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.
In Defense of Dirt Digging
by Stuart Taylor, Jr.
”They have the whole country blanketed, trying to dig up dirt…These are the smartest attorneys from the best law schools in the land. All paid for at public-interest expense. It’s what’s ruining our country in large measure. Because some of these groups…are vicious."
–Sen. Orrin Hatch (R-Utah)
What’s so bad about trying to dig up dirt? In their furious attacks on the excesses of a few of Clarence Thomas’ opponents. Thomas and his supporters cynically sought to delegitimize the whole enterprise of investigating Supreme Court nominees and their records.
In the process, they uttered a lot of pious, hypocritical, demagogic nonsense.
Efforts by political opponents and the press to ”dig up dirt" about people in public life are as American as apple pie and as old as the republic. And such negative research is a tool used by conservatives no less than by liberals.
In the words of Bruce Murphy, author of a book on the failure of Justice Abe Fortas’ nomination to be chief justice in 1968 and his subsequent resignation under a cloud of financial improprieties: ‘ ‘The handbook for the dirt-digging operation was written by the Republicans in 1968, and the author was Senator Strom Thurmond of South Carolina."
Dirt digging is not only proper but good for the country-if kept within proper bounds.
By "proper bounds," I mean using legitimate investigative techniques-combing through speech texts, phoning former employees, and the like-to seek out and publicize any information that may be relevant to a nominee’s fitness for the job he or she seeks.
As for relevance, even Thomas had to concede that Anita Hill’s allegations of sexual harassment would (if true) demonstrate his unfitness for the Court.
The Road Beyond Racial Preferences
by Stuart Taylor, Jr.
Why should a rich black lawyer’s child get into an elite college ahead of a struggling white factory worker’s child who has pushed himself harder and achieved better grades and test scores?
Why should either of them get the nod, for a university slot or for an entry-level job, over a poor child from the black inner city or white Appalachia who has slightly lower scores but has shown exceptional drive to overcome adversity?
Such questions-and the broader one of whether affirmative action for racial groups should give way to class-based preferences for individuals who have overcome disadvantage-are coming starkly into focus with Judge Clarence Thomas’ probable ascension to the Supreme Court.
The nominee’s broadside attacks on racial affirmative action in recent years suggest he may well cement a majority for eviscerating most or all race-based affirmative-action programs.
But Thomas also told the Senate Judiciary Committee that he favors preferences for those who have overcome barriers of social, economic, and educational deprivation.
He defended the affirmative-action plan that helped him get into Yale Law School in 1971 by saying (with questionable accuracy) that it was aimed at applicants who had done well despite "socioeconomic disadvantages" and that "the kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or a Hispanic kid from the inner cities or from the barrios."
In his own hiring decisions, Thomas added, "We look[ed] for people who have had some of the disadvantages….I think you can measure a person by how far that person has come and by what that person has overcome to get there….And I think we all know that all disadvantaged people aren’t black, and all black people aren’t disadvantaged."
Why Confirm an Artful Dodger?
by Stuart Taylor, Jr.
It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.
He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.
He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.
Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."
He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.
Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.
In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.
The Law Made Them Do It
by Stuart Taylor, Jr
High school senior Matthew Theurer punched out at & 8:21 A.M. on Tuesday, April 5, 1988, after spending thenight cleaning deep-fat fryers at a McDonald’s in Portland, Ore- gon. He had volunteered for the A all-nighter between two school days. But now he was tired, Theurer told the manager, who granted him relief from his shift later that day.
Then the 18-year-old got into the red 1982 Nissan Sentra that his McDon¨ald’s earnings had paid for and headed for his home town of Estacada, 19 miles away.
A few miles down Highway 224, Frederic Faverty was en route to a job trimming the shoes on a horse when he no¨ticed the red car coming toward him, taking a curve wide. It drifted over the double line-and came straight at him. Faverty swung right, too late.
The head-on crash demolished Theurer’s light compact and flipped Faverty’s tan 1979 Chevrolet Suburban truck onto its side. The 40-year-old Faverty was badly hurt, with extensive leg, hip, and ankle injuries.
Matt Theurer died on impact. The in¨vestigating officer reported that Theurer had apparently fallen asleep at the wheel.
Almost three years later, on March 29 of this year, a Multnomah County circuit court jury concluded that the accident was the fault of McDonald’s. Finding after a five-day trial that the company had negligently worked Theurer such long hours that he was a hazard on the road, the jury awarded Faverty $400,000 in damages, by a 9-to-3 vote.
Less than a week later Theurer’s mother filed a $10 million wrongful death suit against McDonald’s, seeking punitive damages for wanton disregard of the safety of her son and society at large. Her case has not yet gone to trial.
Quelling the Fires of Hate Speech
by Stuart Taylor, Jr.
If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?
That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."
The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.
The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.
One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."
The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.
Power to the People. What People?
by Stuart Taylor, Jr.
The central vice of liberal judicial activism, conservative theorists have long contended, has been unwarranted interference with the rights of the people to make the laws through their elected representatives.
Now that Reagan and Bush appointees are firmly in command of the Supreme Court, will they practice the deference to elected representatives that their sponsors preach?
Perhaps. But the record so far suggests no great devotion to the policy-making primacy of the nation’s pre-eminent representative assembly, the U.S. Congress-which also happens to be the object of withering conservative scorn. And some decisions have the feel of a judicial-executive pincer movement cutting Congress out of the process of revising statutory policy.
A few examples:
• The much-discussed abortion-counseling decision this May, Rust v. Sullivan, adopts an approach to statutory interpretation that amounts to a significant transfer of law-making initiative from Congress to the executive.
• Other rulings have evinced an unrestrained readiness to revise the settled meaning of statutes by overruling precedents that Congress has not chosen to disturb.
• Some of the conservative justices seem ready to impose major limitations on the power of Congress, as well as the states, to use racial preferences to remedy past societal discrimination. If they succeed, it would be an arrogation of power as activist in some ways as the 1973 decision legalizing abortion.
The Reagan and Bush appointees are far from being a monolithic bloc, and it is too early to say whether they will be as prone as liberals have been to thwart majoritarian democracy. But it maybe time to start keeping score.
Locked Up in Jail, Locked Out of Court
by Stuart Taylor, Jr.
"Since 1982 inmates increasingly have been placed two to a cell because the prison lacked space for its increasing population….Most … spend approximately 14 hours a day in their cells…. The court found that ‘[b]ecause these shared cells are so tiny, only one inmate at a time can stand in the cell; the other must lie on the bed.’… [P]hysical exercise is impossible…. Essentially, an inmate can only lie on his bunk or sit at the desk or on the bunk…. The lamp provides adequate light for the inmate on the top bunk to read, but virtually no light to the inmate on the bottom….
"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’
"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.
"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…
"Medical and psychiatric treatment are also shockingly deficient."
It’s Time to Mend the Civil-Rights Rift
by Stuart Taylor, Jr.
With President Bush excoriating House Democrats for passing a "quota bill"-and being savaged in return for fanning racial divisions-the rancorous debate over how much to expand job-discrimination remedies threatens to do race relations more harm than any law could cure.
But even as the opposing partisans have descended deeper into oversimplification and name calling, the real gap between their proposals has narrowed.
For the good of the country, it is imperative to bridge the gap and to get this issue behind us. A replay of last year’s Bush veto of a Democratic civil-rights bill would only suffuse the 1992 campaign with the poison of racial politics.
It should now be possible to come up with a statesmanlike compromise between the mainly Democratic bill that the House passed last week. 273-158. and the Bush administration’s competing proposal.
Statesmanship has been in short supply among the contending partisans-President Bush and the Democrats alike-as they have grappled for rhetorical advantage and the political high ground.
But Sen. John Danforth (R-Mo.) threw a glimmer of hope into this disturbing picture last week, by rounding up eight other moderate Republicans to sponsor a three-bill package that draws from both the president’s and the Democrats bills and seeks to bridge their differences.
Danforth says he acted out of a conviction that "it’s important to extricate the racial question from partisan politics." He would judiciously expand remedies for victims of job discrimination while seeking to avoid undue pressure on employers to adopt surreptitious quotas.
Danforth’s approach would improve both on current law, which the Supreme Court in 1989 tilted against job-discrimination plaintiffs, and on the House-passed bill, which would go too far in the opposite direction.
Electing By Race
by Stuart Taylor, Jr
IT’S A CURIOUS COALITION, WITH A seductive but disquieting agenda.
In Georgia black leaders, the American Civil Liberties Union, and the Bush Justice Department are challenging as racially discriminatory a state law that requires legislative and judicial candidates to win by a majority vote.
Across America civil rights lawyers and minority politicians, often with Republican support, are preparing a potent legal and political.offensive to create as many election districts as possible with heavy black or Hispanic majorities as the decennial redis-tricting process gets under way. Under current Voting Rights Act doctrine (as well as reigning liberal political orthodoxy), a lawyer advising nervous Democrats says, "racial gerrymandering is almost required" to create odd-shaped black or Hispanic districts. So race is the first criterion, and a quagmire of litigation looms.
And, in two pending Supreme Court cases, minority plaintiffs are pushing, with qualified Justice Department support, for full application of the Voting Rights Act to judicial elections. The plaintiffs want to force Louisiana to draw a black majority election district for its supreme court and to force states that elect trial judges to abandon jurisdiction-wide voting in favor of single-judge districts, drawn wherever possible along racial lines. These developments illustrate an alliance of convenience that has developed between civil rights lawyers – who for 25 years have battled with astonishing success for full voting rights for blacks and other minorities – and Republicans, whose enthusiasm for minority office-holding surfaced more recently, in tandem with their awareness of how it can help their side.
High Court in a Police State of Mind
by Stuart Taylor, Jr.
For decades we have looked to a web of Supreme Court decisions as the ultimate safety net to protect the innocent from wrongful conviction or detention and to shield us all from governmental abuse in the criminal process.
This safety net, fraying for years, has begun to unravel with alarming speed since the retirement last summer of Justice William Brennan Jr., the great champion of the individual in the grip of the state. Brennan’s replacement, Justice David Souter, has solidified a majority that seems in a hurry to accommodate police and prosecutors by devaluing rights.
The coalitions change, with only Chief Justice William Rehnquist voting against the criminal defendant in virtually every case. But the erosion of important rights proceeds, restrained neither by adherence to precedent nor by deference to the law-making role of the Congress.
A recent example-especially telling because the Court accepted the flimsiest of justifications for prolonging wrongful detention of innocent suspects-is the 5-4 decision in Riverside v. McLaughlin on May 13. The Court held that police could routinely jail suspects for up to 48 hours before bringing them in front of a judge to determine whether there was probable cause to arrest them.
Justice Antonin Scalia, who usually sides with Rehnquist, aptly characterized the result in his dissent: "Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days-never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made."