Tag Archives: Polarization

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Making Juries Look Like America

by Stuart Taylor, Jr.

‘State constitutional policies … require a trial court to consider racial demographics in exercising its authority … to change the venue of a criminal trial or to impanel a foreign jury."

So held the Appellate Division of the New Jersey Superior Court on June 12 in State v. Ambrose Harris, in which a black man is charged with raping and murdering a white woman. The court said that Harris-who had won a motion to import a jury because of inflammatory publicity in the racially diverse city where the crimes had occurred-had a right not to have the jury imported from a 98 percent-white suburban county.

Was the New Jersey court just crafting a rule for those rare cases in which venue is changed or jurors are imported? After all, a black defendant might not feel much better about facing an all-white jury if the reason was that his alleged crimes had been committed in a 98 percent-white county. So there is reason to wonder whether the New Jersey ruling may be a first step down the road toward some kind of right to a jury of one’s racial peers, enforced by racial quotas in jury selection.

Such quotas have, in fact, been urged by a few scholars, including Professor Sheri Johnson of Cornell Law School, who has written that black defendants should have a right to juries that include at least three black members.

Whatever the rules should be, it’s becoming increasingly clear that the jury system will be in grave peril if we cannot reverse our society’s drift toward ever deeper racial polarization and tribalism. The staggering racial divisions over the O.J. Simpson case-with 78 percent of whites in one recent poll believing him to be guilty of double murder, and 71 percent of blacks believing him to be innocent-do not bode well.

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An Old-Fashioned Conservative

by Stuart Taylor, Jr.

The salutary tradition of showing respect for the dead has temporarily overshadowed the less-than-flattering image that Warren Burger had among Washington lawyers and journalists, especially those steeped in the liberal-leaning culture of the law schools and the media during his 17 years as chief justice of the United States.

We were told by our professors and our newspapers that Burger was Richard Nixon’s judicial hatchet man, bent on rolling back the noble works of the Warren Court. We read in The Brethren that his brethren (and their clerks) mocked his pompous self-importance, resented his manipulative assignments of opinions, and disdained his middling intellect and pedestrian craftsmanship.

We groaned at his stuffily self-righteous speeches about the indignities visited on the legal profession by lawyer advertising, by cameras in courts, and by death row defense lawyers-whom he faulted for doing what any good lawyer in their position would do. We made fun of his more awkward judicial opinions. We tittered when he knocked the television camera out of the hand of a newsman who had pursued him into an elevator.

Across the ideological spectrum, conservative true believers came to think of Burger as an undependable compromiser more attuned to conventional wisdom and public opinion than to conservative principle.

There’s much truth in all this, and in the image of Burger as the chief justice from central casting, with a majestic white mane camouflaging a mediocre mind. But there were also some traits to admire in this sturdy, hard-working, fundamentally decent man.

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Hard Cases and Party-Line Justice

by Stuart Taylor, Jr.

In reversing the convictions of three once-powerful Reagan administration officials-Lyn Nofziger, Oliver North, and, last month, John Poindexter-the U.S. Court of Appeals for the D.C. Circuit has consistently cleaved along straight party lines.

Each of the eight Reagan-appointed and Bush-appointed judges (including now-Justice Clarence Thomas) has voted to reverse each of the convictions that he or she has reviewed.

And each of the four Carter-appointed judges has voted to affirm (at least in part) each of the convictions he or she has reviewed.

In all, Reagan/Bush judges have cast a combined total of 12 votes for reversing these three convictions, and Carter-appointed judges have registered a combined total of seven dissents.

Nofziger, North, and Poindexter are the only high-ranking Reaganites who have appealed convictions to the D.C. Circuit. Each was prosecuted by an independent counsel.

(In a fourth case, which did not lead to criminal charges, two Reagan appointees in 1988 struck down the law providing for such independent counsel, over a Carter appointee’s dissent. The Supreme Court reversed that decision by 7-1.)

Why have the Reagan/Bush judges-far more likely than the Carter appointees to side with prosecutors in the ordinary run of criminal cases-been such vigilant guardians of the procedural rights of the accused in these cases?

Why have they so unanimously found inadmissible evidence of unchallenged reliability that proved North and Poindexter had committed serious federal crimes?

Conversely, why have the Carter judges- usually so solicitous of the rights of criminal defendants-voted to spurn the appeals of these defendants?

Why have they rejected the arguments of, among others, the American Civil Liberties Union (in amicus briefs) that the North, Poindexter, and Nofziger prosecutions offended important constitutional principles?

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The Capitals Peculiar Rituals

by Stuart Taylor, Jr.

Richard Allen. Robert Bauman. James Beggs. Peter Bourne. Tony Coelho. Tai Collins. Daniel Crane. Deborah Gore Dean. Raymond Donovan. Fanne Foxe. Newt Gingrich. Stephen Gobie. Thereza Imanishi-Kari. Rita Jenrette. Tim Kraft. Bert Lance. Rita Lavelle. Donald Lukens. Robert McFarlane.

Edwin Meese III. Ozzie Myers. Lyn Nofziger. Oliver North. Theodore Olson. Tom Pappas. Paula Parkinson. Elizabeth Ray. Nancy Reagan. Donna Rice. Gus Savage. Denise Sinner. Gerry Studds. Jim Wright. Joseph Wright Jr. John Zaccaro Jr.

Pop quiz: Try to recall how these people became embroiled in front-page Washington scandal (or what passes for scandal); which of them were accused of crimes; which were convicted; and what became of them. (For answers, see Page 29.)

Then read Scandal: The Crisis of Mistrust in American Politics. It’s a much-needed antidote to the obsession with exposing wrongdoing that has distorted our political culture since Watergate.

Scandal, a new book by former Wall Street Journal columnist Suzanne Garment, is one of the most sensible and readable analyses of our capital’s peculiar rituals ‘in years. Garment argues compellingly that political Washington and its scandal-happy press corps have spent far too much energy chasing tales of corruption, sin, impropriety, and the appearance thereof, and far too little on our deeper problems, which "spring less from individual wrongdoing than from more widespread failures of political will."

It’s a cautionary tale for the self-appointed, often self-righteous guardians of ethical purity whom Garment calls "scandal entrepreneurs." The carefully documented, entertainingly rendered, sometimes deliciously ironic narrative lends weight to Garment’s sobering conclusion: