Welcome to my archives. This is a long list of most of the commentaries and longer articles I have written since 1989; the hundreds of articles I wrote for the New York Times from 1980-1988 can be found via the SELECTED MEDIA OUTLETS box. They are sorted by date, with the most recent posts first. If you want to find something specific, I would encourage you to use the search feature in the sidebar. It is powered by Google. It is fast and accurate.
Those Checks Didn’t Really Bounce
by Stuart Taylor, Jr.
We live in a country where the President has proposed a budget with a $400 billion deficit.
A country with a corrupt campaign-financing system, rotting cities, rampant violence, third-rate schools, a dying industrial base, lagging productivity, crumbling health care, grotesquely overpaid business executives and lawyers, bankrupt savings-and-loans, soul-crushing poverty, disappearing forests, profligate overconsumption of oil, richly padded employees’ expense accounts, and undisciplined voters who yelp whenever they are taxed to pay for the benefits they so insistently demand. A country that stares at the sky through a thinning ozone layer.
So what is everybody scandalized by these days? What is it that has whipped the radio talk shows into a frenzy, the public into an apopolexy, and the press into a feeding frenzy?
And what is Attorney General William Barr having investigated by a special counsel-who is the former GOP judge Barr clerked for, no less?
Why, the great congressional "check-kiting scandal," of course.
This is a scandal in which not one dime of public money was stolen or misappropriated. Nor were more than a handful of "rubber" checks on the House Bank "bounced" or "kited."
The rampant misuse of these words by virtually every mass publication in the country involves more than just loose semantics and flaccid oversimplications reverberating through the echo chamber of pack journalism.
It reflects a reckless lust to pander to public ignorance by hyping humdrum transactions that would sound far less scandalous if they were described as the interest-free overdraft privileges that they in fact were.
A couple of definitions, from Webster’s Third New International Dictionary: "Bounce. . . of a check: to be returned by a bank as no good (as because of lack of funds).”
Thomas’ Tortuous History Lessons
by Stuart Taylor, Jr.
Justice Clarence Thomas’s eye-catching February 25 dissent in a prison-beating case left one thing a bit unclear. Suppose that instead of just loosening a few of the handcuffed prisoner’s teeth and mussing up his face while their supervisor was admonishing them "not to have too much fun," the two Louisiana penitentiary guards had gotten a little bit rough.
Suppose that they had broken both his legs, or stretched him out on a medieval rack, or torn out his fingernails, or cut off his hand, Saudi-style, or locked him naked in a freezing room.
Would that be "cruel and unusual punishment"?
No way, Thomas and his ideological mentor Antonin Scalia seem at first to suggest in Hudson v. McMillian: The Eighth Amendment was conceived two centuries ago only as a protection against punishments meted out by judges and legislatures-not against anything done to a convict once arrived at prison.
As history, that may be plausible. As constitutional law for 1992, it’s hard to stomach.
Which is why Thomas and Scalia don’t really press the point. Instead, they premise most of thei dissent on narrower grounds, indicating that they might uphold Keith Hudson’s $800 damage aware if he had suffered "serious injury."
In doing so, they expose the flaw at the heart of the "originalist" jurisprudence of which Scalia and Robert Bork are the guru’s, Thomas is an awkward apprentice, Chief Justice William Rehnquist a dabbler, and Ed Meese was once mass-marketer:
Taken to its logical conclusions, originalism leads to results intolerable even to its most ardent expositors.
These results would include constitutional indifference not only to the torture of convicts, but also to most forms of racial discrimination, ranging from state-enforced segregation of black children (the norm when the 14th Amendment was adopted) to quotas that discriminate against white males.
Lies, Damn Lies, and Sex Lies
by Stuart Taylor, Jr.
Bill Clinton, Clarence Thomas, and Charles Robb have more in common than ill-starred acquaintanceships with women.
Their problems raise a question gnawing at our body politic: Is it ever justifiable, or at least forgivable, for one who holds or seeks high office to lie to the public to protect himself?
My gut tells me no. In a political culture increasingly polluted by mendacity of all kinds, it’s tempting to call for a zero-tolerance attitude toward political lying.
But recent experience suggests an exception: We should not judge too harshly those who lie (or whom we suspect of lying) to deflect the ever more shameless intrusions by news media into deeply private matters.
The issues are framed by the Clinton and Thomas cases. We should, of course, be reluctant to judge either of them guilty of deception without very strong proof. But suppose we had conclusive evidence that they lied. Would that alone demonstrate unfitness for high office?
The answer, I submit, should be yes in Thomas’ case and no in Clinton’s.
If I am right, then the judgment of the nation on Thomas and the conventional wisdom on Clinton are both wrong.
Thomas was confirmed even though. I am convinced, a majority of both the Senate and the public did not really believe he had told the truth, the whole truth, and nothing but the truth in his blanket denials of Anita Hill’s charges.
While many who sided with him may have believed every word of his testimony, many others-enough, probably, to account for his margin of victory-did not. They (and I) found it difficult to believe that Hill had made up her story out of whole cloth. And therefore they found it difficult to credit Thomas’ assertions that he had never once asked Hill for a date, or mentioned pornography to her, or said any of the things she alleged.
A Quiet Crisis in the Courts
by Stuart Taylor, Jr.
There is a cancer in the federal criminal-justice system. It gets little attention from Congress, the executive branch, the media, or the public. And it is spreading fast.
Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.
The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.
The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.
He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."
The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.
Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.
With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.
Thirty Lasches If You Win This Contest
by Stuart Taylor, Jr.
The craft of lawyering often calls for peering into the future-foretelling how new laws will be construed, how constitutional doctrine will evolve, what practice areas will be hot or cold. And a new year beckons, pristine as new fallen snow.
So step right up and take the 1992 legal prognostication quiz. Test your skills. Compete for coveted awards. (First prize: a 30-minute videotape of Moira Lasch cross-examining "sex machine" William Kennedy Smith. Second prize: a 60-minute tape.) Bill the time to continuing legal education.
(1) American lawyers who open offices in Moscow and other cities in the former Soviet Union will end the year looking: (a) smart; (b) dumb; (c) for something to eat.
(2) The most insufferable lawyer in the United States will be: (a) Alan Dershowitz; (b) John Doggett; (c) Alan Simpson; (d) Edward Kennedy;(e) Richard Nixon; (f) someone new.
(3) Robert Strauss, the Washington superlawyer who became ambassador to the Soviet Union in 1991 only to see it disappear, will close out 1992 as: (a) ambassador to the Commonwealth of Independent States; (b) ambassador to Russia; (c) ambassador to Uzbekistan; (d) ambassador to Japan; (e) a Washington superlawyer.
(4) The most sensational televised trial of 1992 will involve: (a) a man and a woman; (b) Long Dong Silver; (c) a murder; (d) a financial fraud;(e) police brutality; (f) an incompetent prosecutor; (g) Michael and Kathy, last seen at Au Bar.
(5) Justice Clarence Thomas will: (a) finally (and for the first time) decide what he thinks about Roe v. Wade; (b) finally read it; (c) vote to uphold damage awards in federal sexual-harassment suits; (d) in his first written opinion, refer to his grandfather; (e) pose for Cosmopolitan.
(6) Justice David Souter will: (a) vote to upholdRoe v. Wade; (b) vote to reaffirm and extend theban on state-sponsored school prayer; (c) getmarried; (d) pose for People magazine.
When to Take the Mask Away
by Stuart Taylor, Jr.
On CNN, she was a round blue blob, haloed by dark hair, hovering over a strand of pearls, expressionlessly emitting rape accusations, memory lapses, whimpers, and sobs.
On Court TV, she was a flickering checkerboard mosaic, a high-tech mask.
She had a human face and a name only for the six jurors and the handful of spectators squeezed into the tiny Palm Beach courtroom. The rest of us could catch fragments of her identity only when the TV people mistimed the annoying bleeps they used to censor out each utterance of the name of history’s most famous rape victim.
Or is she just a famous perjurer?
We couldn’t see whether her gaze was steady or shifty, whether those sobs looked as genuine as they sounded, whether the woman herself was more believable (as some who saw her say), or less, than the disembodied voice behind the blob.
Was all this really necessary, while she was face to face with her alleged rapist in the courtroom, trying to send him to prison and destroy his reputation forever? Is it still necessary, after the jury has found William Kennedy Smith not guilty in just 77 minutes’?
We all knew his name. We all saw his face. And while he was legally presumed innocent unless and until proven guilty, no one was showing much solicitude for his privacy. Wherever he goes, people will know him as the alleged Palm Beach rapist.
So why should she be shielded from public view while testifying at a public trial? Why, indeed, so many months after everyone in Palm Beach knew who she was, and after two national news organizations first used her name?
Protecting a rape complainant’s anonymity (if she wants it protected) is, in fact, very good journalistic policy, up to a point. But in my view (not my employer’s), that point was reached in this case the moment she appeared on the witness stand-or, if not then, at least by the time that the jury had found Smith innocent.
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?
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:
The Civil-Rights Bill: Punt to the Courts
by Stuart Taylor, Jr.
The conventional wisdom about the civil-rights bill compromise is that President Bush, afraid he was looking more and more like KKK-alumnus David Duke, simply caved in.
Liberals exult that the president abandoned a morally and politically indefensible position by embracing belatedly the same salutary reforms that they had been seeking all along.
Meanwhile, conservatives like columnist Patrick Buchanan bash the president for capitulating to a "quota bill."
Wrong, wrong, wrong.
These figments of Democratic spin-controllers and right-wing hardliners, uncritically adopted by much of the national press as the bill sped toward final passage last week, are egregious oversimplifications.
Not as egregious, to be sure, as the president’s own transparently absurd position that what he had been denouncing for 20 months as a "quota bill" had been transubstantiated, by a few strokes of the pen, overnight, into a good and upright "source of pride for all Americans … a non-quota civil-rights bill."
Oversimplified rhetoric begets oversimplified rebuttal. President Bush and his aides may deserve a dose of their own medicine.
Irreconcilable Differences
But the truth is that this was a classic, convoluted legislative deal, with both sides giving significant ground, inch by inch, while papering over irreconcilable differences and leaving the hardest policy decisions unresolved:
• The White House won more than it lost on the "quota" front, by holding out for crucial last-minute changes in language regarding statistically based "disparate impact" lawsuits. The compromise bill is far less likely than the original Democratic proposals to increase pressure on employers to use racial hiring preferences and significantly less likely to do so than the revisions advanced last summer by Sen. John Danforth (R-Mo.).
What’s Really Wrong With The Way We Choose Supreme Court Justices
by Stuart Taylor, Jr
The fundamental problem with the Supreme Court appointment process is not its tendency to he hijacked by eleventh-hour El-legations of scandalous conduct.
Nor is it the unseemly, kangarocourt atmosphere that sometimes prevails at Senate confirmation hearings.
Nor is it that somebody leaked Professor Anita Hill’s allegations of sexual harassment against Judge (now Justice) Clarence Thomas to the press, along with the Judiciary Committee’s I initial, secret decision to dismiss her immensely troubling account without hearing her give it.
Nor is it that the resulting firestorm forced the Senate then to have her testify at a public hearing, which predictably degenerated into a Roman circus.
Nor is it that liberal interest groups, senators, and their staff scour the nation for dirt about conservative nominees. Nor that the White House and Republican senators conducted a cynical smear campaign against Hill. Nor that either Thomas or Hill (I know not which) is the victim of a monstrous lie.
Nor is it that the odds are at least 50-50 that we now have a rampant perjurer on the Supreme Court.
Those phenomena preoccupy the public mind after the Senate’s partisan food-fight over the sexual harassment issue.
But the fundamental problem is the Senate’s unwillingness to insist on the best and, in this era of divided government, on a frank compromise as to the political and judicial philosophies of Supreme Court nominees.
The problem is that most senators will give the president’s nominees the benefit of the doubt-not that some won’t-when the issue is not whether the nominee should go to jail, but whether he or she should go to the nation’s highest tribunal-for life. This has enabled the president to get away with making highly ideological, partisan nominations of conservative mediocrities.
The major problem, in short, is not the confirmation process but the nom¨inating process.