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Stuart Taylor, Jr.

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The Right Should Stop Demagoguing — And Obama Should Stop Distorting Facts – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

As has occurred with dispiriting regularity in recent decades, the current debate over filling a vacancy on the Supreme Court has been marred — already! — by a considerable dose of demagogy and false factual claims. It would be nice to see the media truth-squadding such stuff, without the usual double standards.

Take, for example, the wildly overheated denunciations of Judge Sonia Sotomayor by Newt Gingrich and Rush Limbaugh, on the one hand, and the demonstrably untrue assertions that President Obama has repeatedly made about the Supreme Court’s 2007 ruling against the now-famous Lilly Ledbetter, on the other.

Limbaugh has denounced Sotomayor as a "reverse racist" and a "hack" — adding that "Obama is the greatest living example of a reverse racist, and now he’s appointed one." Gingrich has also called her a racist and demanded that she withdraw.

"Hack?" Judge Sotomayor’s legal opinions may not be the stuff of brilliance, as some liberal critics have complained. But she is an accomplished jurist with many admirers and a stellar academic record at Princeton and Yale law School. She is also an inspiring, up-from-modest-origins American-dream life story.

"Racist"? Limbaugh and Gingrich based this imprecation on Sotomayor’s assertion in a 2001 speech that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life."

I, too, have criticized that assertion. But in the apt words of former Karl Rove aide Peter Wehner, now of the Ethics and Public Policy Center:

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The Politics Of Naming Sotomayor – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

I have given some reasons (noted below) why Sonia Sotomayor might be an especially controversial pick with conservatives and some centrists — not to mention yours truly.

So what political calculation might underlie President Obama‘s decision to nominate her anyway, despite his various suggestions that he would like to make a consensus pick?

It’s possible that Obama was simply wowed by her up-from-modest-circumstances life story, her supposed "empathy" for the poor and powerless, her summa cum laude performance at Princeton University, her judicial opinions on obscure subjects, or her performance when Obama interviewed her.

But the political payoff of naming the first Hispanic justice — and a woman to boot — seems to me the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially, and not only because of the obvious payoff with Hispanic voters.

The choice of Sotomayor also puts Republicans and moderate Democrats who may be deeply unhappy with her jurisprudence in a lose-lose position, and Obama in a win-win position.

If Republicans attack Judge Sotomayor’s more controversial actions, they risk provoking a backlash among Hispanic voters, who have already been moving into the Democratic column in droves.

On the other hand, if Republicans hold their fire to avoid offending Hispanic voters, the president gets the benefit of installing a justice who seems deep into Democratic identity politics without the cost of an especially contentious confirmation battle.

The Republican dilemma is underscored by the fact that the Sotomayor actions they might be most eager to attack are themselves especially likely to engage the sympathies of Hispanic voters.

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Identity Politics And Sonia Sotomayor – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life."
— Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001

The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor — widely touted as a possible Obama nominee to the Supreme Court — has drawn very little attention in the mainstream media since it was quoted deep inside The New York Times on May 15.

It deserves more scrutiny, because apart from Sotomayor’s Supreme Court prospects, her thinking is representative of the Democratic Party’s powerful identity-politics wing.

Sotomayor also referred to the cardinal duty of judges to be impartial as a mere "aspiration because it denies the fact that we are by our experiences making different choices than others." And she suggested that "inherent physiological or cultural differences" may help explain why "our gender and national origins may and will make a difference in our judging."

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

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Should Justice Be Driven By ‘Empathy’? – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:

What matters on the Supreme Court is those 5 percent of cases that are truly difficult… In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or… whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" — and to all others — not to mention the constitutional command to provide all persons "the equal protection of the laws."

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Indirect Vetting: Necessary But Tricky – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

President Obama will not begin interviewing possible Supreme Court nominees until next week at the earliest, according to the White House. So what’s going on behind the scenes?

I don’t know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is probably devoting lots of attention to ideological vetting.

The goal of this process, which reportedly started long before it was clear that there would be a Supreme Court vacancy to fill, is to forecast insofar as possible how each prospect might rule on the biggest issues likely to come before the court in the next few years.

Like any president, Obama would prefer a nominee likely to uphold his own personal convictions on such issues as presidential war powers, abortion, racial affirmative action, voting rights, gay rights, religion in public life, assisted suicide, campaign finance reform and use of a litigation as a tool of social reform. Indeed, as someone who taught constitutional law, Obama may care more than most presidents about how his nominee will handle the big issues.

Ideological vetting of judicial nominees is a tricky business. A quotation often ascribed to President Lincoln helps explain why. Lincoln wanted to appoint a chief justice who would uphold the Union’s legal tender law, which required people to accept paper money as payment for private debts. "We cannot ask a man what he will do," Lincoln supposedly said, "and, if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."

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Looking Forward, Not Backward: Refining American Interrogation Law

by Stuart Taylor, Jr and Benjamin Wittes

The Brookings Institution

Introduction

The worldwide scandal spurred by the abuse of prisoners in Abu Ghraib, Guantánamo, Afghanistan and secret CIA prisons during the Bush Administration has been a stain on America’s honor and a catastrophe for our national image. Understandably eager to save innocent lives by breaking the resistance of a few Al Qaeda leaders, Bush and his aides went way overboard. Instead of crafting special rules to allow for exceptionally tough interrogations of those few leaders and maintaining strict limits to ensure that those interrogations stopped short of torture, the Bush team chose to gut the laws, rules and customs restraining coercive interrogations. They did this with a public bravado and an ostentatious disregard for international law that both scandalized world opinion and sent dangerous signals down through the ranks. These signals contributed to lawlessness and to confusion about what the rules were supposed to be. They helped open the floodgates both to CIA excesses widely seen as torture and to brutal treatment by the military of hundreds of small-fry and mistakenly-arrested innocents in Iraq and Afghanistan and of an unknown number of prisoners at Guantánamo. All this inspired widespread international and domestic revulsion and gravely undermined America’s political and moral standing and ability to work with some allied governments.

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Obama’s Ideal Justice

by Stuart Taylor, Jr.

National Journal

Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court’s progressive wing.

Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama’s policy); and much more.

The preceding parentheticals suggest some of the reasons I’m cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."

A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.

This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter’s seat with anyone seen as more centrist would be a stunning abandonment of Obama’s campaign stance that would infuriate his liberal base.

But nominating a crusading liberal activist could seriously jeopardize the president’s own best interests, in terms of policy as well as politics. And although some of Obama’s past statements are seen by critics as a formula for judicial activism, he has also shown awareness of its perils.

As a matter of policy, consider Obama’s most important responsibility: protecting our national security from jihadist terrorism and other threats.

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Remote Control: The Supreme Court’s greatest failing

by Stuart Taylor, Jr.

National Journal

The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.

I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that — places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.

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The Voting Rights Act And Its Wrongs

by Stuart Taylor, Jr.

National Journal

There was something of a disconnect between the April 29 oral arguments at the Supreme Court about the constitutionality of the Voting Rights Act’s celebrated Section 5 and that provision’s most important contemporary effect on the body politic.

The arguments, and the media coverage, focused on whether the South — including the tiny Texas municipal utility district that brought the case — and other areas covered by Section 5 remain more racist than the rest of the country. That’s the premise on which Congress, in 2006, extended for another 25 years the extraordinary federal oversight that in the late 1960s broke the back of persistent white efforts to disenfranchise black voters.

But in recent years Section 5’s most important impact has been less benign. It has been used to pressure covered states and localities to adopt extreme racial gerrymanders to create more safe districts for black and Hispanic politicians.

Section 5 could have a large impact on the redrawing of thousands of election districts after next year’s census. It virtually requires nine mostly Southern states and portions of five others (called "covered jurisdictions") to submit their redistricting plans — as well as all other changes in voting rules, right down to moving a polling place across the street — for "prescreening" by the Justice Department’s Civil Rights Division.

That division, long staffed mainly by liberal Democrats, has a pattern of using its vast Section 5 powers over mostly conservative states to push for racial gerrymanders.

(Covered jurisdictions also have the option of seeking federal court approval, but that process is so cumbersome that it has rarely been used.)