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Stuart Taylor, Jr.

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A Futile Balancing Act

by Stuart Taylor, Jr.

When Robert Bork agrees with Laurence Tribe, and with just about every other law professor and mainstream economist in the land, and with President Bill Clinton; and when the editorial page of The Wall Street Journal is in sync with those of The New York Times and The Washington Post, and when they are all united against something, it’s awfully tempting to be for it.

The push for a balanced budget amendment to the Constitution is what they all oppose- intermittently, in the president’s case.

And so I’d like to be for it. I’d like to agree with literal sage Michael Kinsley, whose contrarian side wrote in 1992 (and still believes) that it’s time to "call this hoary Republican bluff," because "the nation’s deficit addiction must… be cured." I’d also like to agree with conservative sage James Q. Wilson, a "reluctant convert" who last year called the balanced budget amendment "a bad idea whose time has come," and a necessary cure for the public’s "free-lunch mentality."

I’d like to agree, but I can’t quite get there.

That’s because the more you look at the various proposed formulations of the balanced budget amendment-which came close to passing Congress in 1995 and will have more support in the newly elected Congress-the more clear it becomes that (in Bork’s words) this "cure seems likely to be either ineffective or damaging, or both."

In addition, the view that the voters are hopelessly addicted to mortgaging our children’s future-through reckless deficit spending from which we can save ourselves only by amending the Constitution-is a bit less convincing now than it was a few years ago.

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Is Innocence Irrelevant?

by Stuart Taylor, Jr.

On Nov. 7, at about noon, the Supreme Court casually cleared the way for an execution at 9 o’clock that night-in the face of overwhelming evidence that the man to be killed was probably innocent of the prison murder for which he had been condemned.

All nine justices knew or had reason to know of Joseph Payne’s probable innocence. It would have been apparent to any fair-minded reader of the briefs and lower court opinions. These show that Payne’s conviction-charge of burning fellow prisoner David Dunford to death in his cell in 1985-hinged on the uncorroborated testimony of "an appalling and known prevaricator" (in the words of the U.S. Court of Appeals for the 4th Circuit) named Robert Smith, who was released from prison 15 years early, mainly for fingering Payne, and who has himself been named as the killer by four eyewitnesses and two others who heard Smith brag of having burned Dunford directly after it happened. (See "Innocent? Execute Anyway," Sept. 30, 1996, Page 29.)

Yet Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, and Stephen Breyer were prepared to let the commonwealth of Virginia kill Joe Payne anyway. Only Justices John Paul Stevens and Ruth Bader Ginsberg dissented from their colleagues’ no-comment denial of a stay of execution.

This willingness to allow the execution of a man who had proven his innocence-by at least a preponderance of the evidence-was a first in recent history. It provides a grim harbinger of what is to come.

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Did Clinton Harass Paula Jones?

by Susan Estrich and Stuart Taylor Jr.

Slate.com

From: Susan Estrich
To: Stuart Taylor Jr.
Posted Thursday, Nov. 7, 1996, at 3:30 AM ET

Dear Stu:

This is going to be fun. Before too long, I hope, we can talk about what really interests me, which is that sex is back at work–and that might just be fine, if we could just learn to respect each other. My students wear unbelievably short skirts to interviews and assert the right to flirt to equalize things with the guys, who talk about sports. I think they might be right. So, first Anita and Paula, and we can fight about who is consistent, and who has bad motives, and then on to what matters.

Let me begin. I don’t really think of either of these as sexual-harassment cases, if you want to know the truth. What troubled me in the Anita Hill-Clarence Thomas affair was less what he said to her a decade ago (you know me, I would’ve laughed and told him to get lost, but she’s not me, and he was chair of the Equal Employment Opportunity Commission–which makes him pretty “shabby” in my book, but wouldn’t disqualify him from a seat on the Supreme Court) than what those senators did to her, and how Clarence Thomas–a man I thought unqualified to serve on the Supreme Court–responded by playing the race card and turning himself into the victim of a racially motivated attack. I wouldn’t want Johnnie Cochran to be on the Supreme Court either.

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Paula Jones: A Federal Crime?

by Stuart Taylor, Jr.

A stunning irony, so far unnoticed, lurks in a pair of pending Supreme Court cases: Clinton v. Jones, in which the president and his Department of Justice seek to block a sexual harassment lawsuit against him until after he leaves office, and the lesser-known United States v. Lanier.

The irony is that the crude sexual advances of which Bill Clinton stands accused by Paula Corbin Jones would apparently be a federal crime under the Clinton Justice Department’s legal analysis in the case of David Lanier, who was a monstrously lecherous chancery court judge in rural western Tennessee.

Clinton’s alleged conduct would be even more clearly a federal crime under the analysis suggested in amicus briefs filed by leading feminist groups and scholars.

Another irony is that while the Lanier case has become (understandably) a cause celebre in the women’s movement-with every major feminist legal advocacy group in the nation urging reversal of an appeals court decision that threw out Lanier’s convictions-the president’s so-far-successful effort to slam the courthouse door in the face of Paula Jones until the year 2001 has prompted not a whimper of protest from any of them.

Given all this, the rumor in the Supreme Court press room-that the cases may be set for argument the same day, sometime in January-seems almost too delicious to be true.

(For a fuller discussion of the Jones-Clinton case, see "Her Case Against Clinton," in the November issue of The American Lawyer, which I wrote before becoming aware of the parallels presented by the Lanier case.)

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Her Case Against Clinton – Stronger Than Anita Hill’s Against Thomas

by Stuart Taylor, Jr

The American Lawyer

WHEN WILLIAM JEFFERSON CLINTON V. PAULA CORBIN JONES COMES BEFORE THE U.S. Supreme Court – as expected – in January, all eyes will be on Justice Clarence Thomas. Will a flicker of emotion crease his usually impassive glare as he ponders a she-said, he-said fact pattern so hauntingly reminiscent of his own ordeal five years ago? Will he think of how – in the words that spill like a raging torrent from Thomas’s close friend (and sometime self-appointed spokesman) Armstrong Williams – "Mrs. Clinton went out to San Francisco to present Anita Hill with the woman of the year award" ? Williams adds: "I wonder when she’s going to present an award to Paula Jones? And where is NOW? People need to see the hypocrisy here."

It was actually an American Bar Association commission on women that presented an award to Hill. But Williams has a point. Hillary Clinton spoke at the August 1992 award luncheon, celebrating Hill for having "transformed consciousness and changed history with her courageous testimony" against Thomas. Both women were hailed as heroines at that ABA convention, by a host of women lawyers and others who have shunned Jones as a pariah.

Generally overlooked, meanwhile, has been the fact that the evidence supporting Paula Jones’s allegations of predatory, if nor depraved, behavior by Bill Clinton is far stronger than the evidence supporting Anita Hill’s allegations of far less serious conduct by Clarence Thomas.

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Racial Preferences Meet Democracy

by Stuart Taylor, Jr.

"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 in the operation of public employment, public education, or public contracting."

So says the key provision of the California Civil Rights Initiative (CCRI)-otherwise known as Proposition 209-which will go before the state’s voters on Nov. 5. It will be the first up-or-down popular vote ever on racial preferences.

There are good reasons to vote no:

• The CCRI would mean a dramatic drop in admissions of black and Hispanic students to the University of California’s elite campuses, which serve as gate-ways to opportunity in a society still plagued by racial inequality.

• It would ban not only preferential selection processes but also racially targeted recruitment and outreach programs that seek to increase the minority applicant pool.

• It could make it more difficult to offset the potent but hard-to-prove brand of discrimination against black and Hispanic candidates that may still prevail in many police and fire departments and other government workplaces.

• Such a cold-turkey withdrawal from the current system could have a dispiriting effect on many black and Hispanic people who have come to believe-sincerely, if erroneously-that racial preferences are the only way they can get a fair shake.

• Many CCRI supporters preach a colorblind absolutism that may impede wise public policy, and that is required neither by the Constitution nor by principles of fairness and morality-not, at least, in comparison with such established practices as preferential admissions of affluent alumni children.

But for all that, I would vote yes.

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NewsHour: Supreme Court – Abortion – October 16, 1996

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ELIZABETH FARNSWORTH: Now more on this case and other action at the court this week from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Thanks for coming, Stuart. Tell us about the arguments in the court today about this case.

American Lawyer: They were very lively arguments today. The issue before the court focused on the so-called 15-foot floating buffer zone. The, the protesters did not appeal the order that said they can’t block people, grab people, shove people. They were saying, we ought to have a right to go up to people and speak to them, hand them literature and so forth, and this 15-foot zone prevents us from doing that. Uh, the all–eight of the nine justices were jumping in during the arguments on one side or the other, and there are about three on each side, you can tell, and about three in the middle arguing back and forth with each other, using the justices as props. And it was an exceptionally lively argument that way, a difficult one to call. I mean, in, in this case the court is fine-tuning a precedent it already laid down a couple of years ago in terms of it’s fairly clear that they can do–that the courts can do something to prevent protesters from unduly harassing women who want to go into the clinics. It’s also fairly clear they–they don’t–the courts don’t have carte blanche just to say you’ve got to stay 300 feet away, and the court is trying to decide in this case, you know, where to draw the line.

ELIZABETH FARNSWORTH: Does it make a difference that this is a case about an abortion clinic, if it were a heart clinic or something else, would it make a difference, do you think?

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The Court at the Crossroads

by Stuart Taylor, Jr.

While you would hardly know it from the tenor of the campaign, this year’s presidential election could have a far more dramatic impact than most on the political-philosophical orientation of the Supreme Court, and thus on the direction of constitutional law.

That’s because the Court is now so closely divided on such vital Issues that the replacement of one of the conservative justices with a liberal, or vice versa, could make an enormous difference-above all, on questions of race, congressional power, and states’ rights.

For this reason, the next confirmation battle could well be reminiscent of the 1987 donnybrook over Robert Bork. The stakes were high then mainly because the pivotal justice whom Bork would have replaced, Lewis Powell Jr., had sided with liberal majorities in so many critical 5-4 decisions.

Of course, it’s entirely possible that all nine justices will stay on for four more years, or that any who step down will be replaced with people of similar orientation. But two scenarios could bring epochal change:

Scenario 1: Bob Dole wins; a liberal retires (most likely 76-year-old Justice John Paul Stevens, the Court’s oldest and most liberal member); Dole replaces him with a conservative; and suddenly we have the most conservative Court in modern history.

Scenario 2: President Clinton wins (as seems far more probable); a conservative retires (most likely 72-year-old Chief Justice William Rehnquist); the president replaces him (or elevates Justice Ruth Bader Ginsburg and then replaces her) with a liberal or moderate liberal; and suddenly we have the most liberal Court since (at least) Earl Warren.

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NewsHour: New Supreme Court Session – October 7, 1996

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CHARLAYNE HUNTER-GAULT: It’s the first Monday in October, and that means the beginning of a new term for the U.S. Supreme Court. On the docket are a wide spectrum of cases ranging from physician-assisted suicide to sexual harassment. We get a preview now of the term ahead from NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Stuart, it’s nice to see you again after a summer’s respite. How would you characterize the court docket for the coming term? STUART TAYLOR, The American Lawyer: It’s a very full docket with a great range of very important cases, but I think the ones that tower above the others, the ones that will maybe ten years from now really look like seminal cases are the two physician-assisted suicide cases from the states of Washington and New York in which lower courts struck down laws that bar doctors from helping patients hasten death when the patients are suffering.

CHARLAYNE HUNTER-GAULT: Mm-hmm. And so what are they considering here?

MR. TAYLOR: Uh, the issue for the Supreme Court is whether there’s a constitutional right for a patient who is terminally ill, who is competent, and who wants to hasten death because the patient’s in pain or otherwise suffering, for that patient to ask his doctor to give him or her a lethal injection, for example, and for the doctor to go ahead and do it, because the problem, as perceived by those who support this, is that it’s illegal almost everywhere for doctors to do that, and has been since time immemorial. The Hippocratic Oath bars it.

CHARLAYNE HUNTER-GAULT: And the constitutional principle that’s being–that is at issue here–

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Monsters and Boy Scouts

by Stuart Taylor, Jr.

At first blush, accused Oklahoma City bomber Timothy McVeigh’s pending motion for permission to give media interviews-including one with a famous TV journalist, to be chosen from a gaggle of eager applicants who have already auditioned for the opportunity-might seem an occasion for revulsion.

Here’s how the prosecution characterized the motion in a seething Aug. 29 court response filed with Chief Judge Richard Matsch, of the U.S. District Court in Denver:

"McVeigh… seeks this court’s authorization of an extraordinary attempt to manipulate the news media to produce a favorable impact on the potential jury pool. According to the motion, defendant’s counsel has already met with such well-known television reporters as Barbara Walters, Diane Sawyer, Tom Brokaw, Dan Rather and others-and now wants to ‘choose among’ them the one least likely to ‘exploit’ an interview of Mr. McVeigh, ‘brow-beat’ the defendant, or ask Mr. McVeigh questions ‘he cannot answer.’… Mr. McVeigh also has ‘interviewed’ representatives of major national newspapers, and now wants to choose among them as well…. And he wants to make a similar selection from among local television and newspaper reporters."

But the motion should be granted. (Indeed, even the prosecution’s response, which exudes distaste for the motion, stops short of explicitly urging that it be denied.) Meanwhile, the media should spurn any conditions restricting what they can say about McVeigh before or after airing any interviews.

This spectacle raises two distinct questions, one of law and one of journalistic ethics:

Should courts allow McVeigh (who is in jail awaiting trial) and other accused monsters to give media interviews when their primary purpose is obviously to curry sympathy with the jury pool?