal editorials for The Washington Post, highly recommends Greenburg’s book (as do I) for its "genuinely spectacular" reporting. But he dissents from her view that Bush has set the stage for an era of conservative hegemony.

To advance this intriguing discussion, I offer specific predictions below and invite others to offer theirs.

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Opening Argument – The Case for a National Security Court

by Stuart Taylor, Jr.

National Journal

A front-page, February 20 federal appeals court decision moved another big "enemy combatant" case down the road toward an eventual Supreme Court decision, probably in June 2008. But the outcome, like the current situation, will be unsatisfactory no matter how the justices rule.

This problem is one that only Congress can solve: how to handle appeals by foreigners who are detained indefinitely as enemy combatants by U.S. forces abroad but who claim to be innocent civilians. Despite two new laws over the past 14 months, Congress has not yet devised a process that is either effective in catching and incarcerating bad guys or fair in the exacting eyes of world opinion.

The justices cannot solve this problem without unseemly gymnastics, because current law presents them with two bad alternatives. The first would be to uphold the sharp restrictions on federal judicial review of appeals by militarily detained terrorism suspects that Congress imposed in the October 2006 Military Commissions Act. That’s what a sharply divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit did on February 20, in Boumediene v. Bush.

But as my December 16 column details, the MCA, even if constitutional, is neither fair to detainees nor credible to world opinion. It is thereby self-defeating, because it makes it harder to get other nations to help us get our hands on bad guys in the first place.

For these reasons the justices may well reverse the D.C. Circuit and strike down the relevant MCA provisions. Such a decision could, if written broadly, give every suspected terrorist captured anywhere in the world a historically unprecedented federal constitutional right to file a habeas corpus petition in federal district court demanding legal representation, release, a ban on interrogation, and/or nicer conditions of confinement. Such an outcome might (or, in these times, might not) satisfy world opinion.

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Opening Argument – Irrational Sentencing, Top to Bottom

by Stuart Taylor, Jr.

National Journal

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds. Yes, Ebbers and Skilling are world-class crooks. The first helped inflate WorldCom’s profits by billions of dollars. The second presided over the multiple frauds that caused the collapse of Enron, the largest corporate bankruptcy in history. They helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most murderers? (The average federal sentence for murder is less than 19 years.) Does it call for keeping Ebbers in prison until he is 87 and Skilling until he is 73? Those were the no-parole penalties specified by the U.S. Sentencing Commission’s guidelines, even if both men earn the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage severity of our sentencing laws. Worse still are the long terms imposed on the scores of thousands of nonviolent, nondangerous drug offenders now rotting in state and federal prisons around the country.

But while we have become numb to the minimum drug sentences mandated by Congress since 1986 (which have driven up the sentencing commission’s guidelines as well), Ebbers’s and Skillings’s near-life-terms are fresh reminders of how wantonly our sentencing laws trash the lives of nonviolent convicts at the top and the bottom of the income scale.

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Opening Argument – The Great Black-White Hope

by Stuart Taylor, Jr.

National Journal

Whether Barack Obama would be a better president than Hillary Rodham Clinton, or John McCain, or Mitt Romney is an interesting and debatable question. But it is beyond debate that an Obama win in 2008 would be by far the best thing that has happened to African-Americans, and to race relations, in more than 50 years.

Obama embodies and preaches the true and vital message that in today’s America, the opportunities available to black people are unlimited if they work hard, play by the rules, and get a good education.

Electing a charismatic, intellectually supercharged African-American president who preaches hope and opportunity would do more than anything else imaginable to tell young black people what they need to hear: This land is your land. And more than any other, it is a land of opportunity.

This is not the message that African-Americans have been getting over the past few decades from the media or from the "leaders" aptly described in the subtitle of the fine 2006 book by NPR senior correspondent Juan Williams, Enough: The Phony Leaders, Dead-End Movements, and Culture of Failure That Are Undermining Black America — and What We Can Do About It.

One thing we can do about it is to focus attention on can-do black leaders and thinkers such as Barack Obama, former Rep. Harold Ford, D-Tenn., Rep. Artur Davis, D-Ala., Colin Powell, Cory Booker, Donna Brazile, Bill Cosby, Oprah Winfrey, Tiger Woods, and Thomas Sowell.

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Opening Argument – This Time, Let’s Get It Right

by Stuart Taylor, Jr.

National Journal

One of the first orders of business for the new Democratic Congress should be legislating better safeguards against mistaken incarcerations of terrorism suspects and attaching the language to a veto-proof defense spending bill.

This would not only avoid needless imprisonment of harmless innocents. It would also help win the war against Islamist terrorism by reassuring allies and potential allies abroad that we are the good guys — and that America is still a safe place to visit.

In the five years since 9/11, the Bush administration has grabbed and imprisoned suspected "enemy combatants" without due process in Peoria and Chicago as well as in Afghanistan and elsewhere. But we still don’t have a decent system for sorting out dangerous jihadists from harmless bystanders.

It’s time we got this right. And although the need for Congress to protect against the possibility of unwarranted electronic eavesdropping gets far more attention, the need for it to end the current reality of long-term imprisonment of innocent people is far, far more important.

The Bush administration, mistaking its own incompetence for infallibility, has shown such indifference to the risk of erroneous detentions as to draw a succession of Supreme Court rebukes while making "Guantanamo" an anti-American rallying cry around the world. Meanwhile, President Bush continues to claim sweeping power to seize foreign students, tourists, and other visitors anywhere in the U.S. and lock them up for years — even for life — without ever producing real evidence of involvement in terrorism.

Congress has made two well-intentioned efforts to straighten out this executive-detention mess. But by severely curbing judicial review of executive detentions, the December 2005 Detainee Treatment Act and this October’s Military Commissions Act have actually made things much worse.

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Opening Argument – A Different Way to Integrate Schools

by Stuart Taylor, Jr.

National Journal

Is the Supreme Court about to kill all hope of racially integrating public schools? You might think so, based on the reactions of civil-rights groups, editorial writers, and others to two cases argued before the justices on Monday. They involve programs adopted by school boards in the Louisville, Ky., area and Seattle to promote racial balance in their schools despite segregated housing patterns.

The five more-conservative justices seem poised to strike down both of these plans and to ban — or severely restrict — consideration of any student’s race in deciding what school he or she may attend. But the news is not all bad for those of us who share the four liberal justices’ sense that more racial integration would give many students better educations and foster interracial understanding and social cohesion.

There is another — perhaps better — way to pursue these goals, one that also happens to be legally unassailable. This is to take account of students’ socioeconomic status in making school assignments and to give underprivileged students — who are disproportionately black or Hispanic — the opportunity to attend middle-class schools.

Some 40 school districts with about 2.5 million students, including Wake County, N.C. (Raleigh and suburbs), and San Francisco, already have such class-based programs. In Wake County, the school board replaced a long-established racial desegregation program in 2000 with one designed to keep the number of students eligible for subsidized lunches below 40 percent and the number who are not performing at grade level below 25 percent at every school.

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Opening Argument – Global Warming: Time for a Court Order

by Stuart Taylor, Jr.

National Journal

The Supreme Court seemed split 4-4, with Justice Anthony Kennedy on the fence, during spirited arguments on Wednesday in a potentially momentous case on global warming. Memo to Kennedy’s law clerks: The justices should order the Bush administration to come to grips with the need to curb the emissions of carbon dioxide and other greenhouse gases that contribute to what could become catastrophic climate change.

This is not to deny that curbs on emissions might be futile and thus wasteful. The costs of achieving major reductions in the near term might be prohibitive. Meanwhile, soaring greenhouse-gas emissions in China, India, and other rapidly industrializing countries could swamp any government-mandated cuts in America.

But consider the alternative. If the government keeps temporizing on this issue, we may eventually see coastal cities under water, glaciers gone, arable lands turned into desert, massive extinctions of animal and plant species, more killer storms, and other disasters. More to the point for the justices, the Environmental Protection Agency’s head-in-the-sand, we-don’t-want-to-know posture about the dangers of global warming violates the Clean Air Act.

The Court need not decide how grave the danger is, how much should be invested in reducing emissions, or even whether EPA should regulate them at all. It need only require the agency to take its head out of the sand. Specifically, the plaintiffs — Massachusetts, 11 other states, some cities, and others — ask only that the justices order EPA to make an official, yes-or-no finding, after formal consideration, that answers this question: Are greenhouse gases a kind of air pollution that, by contributing to climate change, may — in the words of the Clean Air Act — "reasonably be anticipated to endanger public health or welfare"?

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Opening Argument – Michigan Voters Defy the Establishment

by Stuart Taylor, Jr.

National Journal

A November 7 ballot proposal in Michigan drew passionate attacks from the Democratic Party, Big Business, unions, universities, the major newspapers, and religious, civic, and civil-rights groups. It drew tepid opposition even from the state’s top Republicans.

Among the attacks:

•"The proposal could have remarkably negative effects on … breast cancer screenings [and] domestic-violence shelters for women," editorialized The Detroit News.

•"It will immediately eliminate opportunities for women and minorities to have equal access to jobs, education, and contracts in Michigan," said a flier highlighted on the Web site of One United Michigan, the major establishment opposition group.

•It would "give [the state’s] universities, its local governments, its counties, and its state bodies the right to discriminate against blacks, Latinos, and women in violation of our federally guaranteed equal-rights protections," said By Any Means Necessary, the shorthand name of a more radical opposition group.

What is this horrible monstrosity? And why did Michigan’s voters adopt it by 58 percent to 42 percent after a campaign in which opponents outspent supporters by 4-to-1?

The Michigan Civil Rights Initiative, as supporters call it, amends the state constitution by outlawing racial discrimination against Asians and whites — as well as against blacks and Hispanics — in certain public programs. This is what Congress thought it had done in the 1964 Civil Rights Act before the courts went to work on it.