Category Archives: National Journal

Posted on

Opening Argument – Supreme Confusion

by Stuart Taylor, Jr.

National Journal

"KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II — A and III, in which STEVENS, SOUTER, GINSBURG, AND BREYER, JJ., joined, an opinion with respect to Parts I and IV, in which ROBERTS, C.J., and ALITO, J., joined, an opinion with respect to Parts II — B and II — C, and an opinion with respect to Part II — D, in which SOUTER and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BREYER, J., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. BREYER, J., filed an opinion concurring in part and dissenting in part. ROBERTS, C.J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which ALITO, J., joined. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined, and in which ROBERTS, C.J., and ALITO, J., joined as to Part III."

Thus concludes the nine-page summary ("syllabus") of the 132 pages of opinions — six in all, none winning the full assent of more than two justices — of the second big Supreme Court decision this week involving judicial superintendence of the political process.

This was the June 28 decision that rejected, 5-to-sort-of-4, a constitutional challenge to the Texas Legislature’s mid-decade partisan gerrymander of the state’s 32 congressional districts (holding No. 1) while ruling, by a differently constituted 5-to-4, that the Voting Rights Act requires redrawing one district to give it a Hispanic voting-age majority (holding No. 2).

Posted on

Opening Argument – Where’s the Outrage?

by Stuart Taylor, Jr.

National Journal

Back in 1998, when I was excoriating President Clinton for perjury and obstruction of justice, I had plenty of Republican company. This, my Republican friends and I agreed, was serious business.

But some Clinton-bashing conservatives have reacted rather differently to the alleged grand jury perjuries, lies to the FBI, and obstruction of justice for which I. Lewis (Scooter) Libby, Vice President Cheney’s former chief of staff, stands indicted.

These conservatives go beyond claiming that the evidence that Libby lied is weak — which is fair game, albeit unpersuasive (in my view) — to trivializing any cover-up as not very serious anyway. They remind me of the many Democrats who trivialized Clinton’s multiple perjuries and suborning of perjury as mere "lying about sex."

These days, the leader of the who-cares-about-perjury pack is The Wall Street Journal’s editorial page — the "Daily Diatribe of the American Right," as it was called in the headline of a 1989 American Lawyer piece (by me).

In 1998, The Journal saw criminal cover-ups — even of matters that were not themselves crimes — as a big deal. "The latest Clinton scandal involving Monica Lewinsky is titillating because of sex," The Journal editorialized then, "but it derives its legal and political importance from the issues of perjury and obstruction of justice."

Back then, other respected conservatives — Mary Matalin and William Kristol, for example — were even more emphatic about what Matalin called Clinton’s "perjury, suborning perjury, obstruction of justice, conspiracy." They have a far more dismissive view of the evidence of high-level lies underpinning the indictment of Libby and the near-indictment of Karl Rove.

Posted on

Opening Argument – How Racial Preferences Backfire

by Stuart Taylor, Jr.

National Journal

Most — if not all — of the nation’s leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white.

But these preferences are at best a mixed blessing — and are often a curse — for their recipients. After a year or two on the job, most minority associates at big firms get less desirable assignments and less training than their white counterparts. Many become discouraged and embittered. Young black lawyers leave big firms "at two or three times the rate of whites."

These problems plague minority lawyers precisely because of the racial preferences that got most of them hired. By lowering the big firms’ usual hiring standards, large preferences bring "disparities in expectations and performance that ultimately hurt the intended beneficiaries."

These are among the conclusions copiously documented by Richard Sander, a UCLA law professor, in a 66-page article soon to be published in the North Carolina Law Review. It is laden with meticulous statistical analyses of six publicly available data sets, including surveys of thousands of law students and lawyers at various stages in their lives and careers.

Sander’s blockbuster article, "The Racial Paradox of the Corporate Law Firm," rejects the conventional wisdom that racism explains why most young black lawyers in large firms do not fare well, and why barely 1 percent of big-firm partners — compared with 8 percent of new hires — are black.

Posted on

Opening Argument – Gay Marriage and the Estate Tax

by Stuart Taylor, Jr.

National Journal

President Bush and congressional Republicans have spent the past week rallying their base by flogging proposals on the issues headlined above that seem extreme and indefensible to many of us independents.

On gay marriage, the "Marriage Protection Amendment" that Bush is pushing would bar not only activist judges but also the people and their elected representatives from ever allowing gay couples to marry. So states where public opinion may someday come to favor same-sex marriage would find their hands tied by the Constitution. This from the party that purports to champion states’ prerogatives in matters of local concern.

On the estate tax, Republicans (and some conservative Democrats) want Congress to abolish all taxes on inherited wealth, to the point of encouraging people who never work to live high on vast, untaxed bequests. This from the party that purports to champion work incentives.

The whole gay-marriage/estate-tax show is mainly symbolic, of course. The Marriage Protection Amendment has no chance of adoption. And the campaign for complete abolition of the estate tax has little chance. But if there is poetic justice in this world, the Republicans’ revealing choice of symbols will backfire by spurring independent swing voters to sweep them from power.

Gay marriage. Many religious conservatives see homosexual acts as sins. And many other people fear that gay marriage would somehow harm an institution that has been a cornerstone of civilization for thousands of years.

I disagree. In particular, the notion that gay marriage would tempt straight and monogamous people to become gay or promiscuous seems far-fetched. So does the idea that gay marriage — which would move not a single child from a traditional household to a gay one — would be bad for children.

Posted on

Opening Argument – Dumb and Dumber

by Stuart Taylor, Jr.

National Journal

Comes now Attorney General Alberto Gonzales, a man not known for legal acuity, with a threat to prosecute The New York Times and other news media for publishing leaks of classified information.

Gonzales, who launched a major investigation late last year into such leaks, claimed in a May 21 ABC News interview that Congress has made a "policy judgment" that in some circumstances journalists should be prosecuted for publishing classified information.

This assertion is misleading at best. The 89-year-old espionage law to which Gonzales was mainly referring was not intended to prosecute anybody for publishing anything and has never been so used. This is an administration that has not hesitated to leak classified information that makes it look good — but calls it criminal for others to publish leaks that make it look bad.

Its most bitter complaints have been aimed at the Pulitzer-Prize-winning disclosure by The New York Times on December 16 of President Bush’s previously secret, warrantless eavesdropping program. Some serious scholars see that program as violating criminal provisions of the Foreign Intelligence Surveillance Act. I don’t, because the murkiness of the legal issues may absolve Bush of criminal intent.

But exposing arguably illegal presidential activities is what the First Amendment freedoms of speech and press are all about. Bush is a shameless demagogue for denouncing as a "shameful act" the exposure of his own circumvention (if not violation) of FISA.

Someone should tell Gonzales and Bush that the relevant congressional "policy judgment" here — one shared by the Constitution’s Framers — is that the president is not a law unto himself.

Posted on

Opening Argument – In Duke Case, a Rogues’ Gallery

by Stuart Taylor, Jr.

National Journal

My rogues’ gallery does not (in all probability) include any Duke University lacrosse player. That’s because the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie. (Some evidence was in my April 29 column; some is below.)

The gallery does include more than 90 members of the Duke faculty who have prejudged the case, with some exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties.

The gallery also includes former Princeton University President William Bowen and civil-rights lawyer Julius Chambers. They went out of their way to slime the lacrosse players in a report on the Duke administration’s handling of the rape scandal — a report that is a parody of race-obsessed political correctness.

Many members of the national media have published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser’s huge credibility problems.

Then there is Mike Nifong, the Durham, N.C., district attorney who is prosecuting the case. In addition to the misconduct detailed in my April 29 column, he has shielded his evidence (if any) from public scrutiny while seeking to keep the rape charges hanging over the defendants by delaying any trial until next spring.

Nifong and a certain Durham police officer should themselves be under criminal investigation, in my view, for what looks like possible intimidation of a disinterested defense witness, a cabbie who had been transporting one defendant at the time of the alleged rape.

Am I prejudging the case myself? Yes, in that I have not yet seen all of the evidence. And yes, in that there could be an innocent explanation for the recent arrest of the cabbie by rape-case investigators under a two-and-half-year-old, apparently frivolous shoplifting warrant.

Posted on

Opening Argument – More Racial Gerrymanders

by Stuart Taylor, Jr.

National Journal

When conservative Republicans such as House Speaker Dennis Hastert and Senate Majority Leader Bill Frist jointly sponsor Voting Rights Act amendments with such liberal Democrats as Rep. John Conyers and Sen. Edward Kennedy, be suspicious.

They are steamrollering through Congress bipartisan legislation to renew for the next 25 years a much-misunderstood, largely anachronistic provision (Section 5) of the Voting Rights Act, including amendments that are driven by racial-identity politics and that would aggravate ideological polarization.

The amendments would turn back the clock on racial progress by requiring even more racial gerrymandering of election districts than under current law. And the extension of Section 5, as currently drafted, would perpetuate an extraordinarily punitive oversight regime that gives to federal political appointees and not-exactly-apolitical bureaucrats at the Justice Department unreviewable power to dictate state and local election rules in nine (mostly Southern) states and some other jurisdictions.

Why would broad bipartisan majorities of House and Senate incumbents want to do that? To help themselves win re-election, for starters. More specifically, Democrats are pandering to the demands of black and Hispanic politicians for safe seats and to the ideological obsessions of the civil-rights lobby, which still sees America as so steeped in racism that whites just won’t vote for minority candidates.

Never mind that Douglas Wilder, an African-American, was elected governor of Virginia in 1989; Bill Richardson, a Hispanic, was elected governor of New Mexico in 2002; Colin Powell might well have been elected president of the United States had he run in 1996; nine of the 34 Georgia officials elected statewide are black; and so on, and so on.

Posted on

Opening Argument – An Outrageous Rush to Judgment

by Stuart Taylor, Jr.

National Journal

The trashing of Duke’s lacrosse team by many in the media may be shifting gears as the Durham, N.C., district attorney’s case against two players indicted for gang rape falls apart and evidence of gross prosecutorial misconduct mounts. I can’t rule out the possibility that there may be some horrible truth in the shifting claims by an African-American "exotic dancer" that the two indicted defendants and another team member gang-raped her in a bathroom. But accumulating evidence strongly suggests that the charge may well be a lie.

The innocence of at least one defendant seems clearly established by rock-solid evidence that he could not possibly have been raping anyone during the half hour after the accuser and another woman had done their four-minute dance at a team party at midnight on March 13. The case against the other defendant also seems weak.

And the evidence that perhaps no Duke lacrosse player committed rape should make a lot of people ashamed of themselves: District Attorney Mike Nifong, the Durham police, many in the media, politically correct Duke professors, spineless Duke administrators, and others.

(Disclosure: A parent of one team member is a friend of mine, and I might not be writing about the case if my analysis of the evidence supported the rape charge.)

Instead of backing off, many in the rush-to-judgment crowd have simply hedged their presumption of guilt and shifted to smearing the lacrosse players — including sons of three retired New York City firefighters, and others from modest backgrounds — as a bunch of privileged, thuggish, racist, and (horrors) white jocks, suggestive of Southern slaveholders.

As to the rape charge, consider some evidence.

Posted on

Opening Argument – Emergency Powers Should Be Temporary

by Stuart Taylor, Jr.

National Journal

The battle over President Bush’s warrantless eavesdropping program has faded as a political issue. But it serves to illustrate a legal principle that should be — but has not been — a point of consensus in the broader debate about presidential war powers.

The principle is that while the president should have power during an extraordinary emergency to temporarily disregard outdated laws that may impede his ability to protect American lives, that power should lapse once he has had time to seek appropriate congressional changes in the laws.

I call this the emergency-powers principle. Its logic has been overlooked by many Bush critics as well as supporters in assuming their respective positions: that the eavesdropping program either was illegal from the outset (as critics claim), or has always been legal and will always be immune to congressional regulation (as defenders claim).

The better view is that Bush was right to start the eavesdropping program (assuming that the still-secret details show the need for it) during the post-9/11 emergency — but was wrong to keep its existence secret and to resist congressional regulation.

Although various laws give the president extraordinary powers during emergencies, no general emergency-powers principle is spelled out in the Constitution or in any judicial decision that I can find. But the principle is implicit in the Framers’ division of powers between Congress and the president.

It is also compelled by common sense. In the days and weeks after the 9/11 attacks, the administration had reason to fear that more attacks might be imminent. It also had cause for concern that the Foreign Intelligence Surveillance Act — badly outdated by new communications technologies and by the vastly enhanced terrorist threat — might make it unduly difficult to find the plotters.

Posted on

Opening Argument – Missing From the Immigration Debate

by Stuart Taylor, Jr.

National Journal

Largely overlooked in the immigration debate roiling Congress and the nation are two themes that should be front and center. The first is that all efforts to control illegal immigration will be futile unless Congress requires workers to have forgery-proof, theft-proof identity cards — ideally embedded with biometric data matching the bearer’s thumbprint or iris scan — and imposes heavy penalties on employers who hire people without such cards. The second is that nobody seems to have any idea how to interest the millions of chronically unemployed Americans — especially inner-city males — in the low-paying jobs that go to illegal immigrants because Americans supposedly don’t want them.

So here’s a modest three-part plan. It would cut down the flow of illegals as efficiently and humanely as possible; use a federally funded minimum-wage increase to bring at least some unemployed Americans into the job market; and, while we’re at it, narrow the vast income gap between skilled and unskilled workers.

First, Congress should create a system of forgery-proof, theft-proof identity cards and a more robust enforcement process to put teeth in the laws against employing illegal immigrants. The influx of illegals will plunge if these workers cannot find jobs.

Experience shows that as long as there are jobs for illegal immigrants, neither a wall along the Mexican border — unless festooned with machine-gun towers and troops under orders to shoot climbers on sight — nor such punitive measures as making illegal immigration a felony will greatly slow the influx.

The 1986 immigration reform law sought to slow the flow of illegals by slapping sanctions on employers who hire them (while giving amnesty to the millions already here). But a coalition of employers eager to hire low-paid, hardworking illegals and libertarians obsessed with the specter of Big Brother killed proposals to create forgery-proof, theft-proof identity cards.