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.
Thrift Thuggery-Business as Usual
by Stuart Taylor, Jr.
Whoever…being a public official…directly or indirectly, corruptly…accepts…anything of value personally or for any other person or entity in return for…being influenced in the performance of any official act…shall be fined…or imprisoned for not more than 15 years, or both.
-U.S. Code, Title 18. §201(b)(2)(A) [bribery]
Whoever…being a public official…otherwise than as provided by law for the proper discharge of official ditty, directly or indirectly…accepts…anything of value personally for or because of any official act performed or to be performed…shall be fined under this title or imprisoned for not more than two Years, or both.
–U.S. Code, Title I8. §201tc)(l)(B) [illegal gratuity]
Charles Keating Jr. is that rarest of creatures in the world of political fund-raising-a man who publicly avows what everyone knows to be true.
The Arizona financial executive is now at the center of Senate and FBI investigations involving $I .4 million in political contributions he arranged for five U.S. senators and associated groups. These contributions were made before and after the senators put the arm on federal thrift regulators in 1987 on behalf of Keating’s now-insolvent Lincoln Savings and Loan of Irvine. Calif.
At a press conference last April. Keating said: "One question among the many raised in recent weeks had to do with whether my financial support in any way influenced several political figures to take up my cause. I want to say it in the most forceful way I can: I certainly hope so."
Keating’s contributions to the senators-including four Democrats with whom he. a conservative Republican, had no ideological affinity that might account for his generosity-were clearly things "of value."
Drug War’s Non-Economic Costs
by Stuart Taylor, Jr.
This drug war is getting kind of expensive.
When it comes to health, safety, and environmental regulations, conservatives like President George Bush are acutely attuned to the danger of unforeseen harmful consequences, of costs outweighing benefits.
But little is heard these days about the non-economic costs of mobilizing ever more government regulation for Drug War III, the Bush sequel to the wars declared by Presidents Richard Nixon and Ronald Reagan.
Among these costs are the incipient wreckage of the federal court system, the dismantling of the Sixth Amendment right to counsel, the decline of the presumption of innocence, the demise of the Fourth Amendment, the dilution of property rights, the blighting of entire lives for youthful mistakes, the litmus-testing of public officials, and the entrenchment of the escapist fantasy that such police-state methods can cure our national maladies.
The federal court system is already so overwhelmed by drug cases that it is hard-pressed to discharge its traditional responsibilities of protecting civil rights and civil liberties, resolving complex antitrust disputes, and the like.
Morale in the federal judiciary is low and sinking lower, in part because many judges now spend more than half their time processing routine drug busts. The number of drug cases filed in federal District Courts jumped 270 percent from 1980 to 1989. In each of the last two years, the number rose more than 15 percent. This tidal wave is swamping not only the courts but public defenders, prisons, and probation offices as well.
It will get worse. At the urging of the Reagan and Bush administrations, Congress has increased the number of assistant U.S. attorneys by more than 50 percent in a little over a year, mainly to throw new bodies into the drug war.
Read His Flips: The Abortion Thing, 1992
by Stuart Taylor, Jr.
Miracle of modern science: We have collected every statement President George Bush has ever made on abortion and fed them into a computer. The machine has been able to peer three years into the future and project the questions on abortion and the president’s answers when he debates the Democratic nominee in October 1992:
Q: Mr. President, early in 1980, you said Roe v. Wade, the Supreme Court decision legalizing abortion, "was right." And you supported federal funding for poor women to have abortions in cases of rape and incest.
A few months later, after becoming Ronald Reagan’s running mate, you joined him in calling for a constitutional amendment to ban abortion. And in 1984, you denied having ever supported federal funding for abortions in rape or incest cases.
In the 1988 campaign, you supported a right to abortion in rape and incest cases. In 1989, your administration urged the Supreme Court to overrule Roe v. Wade, and you vetoed federal funding for abortions in rape and incest cases, saying poor women might fake rape or incest.
Ever since then, anti-abortion candidates have been defeated in droves at the polls and you have refused to discuss the subject.
Could you clarify your position and respond to your opponent’s charge that you have flip-flopped in unprincipled pursuit of political advantage?
President Bush: Well, as I’ve said before, my position has always been the same as it is now, which is to say it has been evolving.
Deciphering Congressional Code
by Stuart Taylor, Jr.
No corner of the law, it seems, is too arcane to become a front in the ideological battle between liberals and conservatives over the federal judiciary.
Witness the hot debate developing over the extent to which courts should use legislative history as a guide to interpreting acts of Congress.
A few years ago, this subject could hardly have warmed the heart of a fledgling law professor scrounging for a tenure piece. Now, with the rise of a new conservative jurisprudence, the tectonic plates underpinning the law may be starting to move.
The longstanding consensus that courts should discern congressional intent through liberal use of legislative history-committee reports, floor debate and the like-is breaking down. And the issues now surfacing could be "of enormous consequence, in a vast number of cases," in the words of Justice Antonin Scalia.
He is the philosophical leader of a movement to focus almost exclusively on the meaning of the statutory text in interpreting legislation and to reduce or even abandon judicial reliance upon legislative history.
In several opinions Justice Scalia has assailed what he considers the profligate use by courts in recent decades of staff-written legislative history-which he has called "judicial abdication to a fictitious legislative intent."
His approach is sometimes called "textualism." Warning that "the textualists are on the march," Chief Judge Patricia Wald of the U.S. Court of Appeals for the D.C. Circuit launched a counterthrust last month in a speech criticizing the Scalia-led assault on the judiciary’s "basically sensible approach."
Justice Scalia, Chief Judge Wald, and their leading allies frame their arguments in terms of legal principle, not politics or ideology, and build on rich intellectual traditions replete with quotations of Oliver Wendell Holmes, Learned Hand, and Felix Frankfurter.
Justice Powell’s Predicament
by Stuart Taylor, Jr.
Like most Americans, Lewis Powell Jr. had never given much thought to the death penalty.
Then, in 1972, he joined the Supreme Court. Since then Justice Powell, who retired in June 1987 at the age of 79, has thought about it quite a bit.
He has adhered to his view that nothing in the Constitution bars governments from putting vicious murderers to death. But he has pondered what happens after all the appeals have been litigated and the stays of execution have run out and the prisoner’s head has been shaved.
"I just can’t imagine having the job of pulling the switch on someone in the electric chair," Justice Powell said in an interview last week in his Supreme Court office.
He also has come to believe, contrary to his initial assumption, that "capital punishment has not deterred murders." They have continued at a "shocking" 20,000-a-year pace, he notes, since he helped reinstate the death penalty in 1976.
"It’s perfectly clear that if I were in the legislature now, in view of the extended litigation and the ineffectiveness of the way the system operates, I would vote against the death penalty," Justice Powell concludes. "I would be inclined to vote against it in any event. We are the only Western democracy that still retains the death sentence… We have a system that isn’t working, and I doubt very much whether you could ever by law create a system that would work at the present stage of our civilization."
He adds that he has "moral concerns as well as legal.” Asked to elaborate, he pauses, groping for the right words, and says quietly, "The taking of human life is something that I’d rather leave to whomever one thinks of as God.”
In the Bush League on Drugs
by Stuart Taylor, Jr.
President Bush dramatized the drug scourge in his prime-time address with the story of a six-year-old boy named Dooney, who until recently lived in a crack house. Life was so bad at home with his addicted mother that he begged to sleep at school, and he feared he would "probably have to" end up selling drugs.
"Well, Dooney does not have to sell drugs," the president declared. "No child in America should have to live like this."
No child should. But what does the president offer as an alternative? What deliverance from the nightmare the American dream has become for masses of poor children, plagued by bad housing, bad neighborhoods, bad schools, and, in many cases, bad parents?
A president who was serious about helping children like Dooney would propose a massive effort to rehabilitate inner-city schools and child-welfare programs, to give them all real educational opportunity and to give neglected and abused children the nurturing they don’t get at home.
But such a program would cost tens of billions of dollars. Candidate Bush vowed to be the "education president"; now he wants to cut real federal spending for education. His call to arms on drugs betrays his real priorities: "We can pay for this fight against drugs without raising taxes or adding to the budget deficit"-instead, he wants to take money from programs to help poor people.
What the president offers poor children like Dooney is no real hope for a share in the bounty of American life, but rather the threat of repression if they step out of line.
We’ll start by taking away your driver’s license, he says; then we’ll throw you into boot camps or prison; "and for the drug kingpins, the death penalty."
Second Class Citizens
by Stuart Taylor, Jr
"THE CITY ATTORNEY LOOKED AT ME," SUSAN REEVES recalls, "and he said, ‘Little lady’-even though I’m five feet eight inches tall, he called me little lady- ‘blacks congenitally do not like to fight fires.’ "
The year was 1975. The place was Birmingham. And Reeves could sense that settling her class action suit to bring more blacks into the lily-white fire department and other city agencies was not going to be easy.
It got easier in time, through a combination of tough litigating and black power at the ballot box. Reeves, who was Birmingham counsel for the Washington, D.C.-based Lawyers’ Committee for Civil Rights Under Law, her colleague Stephen Spitz, and her former colleagues at the Justice Department won one round in the case and started another. After Richard Arrington, Jr., became Birmingham’s first black mayor in 1979, the case moved toward settlement.
Finally-or not so finally, as it turned out-in a May 1981 consent decree the city, the black plaintiffs, and the Justice Department agreed on a sweeping citywide affirmative action plan that forced rapid hiring and promoting of blacks in city government.
Since 1981 this consent decree has become the focus of a legal and ideological war that produced a major Supreme Court decision this June, allowing white fire fighters to go forward with a challenge to the decree’ preferences for blacks in promotion.
That war was intensified by a bitter brawl between the Reaganized Justice Department, which switched sides and sought to eviscerate an affirmative action consent decree it had signed in 1981, and a pro bono team from New York’s Cravath, Swaine & Moore headed by partner Robert Joffe.
Janet Malcolm’s License to Lie
by Stuart Taylor, Jr.
This has been a big year for Janet Malcolm, who writes for The New Yorker about psychoanalysts, journalists, murderers, and other interesting folks.
First she touched off a cyclone of journalistic indignation and soul-searching by asserting in a widely discussed article that "every journalist… is a kind of confidence man," seducing his subjects to gain their trust and then "betraying them without remorse."
And now she has won a ruling that every journalist has a First Amendment right to "fictionalize quotations," as a federal appeals court put it in dismissing a $10 million libel suit by a man who came across as a deluded egomaniac in quotations attributed to him by Malcolm.
In the 2-1 decision, the U.S. Court of Appeals for the 9th Circuit held that a writer may attribute to a public figure words that he did not speak, words depicting a vain, foolish, and dishonorable braggart, so long as the made-up quotations are arguably similar to things he did say.
This new constitutional right to "interpret" in the guise of quoting could enable Malcolm’s journalistic "confidence man" to dispense with seducing his subjects and proceed directly to betraying his readers.
Even if Malcolm did both, the court held on Aug. 4, she did not libel Jeffrey Masson in the two-part 1983 article and subsequent book trashing his reputation.
Masson is a psychoanalyst and scholar who was fired from a job at the Sigmund Freud Archives in 1981 after he had enraged the psychoanalytic establishment by going public with evidence questioning the integrity of Freud’s work.
Malcolm put quotation marks around several damning comments and self-characterizations attributed to Masson- "intellectual gigolo," for example-that he says she simply made up.
Give This Man A(nother) Job
by Stuart Taylor, Jr.
In the eyes of conservatives, William Lucas is a fine choice for the nation’s top civil-rights enforcement job because he seems to oppose affirmative-action plans that allocate jobs on the basis of race. And, oh yes, because of his race.
President George Bush’s candidate to be assistant attorney general for civil rights may not like racial quotas, but his nomination is a racial quota.
In the colorblind legal and political world for which conservatives purport to pine, it would be inconceivable for any president to choose a man as innocent of the law as Lucas for this crucial litigating position.
In the world we live in, there is much to be said for the symbolism of filling the top civil-rights job with a black man who has worked hard to overcome adversity and has made his life an inspiring success story. But there are people who fit that description who know something about civil-rights law. Lucas is not one of them. To put him in charge of civil-rights enforcement is to reduce the post to empty symbolism, to fail to take it seriously.
Sen. Arlen Specter (R-Pa.), a liberal on civil-rights issues who supports Lucas, articulated the nominee’s one qualification most clearly: "Bill Lucas’ major asset for this position is his 61 years of tough experience as a member of a minority."
Similar arguments have been made for preferential hiring of blacks as inner-city police officers and schoolteachers. But they have met with little sympathy from the conservatives who now back Lucas.
A Civil Rights Division chief who did not understand the law would be a pawn moved about on a chessboard by others. This is no job for a figurehead. It is a hands-on litigating post in which detailed knowledge of the law is the essence of policy-making. That law can be learned, but Lucas has displayed no capacity for learning it.
Woeful Ignorance
Smarm-Splattered Banner
by Stuart Taylor, Jr.
Leading Democrats and their favorite constitutional scholar have come up with an ingenious solution to the great flag-desecration crisis.
To get around the Supreme Court’s invalidation of laws aimed at flag-burning and flag-trampling political protesters, they want to make it a crime for, say, a husband and wife to trample Old Glory in the sacred precincts of the marital bedroom.
Far-fetched? Let Sen. Joseph Biden Jr. of Delaware. Gov. Mario Cuomo of New York, and Harvard Law Professor Laurence Tribe explain, as Tribe and others will do at three hearings this week before a House subcommittee. As these Democrats read it, the June 21 flag-burning decision, Texas v. Johnson, bars the government only from singling out for punishment those who publicly mistreat the flag as a way of expressing their contempt for it.
No problem, say Biden, Cuomo, Tribe, and company. No need to amend the Constitution; just make it a crime to mistreat a flag in private as well as in public, regardless of whether any political message is intended. Then throw the books at all flag desecraters, political protesters as well as … as well as … -well, as well as all the others, if any.
To make it constitutional, we will have to prosecute lazy scoutmasters who let the Stars and Stripes drag in the dirt and people who maliciously mistreat their own flags in the privacy of their homes for the sheer sadistic pleasure of it.
Biden and company will go to the ramparts to defend your rights to use contraceptives and read obscene books at home, but don’t let them catch you abusing a flag there.
‘Statutory Choo-Choo’