Author Archives

Stuart Taylor, Jr.

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12 Points To Consider In Replacing Souter

by Stuart Taylor, Jr.

National Journal

Editor’s Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. — Stuart Taylor Jr., May 5

Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:

• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 — many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter’s fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.

He moved in his first few years from moderate-liberal to liberal — most notably in joining the Sandra Day O’Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues — abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" — he was never conservative.

• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.

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Did Torture Save Lives?

by Stuart Taylor, Jr.

National Journal

"A democracy as resilient as ours must reject the false choice between our security and our ideals," President Obama said on April 16, "and that is why these methods of interrogation are already a thing of the past."

But is it really a false choice? It’s certainly tempting to think so. The fashionable assumption that coercive interrogation (up to and including torture) never saved a single life makes it easy to resolve what otherwise would be an agonizing moral quandary.

The same assumption makes it even easier for congressional Democrats, human-rights activists, and George W. Bush-hating avengers to call for prosecuting and imprisoning the former president and his entire national security team, including their lawyers. The charge: approving brutal methods — seen by many as illegal torture — that were also blessed, at least implicitly, by Nancy Pelosi, now the House speaker, and other Intelligence Committee members in and after 2002.

But there is a body of evidence suggesting that brutal interrogation methods may indeed have saved lives, perhaps a great many lives — and that renouncing those methods may someday end up costing many, many more.

To be sure, the evidence in the public record is not conclusive. It comes mainly from Bush appointees and Central Intelligence Agency officials with records to defend and axes to grind. There is plenty of countervailing evidence coming from critics who have less access to the classified information that tells much of the story and have their own axes to grind. There are also plausible arguments for renouncing coercive interrogation even if it does save some lives.

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The Long Arm of the Law

by Stuart Taylor, Jr.

Newsweek

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.Koh is "all about depriving Amer

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.

Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan’s tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale-but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.

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A Judicial Decision That Plagues Obama

by Stuart Taylor, Jr.

National Journal

Before 9/11, judges had no power to entertain writs of habeas corpus (petitions for release) by enemy fighters taken into custody by U.S. forces overseas.

Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

That might still be the law had the Bush administration given the hundreds of suspected "enemy combatants" whom it sent to its Guantanamo Bay prison camp in and after 2002 a fair opportunity to show that they were innocents seized and held by mistake, as many apparently were, an almost inevitable feature of this war against terrorists who masquerade as civilians.

But instead, the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

These bad policies have led to muddled law. Understandably offended by President Bush’s approach and the black eye that it was giving America overseas, the Supreme Court deep-sixed Johnson v. Eisentrager and ruled for detainees in three cases culminating in a 5-4 decision last June asserting broad judicial power to hear petitions for release from Guantanamo.

In the process, the justices struck down parts of two recent acts of Congress and assumed unprecedented, open-ended, and potentially disruptive power to oversee the elected branches’ conduct of war. They left it to the U.S. District and Appeals Courts in the District of Columbia to make up detailed rules on an ad hoc basis.

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CIA Torture – And A Spanish Inquisition

by Stuart Taylor, Jr.

National Journal

"The cell and room were air-conditioned and were very cold. Very loud, shouting-type music was constantly playing…. One of the interrogators wrapped a towel around my neck, they then used it to swing me around and smash me repeatedly against the hard walls of the room. I was also repeatedly slapped in the face…. I was then put into the tall black box for what I think was about one and a half to two hours…. It was difficult to breathe…. I had to crouch down…. The wound on my leg began to open and started to bleed…. I may have slept or maybe fainted. I was then dragged from the small box … and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators [poured] water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position…. I vomited. The same torture [was] carried out again…. I thought I was going to die."

These chilling excerpts only begin to sketch the horrors described in a leaked copy of a report to the CIA by the International Committee of the Red Cross, detailing its interviews with Abu Zubaydah (who is quoted above) and 13 other Qaeda terrorists at Guantanamo Bay in late 2006 about their interrogations in secret CIA prisons starting in 2002.

Laid out last month by journalist Mark Danner in a 13,000-word New York Review of Books article, the interviews paint an even uglier picture than I had imagined of the months of multiple, unrelenting torments that the CIA used to break "high-value" Qaeda detainees. Some of these CIA practices have become familiar. Others are detailed for the first time in the Red Cross report: smashing defenseless men against hard walls over and over again; forcing them to stand naked and cold with arms shackled over their heads for days at a time while urinating and defecating on themselves; and more.

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How To Deny Employees Free Choice

by Stuart Taylor, Jr.

National Journal

I don’t know whether it would be good for employees, or for the country, if millions more were unionized, as will eventually occur if Congress passes the Obama-backed Employee Free Choice Act, now the subject of a titanic lobbying battle focused on a handful of moderate senators.

I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part because the penalties for employers who fire and intimidate pro-union employees and stall unionization elections are too weak to deter such misconduct.

But I am very sure that the radical changes that the proposed law would make in long-established labor laws are overkill. The most publicized "card-check" provision would essentially end use of the secret-ballot elections that have been required (at the option of employers) for more than 60 years to determine whether a majority of employees want to unionize their workplaces. Even more alarming to some employers is another provision that would empower government arbitrators to dictate contractual terms when unions and management cannot agree.

These measures are not necessary to remedy the employer abuses of which unions complain. They would probably be bad for employees and employers alike, and they might kill countless jobs at a time when unemployment is already soaring.

The card-check provision would require an employer to immediately recognize as its employees’ collective bargaining agent any union that could persuade a majority of the workers to sign union authorization cards. Secret-ballot elections would be held only if requested by unions, which would have little incentive to do so.

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Let The Honest Talk About Race Begin

by Stuart Taylor, Jr.

National Journal

Dear Mr. Attorney General:

Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" — a topic about which we talk incessantly — was unworthy of the admirable public servant I believe you to be.

The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid of thoughtful contributions to racial dialogue.

You can do much better. Please use your bully pulpit in the future to cut through the usual cant and state some politically incorrect truths about race in America that would carry special weight if they came from you. That would require mustering the courage to take on the Democratic Party’s powerful racial-grievance lobby. But it would do the country a lot of good.

The one point that you developed in a bit of detail in the February 18 speech was especially silly: "Black history is given a separate, and clearly not equal, treatment…. Until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so-called ‘real’ American history."

Bosh. The reality is that our high schools and universities are quite clearly focusing disproportionate attention on black history.

The proof includes a poll published last year in which 2,000 high school juniors and seniors in all 50 states were asked to name the 10 most famous Americans, other than presidents and first ladies. The top three finishers were black: Martin Luther King Jr. (67 percent), Rosa Parks (60 percent), and Harriet Tubman (44 percent). So is the only living finisher, Oprah Winfrey (22 percent).

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Nobody’s Perfect, But Don’t Tell Obama Bashers

by Stuart Taylor, Jr.

National Journal

After many months of adoring media coverage and Democratic triumphalism, President Obama is now getting pasted by carnivorous columnists, angry activists, and House hotheads for every bow to bipartisanship, every deviation from liberal orthodoxy, and every tax-deficient nominee.

The problem is not that Obama is doing a bad job. For a new president beset with the most daunting combination of economic and national security nightmares in many decades, and with a recent run of bad luck, he’s doing his job quite well. Shepherding the $789 billion economic stimulus bill through the ideologically polarized Congress was no small feat. And for a man seeking to overcome determined Republican opposition without demonizing his adversaries, he hit the right notes (if too long-windedly) in his first prime-time presidential press conference on Monday.

The president’s political problem is that while he tries desperately to steer the storm-tossed ship of state off the rocks, partisans in both parties are reflexively acting out "a lot of bad habits built up here in Washington," as Obama told the press.

He stuck, despite a slip or two into tough rhetoric, to his conviction that fighting for his policy agenda and rejecting "the failed theories of the last eight years" does not require ascribing base motives to the opposition, disavowing any effort at compromise, or giving up on what some call his promise of "post-partisanship."

Obama also understands that a few party-line votes driven by clashing economic philosophies do not spell the doom of post-partisanship, which boils down to seeking common ground when possible and treating political adversaries with respect. Obama’s extraordinary overtures to Republicans, he explained, "were not designed simply to get some short-term votes. They were designed to try to build up some trust over time."

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A Tough Choice Draws Nearer

by Stuart Taylor, Jr.

Newsweek

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer. Ginsburg, 75, has no app…

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.A reminder came with the news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery

President Obama has tried to remain true to his campaign message of bipartisanship. But he’s struggled to get everyone else to play along. Congressional Democrats, finally out from under the GOP thumb, want to enjoy their powers, while Republicans are already plotting their comeback. It’ll only get worse with time, as firm decisions have to be made on issues that are loaded with ideology and emotion.

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Does The Ledbetter Law Benefit Workers, Or Lawyers?

by Stuart Taylor, Jr.

National Journal

This has been a good week, and may be a good year, for lawyers, civil-rights groups and others who think that America needs many more lawsuits to combat what they portray as pervasive job discrimination against women, minorities, the elderly, and the disabled.

Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.

Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.

These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.

This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.

Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.

The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.