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Stuart Taylor, Jr.

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NewsHour: Supreme Court Action: Mandatory Drug Testing – January 14, 1997

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ELIZABETH FARNSWORTH: The case before the Supreme Court comes from Georgia. It concerns drug testing and political candidates. We get a briefing on today’s arguments from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for being with us, Stuart.

STUART TAYLOR, The American Lawyer: Nice to be here.

ELIZABETH FARNSWORTH: What are the facts in this case?

STUART TAYLOR: The Georgia state legislature in 1990 prompted in part by the federal indictment of Washington, D.C. Mayor Marion Barry on drug charges, passed a new law that required anyone who wanted to run for election for any high office in the state of Georgia, governor, lieutenant governor, secretary of state, commissioner of agriculture, state legislature, including judges from the Supreme Court on down had to pass a drug test first, specifically they had to submit a certificate showing that they are going to a state-approved laboratory, a doctor’s office, given a urine specimen, passed the test within 30 days of filing for the election. Two Libertarian candidates for state office in the 1994 election sued, claiming that this drug testing law violated their rights, their Fourth Amendment rights against unreasonable search and seizures, and their First Amendment rights of free speech. And the lower courts projected that claim, the Court of Appeals by a two to one vote. The candidates approved to the appeal to the Supreme Court and the Supreme Court will now decide whether it’s constitutional.

ELIZABETH FARNSWORTH: In the lower court cases the state of Georgia acknowledged that there was no evidence that people running for office had particular drug problems, right? So that’s not an issue here.

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Compassion Breeding Hubris

by Stuart Taylor, Jr.

About 3 a.m. one night last April, after reading the two federal appellate decisions creating a new right to assisted suicide, and being pulled one way by concerns about judicial imperialism, and the other way by heart-rending anecdotes of people dying in excruciating pain-or blowing their brains out or jumping off bridges-because they lacked the more humane option of lethal medication, I settled on an ingenious solution.

It was a "constitutional remand," proposed by Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit, in his concurrence in one of the cases now before the Supreme Court. (That case, Vacco v. Quill, and the case of Washington v. Glucksberg, in which the 9th Circuit struck down another statute barring assisted suicide, were argued Jan. 8.)

Judge Calabresi’s idea was to hold New York’s long-standing ban on assisting suicide to be semi-unconstitutional as applied to physicians who honor requests for lethal medication by mentally competent patients in the last stages of terminal illness.

Because the statute seemed anachronistic, and at least "close to violating" substantive due process or equal protection, Calabresi said, the court should strike it down for now, but should reserve the possibility of upholding a similar (or even identical) law if the legislature were to re-enact it while articulating persuasive policy justifications.

"That makes sense to me, at least at first blush," I concluded ("Life, Death, and Imperial Judges," April 15, 1996, Page 23). At second blush, it doesn’t make sense. Rather, it seems clear that the Supreme Court should uphold the long-standing line against assisted suicide, as most of the justices seem inclined to do.

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NewsHour: Stuart Taylor on a Supreme Court Case – January 8, 1997

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ELIZABETH FARNSWORTH: Let’s get one thing clear. This is about–the Supreme Court heard these cases that are about a doctor giving a patient, who is an adult, competent person, medication to take their own lives, right? This is not about a doctor administering an injection to somebody who’s wasting away?

STUART TAYLOR: That’s exactly what it’s about. And a patient–the lower courts held it would–this right would only apply if the patient was terminally ill and mentally competent, and that the patient would administer the medication him or herself. This case, it relates to large issues of other kinds, but strictly speaking, that’s what it’s about.

ELIZABETH FARNSWORTH: Okay. We just heard about the case in Washington State. Tell us about the New York case.

STUART TAYLOR: In the New York case it was rather similar–three doctors who want to be able to help their patients end their lives with dignity and with less pain. And three patients who were terminally ill and wanted that kind of help and who have all died since the litigation began sued to strike down a New York law that bars anyone from assisting in a suicide, anyone including a physician. All 50 states have laws like this, unless one accepts Oregon, which recently repealed it by referendum, but that’s tied up in litigation. In any event, that case went up to the U.S. Court of Appeals for the 2nd Circuit, and they struck down the law in a three-nothing vote, but by a different rationale, a substantially different rationale than the 9th Circuit and the case we just heard about.

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Outrages and Curmudgeonly Complaints

by Stuart Taylor, Jr.

In the spirit of the season, and in the hope of a fresh start-with malice toward none, with charity for all-in the new year, I hereby purge myself of various vexations left over from the old year.

LEFT-WING CLAPTRAP

• President Bill Clinton’s bold transcendence of all previous standards of shamelessness in his virtual auctioning off of prizes-nights in the White House’s Lincoln Bedroom, smaller slices of face time with the president, posts on piddling presidential panels-to the highest bidders from Wall Street to Djakarta. This from a man who said in his Inaugural Address: "Let us resolve to reform our politics so that power and privilege no longer shout down die voice. of the people."

• Vice President Al Gore Jr.’s slimy effort to make political hay out of his sister’s death from lung cancer. Telling tearful delegates at die Democratic National Convention how he had knelt by die two-pack-a-day smoker’s bed while she "breathed her last breath" in "nearly unbearable pain," Gore said, "That is why, until I draw my last bream, I will pour my heart and soul into the cause of protecting our children from the dangers of smoking."

This from a man who during the six years after his sister’s 1984 death had taken some $16,000 from the tobacco industry-which had also helped to fund the very convention at which he spoke. A man who had continued growing tobacco on his own land after his sister’s death, and who had rhapsodized at a 1988 campaign rally about how he had "shredded it, spiked it, put it in the bam and stripped it and sold it"

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A Civil Libertarian’s Nightmare

by Stuart Taylor, Jr.

Leroy Hendricks is every parent’s nightmare: a 62-year-old pedophile, convicted five times of molesting at least 10 children over a period of 40 years, who admits that he might well molest more if given the opportunity.

His case, Kansas v. Hendricks, is every civil libertarian’s nightmare.

That’s because, to prevent Hendricks from preying on more children, the Supreme Court may be tempted down the slippery slope of allowing states to lock people up-perhaps for life-based-on inherently Speculative predictions of future dangerousness. Down that slope lie questions like this: If pedophiles can be preventively detained for what Kansas calls a "mental abnormality" predisposing them to molest children- even though the likelihood that they will do so falls well short of certainty-why can’t recidivistic armed robbers, or violent drunks, or others be detained for what might be called a "sociopathic personality disorder," which makes them equally or even more likely to commit other crimes?

At the bottom of the slope lies the specter of totalitarianism, as Justice Antonio Scalia noted during the Dec. 10 oral argument in the case.

Anyone with a grain of concern for civil liberties would hesitate to venture down this slope. But do die justices have a choice, short of telling Kansas that it must free Hendricks until-as Chief Justice William Rehnquist put it-"he goes out and does it again"?

Hendricks is one of thousands of sexual predators who will remain a threat to children as long as they live. Studies indicate that many have had dozens, even hundreds, of victims. Some are in prison, but few are serving life sentences.

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NewsHour: Supreme Court On Predators – December 10, 1996

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JIM LEHRER: We go first tonight to the Supreme Court argument on sexual predators. The case comes from Kansas, where five-time convicted child molester LeRoy Hendricks remains behind bars even though he has completed his criminal sentences. He was found to be mentally abnormal and dangerous. Under the Kansas Sexually Violent Predators Act, that’s enough to prevent his release. He’s challenging the constitutionality of the legislation. NewsHour regular Stuart Taylor, legal correspondent for The American Lawyer and Legal Times, covered the hearing today. Stuart, welcome. First, how does this Kansas law actually work?

STUART TAYLOR, The American Lawyer: It states that after a convicted sex offender, sexual predator, finishes his term, or as he’s about to finish his term, the prosecutor can go to the court and say this man is still dangerous, he’s got a mental abnormality that makes him a continuing threat to commit sexually violent acts, in particular to children in this case, and we want him locked up indefinitely, as long as he’s dangerous. And he has a right to a jury trial, and if a jury finds beyond a reasonable doubt that he’s got a mental abnormality, not to be confused, by the way, with a mental illness in the traditional sense, and that he’s likely to continue molesting children or committing sexually violent acts because of it, he can be confined in a "mental institution" for so long as that remains the case, or until he can come in and prove that he’s no longer ill or dangerous.

JIM LEHRER: Do there have to be repeat offenses, or can this happen after just one?

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Why the Courts Will Uphold 209

by Stuart Taylor, Jr.

No state shall…deny to any person within its jurisdiction the equal protection of the laws.

–U.S. Constitution, Amendment XIV

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin….

–California Civil Rights Initiative

(added to state constitution by voters’ adoption of Proposition 209 on Nov. 5)

The question presented is whether the second of these two laws violates the first. The question should answer itself, even for those who think the CCRI is bad policy. The notion that a state violates the 14th Amendment’s prohibition of almost all racial discrimination when it prohibits all racial discrimination is absurd on its face. Butt a little absurdity has not deterred civil rights groups, led by the American Union, from rushing into federal court (and shopping for a sympathetic judge) with a claim that the CCRI must be enjoined as contrary to the equal protection clause. Nor has it prevented U.S. District Judge Thelton Henderson of San Francisco from issuing a temporary restraining order (on Nov. 27) finding that the plaintiffs have "a strong possibility of success on the merits."

How strong? Some predictions: Assuming that Judge Henderson grants a preliminary injunction, the U.S. Court of Appeals for the 9th Circuit will reverse him and uphold the CCRI’s constitutionality. The Supreme Court will then either decline to hear the case or add an exclamation point by upholding the CCRI-unanimously.

The strategy of the ACLU and its allies represents "an Orwellian assault on democracy," in the words of columnist Charles Krauthammer.

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NewsHour: A Look At Several High Court Cases – December 4, 1996

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SPENCER MICHELS: Nine years ago, former immigration officer Robert Park lobbied the Arizona legislature to pass a bill mandating that official government business be done in English only. The bill failed, but Park and his group, Arizonans for Official English, qualified an initiative for the 1988 ballot, an amendment to the state constitution. It passed by less than 1 percent of the vote.

SPOKESMAN: (talking to gentleman) You have to be able to lift up to 50 pounds.

SPENCER MICHELS: According to Park, the measure was designed not to stop the speaking of Spanish in government offices like this job center, but rather to make sure government actions, laws, decrees, and documents be written only in English. It also declared English the official language of Arizona, a policy now embraced by 22 other states.

ROBERT PARK, Arizonans for Official English: All it requires is that anything that’s binding on the state, any law, regulation, ordinance, whatever the case may be, must be in the English language to be enforceable.

SPENCER MICHELS: Park says he worked to pass the measure because he was disturbed that high levels of immigration put pressure on the government for bilingual ballots, education, and routine business.

ROBERT PARK: Official bilingualism. It’s dangerous. It’s not what we need in this country. We’ve got enough problems with ethnic groups and other people. All we have to do is look to our neighbors to the North in Canada and see what divisions are created by official bilingualism, where you have two official languages. It’s tearing the country apart.

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NewsHour: Brady Bill Tested in Supreme Court. – December 3, 1996

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BETTY ANN BOWSER: In 1981, when a lone gunman attempted to assassinate President Ronald Reagan, his press secretary, James Brady, was also seriously wounded. The fallout from that shooting and from several other widely publicized shooting incidents brought calls for federal legislation that would require criminal background checks on people who want to buy handguns. After much legislative controversy, a bill named after Brady was signed into law in November of 1993.

PRESIDENT CLINTON: It will be step one in taking our streets back, taking our children back, reclaiming our families, and our future.

BETTY ANN BOWSER: Under the Brady Bill, states could refuse to sell handguns to anyone indicted or convicted of a felony, and to those who had ever had a restraining order placed against them. The work of checking those backgrounds was given to state and local chief law enforcement officers. They were required to review the forms within five days, destroy applications of those declared eligible, and inform in writing those who were denied. But at the Graham County Sheriff’s Department in Arizona, Sheriff Richard Mack said he was too busy to do those jobs.

SHERIFF RICHARD MACK, Graham County, Arizona: We have gun problems here, gang problems here. Am I supposed to know those problems so I can check a criminal background check on someone who’s never committed a wrong in their life? Can’t do it.

BETTY ANN BOWSER: Sheriff Mack organized a gun rally to raise money to sue the federal government. He said the requirements were an infringement on states’ rights, a violation of the 10th amendment, which reserves to the states those powers not specifically given to the federal government in the Constitution.

SHERIFF RICHARD MACK: We cannot allow our constitutional rights to be trampled on like our federal government seems to be trampling on them.

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Heads, You’re Racist…

by Stuart Taylor, Jr.

Tails, you’re racist.  That seems to be the basic indictment of us white guys espoused by virtuous black people like Jesse Jackson, Kweisi Mfume, Carl Rowan, and Willie Brown.

The same indictment is also parroted by a lot of virtuous white guys (and women), some of whom apparently feel that their best shot at avoiding the suspicion of racism in themselves is a hair-trigger readiness to impute racism to others.

Among the recent developments that bring these thoughts to mind are the furor over the famous Texaco tapes, the publication of Rowan’s new book, the success of black congressional candidates in majority-white districts this year, and the California referendum barring racial preference.

Shelby Steele, a leading black critic of preferences, suggested a useful framework for making sense of these developments before most of them had occurred.

"Whites on the left tend to recompose their vulnerability to the stereotype of whites as racists into an exaggerated deference toward minorities," Steele wrote in the Oct. 7 New Republic. "Preferences give liberal whites the chance to show deference to black victimization, and they give the black leadership the chance to keep asserting that racism is the main problem that blacks face."

Consider the tale of the Texaco tapes. They were surreptitiously recorded at an August 1994 meeting in which top executives discussed a discrimination suit by nonwhite employees. The executives spoke at length about destroying relevant documents. What magnified this from an important story about possible obstruction of justice into a national sensation was a Nov. 4 report by The New York Times. It said that top Texaco executives had been caught on tape "belittling the company’s minority employees with racial epithets," including "nigger," and with phrases like "black jelly beans."