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Stuart Taylor, Jr.

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Pandering for President

by Stuart Taylor, Jr.

Now that the conventions are over, it’s time to ponder which of the major-party candidates has taken the lead in proposing the worst ideas affecting the legal system and civil liberties.

Both President Bill Clinton and challenger Bob Dole have gone to great lengths to pander to various voter groups in this area.

BAD CLINTON IDEAS

• Banning gun sales to persons with records of domestic violence or abuse.

This is typical of the many tiny initiatives with which Clinton has salted his campaign to target carefully selected groups-especially feminists and other women.

This particular proposal trivializes gun control because it would have so little impact on domestic violence, which typically involves beatings and stabbings, not shootings. It makes little more sense than, say, barring spouse-abusers from buying beer or kitchen knives. If the president has no more muscular ideas than this for curbing gun violence, he can’t be very serious.

• Reflexive opposition to all efforts to curb excessive litigation.

While the costs and benefits of various litigation reforms arc debatable, and while some Republican proposals go too far, President Clinton and his party are so dependent on trial-lawyer money that they fight every proposal to attack the problem of was and abusive litigation.

The president opposed both a well-balanced bill (which Congress enacted over his veto) to curb those securities class actions in which the prime movers and beneficiaries are contingent-fee lawyers and, more recently, a modest tort reform bill quite similar to one that Clinton had endorsed in the 1980s.

• Stripping protections from defendants.

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The Norplant Option

by Stuart Taylor, Jr

Slate.com

Now that Congress and President Clinton have opted to use the threat of utter destitution to dissuade poor teen-agers and women from having children on the public dole, it’s time to revive a more humane, and perhaps more effective, proposal with the same objective.

This idea surfaced briefly and spectacularly in 1990, when the Philadelphia Inquirer suggested in an editorial that perhaps some welfare mothers should be “offered an increased benefit” if they would agree to practice effective birth control–specifically, to use the then-new Norplant contraceptive, which prevents pregnancy for five years after being implanted under the skin of the upper arm.

An uproar followed. The editorial writers–who had insensitively suggested a desire to reduce births of poor black babies in particular–were savaged by many Inquirer staffers and others as racist advocates of eugenics, even of “genocide.” They also caught it from some abortion-rights zealots, who are suspicious of any government efforts to influence reproductive choices, and from conservatives, who think the only proper way to discourage teen pregnancy is to preach abstinence. The newspaper abjectly apologized for a “misguided and wrongheaded editorial opinion.” And ever since, the whole subject has been taboo.

But it’s still a good idea, for poor girls and women themselves, and for the rest of us. Millions of babies are being born to poor teen-agers so lacking in elementary skills, work habits, and self-discipline that they are unlikely to be either responsible parents or self-supporting providers. Many of these babies grow up in squalor and themselves become dependent denizens of the welfare culture.

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Give Norplant A Chance

by Stuart Taylor, Jr.

Now that Congress and President Bill Clinton have opted to use the threat of utter destitution to dissuade poor teen-agers and women from having children on the public dole, it’s time to revive a far more humane, and perhaps more effective, proposal with the same objective.

This idea surfaced briefly and spectacularly in 1990, when the Philadelphia Inquirer suggested in an editorial that perhaps some welfare mothers should be "offered an increased benefit" if they would agree to produce effective birth control-specifically, to use the then new Norplant contraceptive, which prevents pregnancy for five years after being implanted under the skin of the upper arm.

An uproar followed. The editorial writers-who had insensitively suggested a desire to reduce births of poor black babies in particular-were savaged by many Inquirer staffers and others as racist advocates of eugenics, even of "genocide." They also caught it from some abortion rights zealots-who bridle at any suggestion that the government should seek to influence anybody’s reproductive choices by means more potent than education and contraceptive giveaways-and from conservatives- who think the only proper way to discourage teen pregnancy is to preach abstinence.

Amid national publicity, the newspaper abjectly apologized 11 days later for having printed a "misguided and wrongheaded editorial opinion."

And ever since, the whole subject has been taboo, at least in the mainstream press. Although some slate and local officials, including former Gov. William Donald Schaefer of Maryland, have proposed various Norplant incentives, few if any on the national scene have dared mention the words welfare and Norplant in the same sentence at least in combination with incentive.

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A Constitutional Suicide Pact?

by Stuart Taylor, Jr.

"Defendants concede, for purposes of this [summary judgment] motion, and for no other purposes, that … in publishing, marketing, advertising and distributing Hit Man and Silencers, defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."

So stipulated Paladin Enterprises Inc., publisher of a book (Hit Man) that was used by a real hired killer, James Perry, to plan and execute three murders in Silver Spring, Md. Subtitled A Technical Manual for Independent Contractors, the book describes itself as "an instruction book on murder."

None of this has stopped media groups and free speech advocates-including the National Association of Broadcasters, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists-from rushing to the defense of Paladin’s First Amendment right to publish its murder manual with impunity.

While Perry sits on death row, these groups have joined in an amicus brief seeking summary judgment for Paladin and its owner, Peder Lund, in damage suits brought by survivors of the three victims. In March 1993, Perry shot Mildred Horn and her son’s nurse, Janice Saunders, three times each in the eyes (as advised by Hit Man); he smothered Horn’s quadriplegic eight-year-old son, Trevor, and pulled his breathing tube. The killer, who followed some 20 tips from Hit Man, was hired by the boy’s father, Lawrence Horn, who had hoped to inherit $1.7 million that his son had received in a malpractice settlement.

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Campaigning for the Bench

by Stuart Taylor, Jr.

If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit, running for a seal on the Georgia Court of Appeals Judge Gary Andrews, went on the attack with the first negative statewide television advertising campaign even seen in a Georgia judicial election.

Merrit’s 30-second ad assailed Judge Andrews for using "a technicality in 1991 to reverse me conviction of a man who had confessed to molesting his own four-year-old son. The ad stows Merritt saying: "People who commit aims against innocent children should be convicted and serve their entire sentences. Isn’t it time our judges protected us from criminals instead of protecting criminals from justice?"

The state Judicial Qualifications Commission denounced Merritt’s ad, in a June 28 advisory opinion, as violating Canon 7 of the slate’s Code of Judicial conduct, which is binding on all candidates in judicial elections. The commission-which reports to the state supreme court-noted that it "unfortunately" had no power to impose a prior restraint on speech. But if warned that any lawyer-candidate using an ad like Merrill’s could fee subjected to judicial discipline if he won and to state bar discipline if he lost.

The commission faulted me ad for "fail[ing] to disclose that the decision [written by Andrews… was by a 7-2 majority of its court; that cases, especially those on appeal arc frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal"

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Ducking Hopwood: The Passive Virtues

by Stuart Taylor, Jr.

At first blush, it seemed an abdication of responsibility when the Supreme Court declined to review the 5th Circuit’s sweeping decision barring all consideration of race in admissions at the University of Texas School of Law.

The July I denial of certiorari in Texas u Hopwood sowed confusion-probably into the next millennium-as to the legality of racial preferences in admissions everywhere. It left institutions in different states subject to disparate interpretations of the Constitution.

State universities in most of the country will presumably feel free to continue using racial preferences, reasoning that the Court’s 1978 decision in Regents of the University of California v. Bakke remains the law of the land.

But those in Texas, Louisiana, and Mississippi are subject to the 5th Circuit’s broad directives in Hopwood that Bakke is no longer good law, that universities may not consider race, and that any who do so risk punitive damage awards to rejected white applicants.

(While the 5th Circuit did say that preferences could theoretically be used to remedy an institution’s recent history of proven discrimination against minorities, no university appears to have such a recent history.)

Justice Ruth Bader Ginsburg’s one-page explanation for her vote to deny certiorari, joined by Justice David Souter, was less than convincing.

Ginsburg noted that Texas no longer defended the crude, quota-like admissions process that the law school had used in 1992 (when the case was filed), and that the record shed little light on the operation of the school’s current regime of racial preferences.

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One Cheer for the VMI Decision

by Stuart Taylor, Jr.

The Supreme Court probably reached the right result in its 7-1 decision striking down all-male education at the Virginia Military Institute, given the state’s failure to offer any genuinely equal opportunity to women.

But even so, the broad sweep of Justice Ruth Bader Ginsburg’s June 26 majority opinion in United States v. Virginia could end up doing more harm than good. The Ginsburg opinion contains some powerful and persuasive reasoning. But it unwisely and unnecessarily leaves a cloud over all single-sex education, especially in public institutions; it raises too high the constitutional barrier against sex-based governmental distinctions, at a time when sex discrimination by government is simply not a very serious problem; it flirts obliquely with the unprincipled double standard sought by many feminists, who want sex-based programs for females only; and it reads a bit too much like a symbolic affirmation of triumphant feminist ideology rather than a sober exercise in constitutional law.

Most of these points are well made in Justice Antonin Scalia’s dissent, which unfortunately undermines its own credibility by featuring wildly hyperbolic claims that the decision "shuts down" VMI and will "destroy" the place.

Hyperbole aside, Scalia may well be right- although I hope he’s wrong-in asserting that the Court’s rationale "ensures that single-sex public education is dead."

This prospect is especially troubling at a time when many educational experts and some feminists are citing powerful evidence that single-sex education can benefit girls and boys alike, and when there is a crying need to encourage experimentation with alternatives to current educational orthodoxies.

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NewsHour: Supreme Court Rulings – June 28, 1996

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ELIZABETH FARNSWORTH: It was a busy day at the court. We get more on today’s rulings from NewsHour regular Stuart Taylor, correspondent with the "American Lawyer" and "Legal Times." Welcome, Stuart.

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

ELIZABETH FARNSWORTH: We have four cases to deal with in three broad areas. Let’s start with cable TV and indecency. What did the court rule?

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NewsHour: Supreme Court Decision on Women at VMI – June 26, 1996

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MARGARET WARNER: Tonight we examine two of the day’s high court rulings. The first involves the all-male Virginia Military Institute. On a seven to one decision, the court ruled that the state of Virginia may no longer exclude women from admission to VMI. We get more on that from NewsHour regular Stuart Taylor, correspondent for the "American Lawyer" and "Legal Times." Welcome, Stuart. What was the basic–what was the basis for the court’s ruling in this case?

STUART TAYLOR, The American Lawyer: The court ruled that it violates the equal protection guarantee of the 14th Amendment for VMI–for the state of Virginia, I should say, to deny to women what it called the unique and extraordinary benefits that men get from attending Virginia Military Institute, a 150-year-old institution with a unique prestigious role in Virginia life.

MS. WARNER: And what was the majority’s reasoning in coming to this, the majority opinion written by, I gather, Justice Ginsberg?

MR. TAYLOR: Justice Ruth Bader Ginsberg, who was a crusader for equal rights for women before she came on the court, basically reasoned that women should have all the opportunities men do in Virginia and elsewhere unless there’s what she called an exceedingly persuasive justification why they should not. She reviewed all the justifications Virginia had advanced for keeping VMI all male and rejected them. In particular, she said there are some women who could benefit from a VMI type education, which is sort of a boot camp style approach to education. Even if there aren’t many, there are some, and they should have that opportunity. She also rejected the state’s argument that it would destroy the boot camp style approach VMI uses to admit women.

MS. WARNER: And so VMI, of course, had tried to start a separate program for women at a nearby women’s college. What did the court say about that?

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NewsHour: Supreme Court on Double Jeopardy – June 24, 1996

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CHARLES ARLT, Defendant: They took everything we had. We didn’t hide a dime, every transaction was done by the law.

JAMES WREN, Defendant: The government took vehicles, automobiles, and they took aircraft, they took–

MR. KAYE: After the men were indicted on criminal charges, the government filed a civil forfeiture suit in order to confiscate their property. Wren’s lawyer, Shawn Perez, says the government punished the men twice for the same crime. That was double jeopardy, says Perez, a violation of the Constitution’s Fifth Amendment. The Ninth Circuit Court of Appeals agreed.

SHAWN PEREZ, Lawyer: I see nothing wrong with punishing a person once, and the Constitution says, yes, we can punish you once, but we cannot punish you twice for the same offense in two separate proceedings. Arlt and Wren were punished twice by the forfeiture of their property. After they had already been prosecuted and convicted and sentenced to life imprisonment, the government came back and said, we’re taking everything you own–resulted in a second punishment.