Author Archives

Stuart Taylor, Jr.

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Bribery vs. Politics

by Stuart Taylor, Jr.

Clintongate is getting so multifarious and confusing, it makes your head hurt. Just when you think you’re getting close to figuring out how a couple of political bozos at the White House got hold of confidential FBI files on big-shot Republicans like Jim Baker, Ken Duberstein, Tony Blankley-and more than 400 other people-a bunch of Republican senators across town dump a 769-page report detailing Whitewatergate, Madisongate, Thomasesgate, Nussbaumgate, Williamsgate, Ickesgate, and other subgates of Hillarygate. Then a bunch of Democratic senators dump a nearly 400-page report dismissing the Republicans’ 769 pages as a bunch of bull, to borrow from President Bill Clinton’s elegant rebuttal of allegations by one David Hale.

(Pop math quiz: If the probability that Hillary Rodham Clinton is telling the truth is charitably assumed to be 50-50 on Travelgate, and 50-50 on the belated appearance in her house of her subpoenaed billing records with her fingerprints on them, and 50-50 on her denial that she tried to hide documents in Vincent Foster’s office from investigators after his suicide, and 50-50 on her involvement in the allegedly fraudulent Castle Grande real estate deal, and 50-50 on how she made $100,000 on a $1,000 investment in the commodities market, then what is the probability that she is telling the truth on all five of these things?

Answer: One divided by the number of words in the next paragraph.)

Meanwhile, the Supreme Court is mulling whether to invoke the Constitution to help Clinton’s lawyers stall PaulaJonesgate past the election. And two more erstwhile Clinton banker buddies are on trial in Arkansas.

What’s a body to make of it all? Whom can we trust to give us the straight poop? Alfonse D’Amato-the guy who made $37,125 on a hot stock in a single day in 1993, thanks to special treatment from a brokerage firm? Hah!

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NewsHour: Stuart Taylor on Bruce Lindsey – June 19, 1996

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MARGARET WARNER: Bruce Lindsey is the deputy White House counsel and a longtime friend and adviser to President Clinton. He was the treasurer for then Governor Clinton’s 1990 reelection campaign. It is that association which interests prosecutors in the current Whitewater-related trial in Little Rock. We get more on this now from NewsHour regular Stuart Taylor, legal reporter for the American Lawyer and Legal Times. Stuart, before we get into this case, explain: what is an unindicted co-conspirator? In other words, in what cases would a prosecutor choose to name some unindicted co-conspirator rather than indict them?

STUART TAYLOR, The American Lawyer: The prosecutor is saying in essence in court–and they haven’t said it yet by the way–but they apparently will–that we believe this man was part of the criminal conspiracy, along with the people who are on trial. We haven’t indicted him but the relevance of that for the purposes of the trial is that lets them get in more evidence about the unindicted co-conspirator’s or the alleged unindicted co-conspirator’s out-of-court statements than they otherwise could. It’s a way around the hearsay rule.

MS. WARNER: Explain that just a little more. What do you mean?

MR. TAYLOR: For example, if they want to–somebody, one of their witnesses, to talk about what Bruce Lindsey said to him, ordinarily that would be barred by the so-called hearsay rule. You can’t talk –you can’t testify in a trial about what somebody else said out of court. That rule has a lot of exceptions. One of the exceptions is if the person who you’re trying to quote, here Bruce Lindsey, is named by the prosecution as an unindicted co-conspirator, then you can talk about what he said out of court.

MS. WARNER: I see. Okay. Now explain this case. What’s this case about?

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The Problem With Clarence Thomas

by Stuart Taylor, Jr.

"When I went to Yale Law School, they had reduced black admissions from 40 to 12. We were all there on our own merit. In subsequent years, that’s a fact that’s been clouded."

So said Justice Clarence Thomas in a May 7 speech at Texas Wesleyan University Law School, according to The Dallas Morning News. He also said that be takes offense when people say he’s a product of affirmative action, and that such policies did not exist when he attended a private Catholic school, college, and Yale Law School.

With all respect for Justice Thomas’ remarkable rise from adversity, these assertions are at odds with the historical record at Yale Law School, which used explicitly race-based preferences for blacks at the time of Thomas’ admission in 1971.

Another Thomas quotation, from his concurrence in Adarand Constructors Inc v. Peña (1995): "I believe that there is a ‘moral [and] constitutional equivalence’… between laws designed to subjugate a race and those that distribute benefits on the basis of race in older to foster some current notion of equality."

With all due regard for the sincerity of Thomas’ passionate opposition to race-based affirmative action, it borders on fanaticism to suggest that such preferences are just as bad as was the longstanding oppression of blacks through the apartheid regime of official segregation and Jim Crow laws.

The two statements quoted above exemplify what is (to me) most troubling about Justice Thomas: While his judicial opinions often contribute a valuable perspective on hard issues, and while he does a great service by preaching the values of self-reliance and hard work to students and others around the country, he often exudes the concede-nothing, bellicose absolutism of a seething ideological zealot.

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NewsHour: Stuart Taylor on Death Penalty Appeals – June 3, 1996

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CHARLAYNE HUNTER-GAULT: In April, President Clinton signed a bill into law that would limit access to federal court by prison inmates. The bill, known as the Anti-Terrorism and Effective Death Penalty Act, was in part a reaction by the President and Congress to the long delays in getting convicted felons executed. In order to speed up the process, the bill imposes strict time limits on Death Row inmates’ appeals. It also permits only one federal appeal of a state court conviction.

The case in front of the court today was brought by Ellis Wayne Felker, who was convicted and sentenced to death in 1983 for sodomizing and murdering a woman in Georgia. Felker’s lawyers based their appeals on the principle of habeas corpus, a provision that allows a person to test whether he is being held in prison legally. The Supreme Court turned down Felker’s appeal for a hearing three times, the last time just before the President signed the effective death penalty act. Felker’s lawyers filed a fourth appeal, and the Supreme Court this time agreed to hear his arguments. The court’s hearing of the Felker case is regarded as a test for whether the act President Clinton signed in April is constitutional.

JIM LEHRER: And now for more on today’s arguments, NewsHour regular Stuart Taylor, correspondent with the "American Lawyer" and "Legal Times." Stuart, welcome.

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

JIM LEHRER: What is the constitutional issue involved in this?

MR. TAYLOR: The issue as framed by the Supreme Court is whether this new law signed by the President is unconstitutional in that it restricts the jurisdiction of the Supreme Court to hear a certain class of these habeas corpus cases, and jurisdiction is power. So it goes to the relative power of Congress versus the Supreme Court.

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The Whitewater Endgame

by Stuart Taylor, Jr.

Independent Counsel Kenneth Starr has no evidence at this point that comes anywhere near warranting criminal prosecution of President Bill Clinton, as far as the public record discloses.

But suppose that Starr has a secret smoking gun, or comes up with one in the next few months. Suppose, for example, that lie succeeds in squeezing one or more of the three former Clinton associates convicted by a Little Rock jury on May 28-or the two others set for trial this month-into giving damning testimony against the president, corroborated by new documents.

What should Starr do then? Seek a grand jury indictment of Ike president? Send his evidence to the House Judiciary Committee for consideration of possible impeachment? Make if public and let the voters pass judgment? Or what?

And what should Starr do if tie thinks he has proof of a crime by Hillary Rodham Clinton? This is a more plausible scenario, given evidence like the 1993 memo by then White House official David Watkins contradicting the first lady’s swom statements that she bad no role in the White House travel office firings, and the belated appearance in her home of subpoenaed Rose Law Firm billing records bearing her fingerprints.

While such questions may seem premature, the fundamental purpose of the entire Starr enterprise is to look for any evidence that may implicate the president in a crime. So perhaps it’s time to start thinking about what Starr should do if he finds some.

The experience of the Watergate era offers some perspective.

In 1973, no less a conservative Republican luminary than then Solicitor General Robert Boric filed a brief arguing that the Constitution bars any criminal indictment of a sitting president, and makes the impeachment process the only remedy for presidential criminality. (He immediate purpose of the brief was to reject Vice President Spiro Agnew’s claim that the Constitution shielded htm, too.)

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Twisting and Turning on Gay Rights

by Stuart Taylor, Jr.

The Supreme Court’s big gay rights decision on May 20 is at once immensely inspiring and intensely troubling.

The inspiring thing about Romer v. Evans is the Court’s overdue embrace of simple justice for gay people, through fee majority’s assertion that states "cannot make them unequal to everyone else" or "deem a class of persons a stranger to its laws."

If the courts build on this foundation with wisdom and restraint, and if the nation receives it with respect, Romer may foster social tolerance as well as legal equality. It does not necessarily portend a line of decisions that will run roughshod over the free-association fights of people who are offended by (or simply uncomfortable with) homosexuality, nor will it push Heather Has Two Mommies into public school curricula.

The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy’s majority opinion are surrounded by such crude, superficial, and evasive legal reasoning- along with slurs tarring the voters of Colorado as bigots-as to lend credence to the dissenters’ complaint that this is "an act, not of judicial judgment, but of political will."

The risk is that the glaring flaws in me majority opinion-compounded by the distortions that pervade Justice Antonin Scalia’s elegantly vitriolic dissent- might help spur a backlash akin to the one that followed Roe v. Wade, an equally weak attempt at judicial reasoning. This could damage the Court’s moral authority and even, in the long run, set back the cause of gay rights.

We won’t know for a decade or so, until the effects have rippled through our law and culture, whether the good in this decision will eclipse the bad.

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NewsHour: Supreme Court on Gay Rights – May 20, 1996

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MARGARET WARNER: Today’s most notable rulings came in two very different cases. The first struck down a Colorado constitutional amendment that forbid any city or the state from adopting laws or ordinances to protect homosexuals from discrimination. The second struck down a $2 million punitive damages award won by an Alabama doctor unhappy with the paint job on his new BMW. For more on today’s decisions, we’re joined by NewsHour regular Stuart Taylor, a correspondent with The American Lawyer and Legal Times. Stuart, start by telling us what exactly did this Colorado constitutional amendment say and how did it end up in the state constitution?

STUART TAYLOR, The American Lawyer: The amendment wiped out several local ordinances that towns in Colorado — Aspen, Denver, and Boulder — had adopted protecting gays against discrimination and further said that from here on no town in the state itself cannot adopt any gay rights ordinances protecting gays against discrimination or giving them preferences. That is what the Colorado voters adopted by referendum in 1992.

MARGARET WARNER: And so in striking down this amendment, what was the reasoning of the majority of the Supreme Court?

MR. TAYLOR: The court ruled 6-3 that it violates the equal protection cause of the 14th Amendment by denying equal protection of the laws to homosexuals. It stressed that this is a very broad and undifferentiated disability applied on homosexuals across the board, that they cannot seek the protection of the laws in the ordinary way for any form of discrimination against them as homosexuals.

MARGARET WARNER: So just to be clear here, they weren’t upholding a specific gay-rights law; rather, they were simply saying gays could not be precluded from seeking such laws.

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NewsHour: Supreme Court Review – May 13, 1996

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CHARLAYNE HUNTER-GAULT: It was an also all-over-the-lot day for the high court as they handed down opinions in a series of controversial cases. In a unanimous decision, the court struck down the Rhode Island ban on liquor advertising aimed at promoting sobriety. Also, in an eight to one decision, the court ruled against five black defendants on the issue of racial disparity in a California crack cocaine case, and finally the court refused to review Unabomber suspect Theodore Kaczinsky’s appeal for fast action to avoid prosecution. For more on these cases, we turn to NewsHour regular Stuart Taylor, a correspondent for the "American Lawyer" and "Legal Times." Stuart, thank you for coming tonight. Tell us first about the 44 Liquor Mart vs. Rhode Island case. What was it all about?

STUART TAYLOR, The American Lawyer: Rhode Island had a law that bans all price advertising of liquor, except in the store itself. You can’t advertise in a newspaper, on a billboard, for an example, and the issue in the Supreme Court was whether that violates the First Amendment, freedom of speech, and the court was unanimous in holding that it did, although it took them four separate opinions in order to explain all the differences in their analysis, and that confuses the process of figuring out what this means for other laws and future laws and for such matters as the Clinton administration’s proposed limits on cigarette advertising, for example.

CHARLAYNE HUNTER-GAULT: So what are you saying, that this is not dispositive in terms of that–in terms of the cigarette advertising?

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NewsHour: Supreme Court review – May 13, 1996

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CHARLAYNE HUNTER-GAULT: It was an also all-over-the-lot day for the high court as they handed down opinions in a series of controversial cases. In a unanimous decision, the court struck down the Rhode Island ban on liquor advertising aimed at promoting sobriety. Also, in an eight to one decision, the court ruled against five black defendants on the issue of racial disparity in a California crack cocaine case, and finally the court refused to review Unabomber suspect Theodore Kaczinsky’s appeal for fast action to avoid prosecution. For more on these cases, we turn to NewsHour regular Stuart Taylor, a correspondent for the "American Lawyer" and "Legal Times." Stuart, thank you for coming tonight. Tell us first about the 44 Liquor Mart vs. Rhode Island case. What was it all about?

STUART TAYLOR, The American Lawyer: Rhode Island had a law that bans all price advertising of liquor, except in the store itself. You can’t advertise in a newspaper, on a billboard, for an example, and the issue in the Supreme Court was whether that violates the First Amendment, freedom of speech, and the court was unanimous in holding that it did, although it took them four separate opinions in order to explain all the differences in their analysis, and that confuses the process of figuring out what this means for other laws and future laws and for such matters as the Clinton administration’s proposed limits on cigarette advertising, for example.

CHARLAYNE HUNTER-GAULT: So what are you saying, that this is not dispositive in terms of that–in terms of the cigarette advertising?

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Affirmative Action and Doublespeak

by Stuart Taylor, Jr.

Guess who said this:

It is simply wrong to give one applicant an automatic advantage over another applicant, based solely upon the color of one’s skin. It was wrong 50 years ago, and it is wrong today…. Admissions decisions should not be based upon race or ethnicity. Such decisions should be based upon individual merit, individual qualifications and individual preparedness.

If you picked Antonin Scalia or Clarence Thomas or Bob Dole or some other anti-affirmative action advocate of the Constitution-is-colorblind school, go to the back of the class.

No, the quote is from the second paragraph of an April 29 press release put out by Texas Attorney General Dan Morales, announcing his petition for Supreme Court review in Texas v. Hopwood. That’s the big affirmative action case-perhaps the biggest ever-in which the U.S. Court of Appeals for the 5th Circuit barred consideration of race in admissions at the University of Texas Law School.

The central thrust of Morales’ petition for certiorari is that the state should be allowed to continue using preferences (although not "quotas"), based upon race or ethnicity, to admit black and Hispanic applicants ahead of whites with far better grades, test scores, and other nonracial qualifications.

The petition, prepared for Morales by Harvard Law Professor Laurence Tribe, contains powerful constitutional arguments that may ultimately be persuasive. But the result it seeks is virtually the opposite of that suggested by the press release.

The press release slyly slips some of the cat out of the bag in its fifth paragraph, which says that "race should be allowed to be considered as only one of a multitude of personal factors." But the dominant message is (in the words of the first paragraph) that "race-based policies must be eliminated."