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Stuart Taylor, Jr.

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Drawing The Line On Racial Gerrymanders

by Stuart Taylor, Jr.

When is race-based electoral districting required by the Voting Rights Act? When is it prohibited by the 14th Amendment? The law in this area is whatever justice Sandra Day O’Connor says it is. Her pivotal role was recently underscored by her brief but controlling concurrence in

Miller v. Georgia, 63 U.S.L.W. 4726 (June 29, 1995), the 5-4 decision striking down one of that state’s three majority-black congressional districts as unconstitutional.

Justice O’Connor’s handiwork is a jurisprudential mess-a confusing and indeterminate mélange of apparently conflicting statutory and constitutional doctrines, which provides little useful guidance to lower courts and amounts to a formula for endless litigation and political chaos.

Some of this confusion may be unavoidable. That’s because O’Connor-almost alone on the Supreme Court-seems to be struggling to steer a middle course between the Scylla of racial Balkanization and the Charybdis of black disempowerment. Her search for a necessarily indeterminate middle ground-albeit flawed in the execution by undue vagueness-seems the least flawed approach to a devilishly difficult group of issues.

Consider the alternatives: To O’Connor’s right, Justices Antonin Scalia and Clarence Thomas, with the substantial agreement of Justice Anthony Kennedy and Chief Justice William Rehnquist, are pushing a "colorblind Constitution" theory that could wipe out most majority-minority districts (and thus bring back all-white congressional delegations in many Southern states), that would demolish key provisions of the 1982 amendments to the Voting Rights Act, and that makes a mockery of the Scalia-Thomas professions of fealty to judicial restraint and to the original meaning of the Constitution.

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Flunking the Honesty Test on Preference

by Stuart Taylor, Jr.

There is much To be said on both sides of the affirmative action debate. But one of the most troubling things about that debate has long been the fundamental dishonesty-or, at best, obfuscation-resorted to by many advocates of racial and sexual preferences.

President Bill Clinton’s long-awaited July 19 speech on affirmative action is a case in point. Through sly semantic sleight of hand, the president sought systematically to deny or obscure what every honest student of affirmative action preferences knows: In a great many (and perhaps most) cases, such preferences discriminate on the basis of race or sex against whites or males, in favor of minorities or women who are no better-and often demonstrably less-qualified in terms of relevant skills and experience.

To illustrate, it’s worth deconstructing one sentence from the president’s speech in some detail: "There are people who honestly believe that affirmative action always amounts to group preferences over individual merit; that affirmative action always leads to reverse discrimination; that ultimately, therefore, it demeans those who benefit from it and discriminates against those who are not helped by it."

The president went on to say that such criticisms were wrong. He was correct in a narrow literal sense, but only because somebody stuck the word "always" into his speech text to save the quoted assertion from logical indefensibility.

Clinton’s clear purpose here, however, was not to make the trivial claim that affirmative action does not always involve elevating "group preferences over individual merit" or "discriminat[ion] against those who are not helped": It was to imply that such phenomena are relatively rare and abusive exceptions, not the rule.

If words are to be given their ordinary meanings, the president’s implication was false, almost by definition.

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Rethinking the Fifth Amendment (Again)

by Stuart Taylor, Jr.

When Timothy McVeigh was charged in April with the Oklahoma City bombing, something very revealing happened. McVeigh said nothing. He did not say, "I had nothing to do with it." He did not say, "You’ve got the wrong guy." In fact, he has never, to this date, said anything like that.

McVeigh’s nondenial is highly probative-indeed, it is what most convinces me of his probable guilt. But the jury at his trial will never be told about it.

Why not?

And if McVeigh fails to take the stand at trial to assert his innocence or explain where he was and what he was doing at the time of the murders with which he is charged, the prosecutor will be barred from commenting on his silence, and the jury will be instructed that no inference of guilt can be drawn.

Why not?

The answer, of course, is the Fifth Amendment provision that "[n]o person … shall be compelled in any criminal case to be a witness against himself," as it has been construed by the Supreme Court.

The constitutional language clearly gives every criminal defendant the right to remain silent at trial. The Warren Court and its predecessors, going back to 1886, extended the privilege to (among other things) pretrial proceedings and police station interrogations; stretched the meaning of the word "compelled" in the Fifth Amendment to require the familiar Miranda warnings and to bar prosecutors from making reference either to a defendant’s silence after arrest or to his or her failure to testify at trial; and mandated exclusion from evidence both of "compelled" pretrial statements and of any physical or other evidence (such as the location of a murder weapon or the names of witnesses) derived from such statements.

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An Old-Fashioned Conservative

by Stuart Taylor, Jr.

The salutary tradition of showing respect for the dead has temporarily overshadowed the less-than-flattering image that Warren Burger had among Washington lawyers and journalists, especially those steeped in the liberal-leaning culture of the law schools and the media during his 17 years as chief justice of the United States.

We were told by our professors and our newspapers that Burger was Richard Nixon’s judicial hatchet man, bent on rolling back the noble works of the Warren Court. We read in The Brethren that his brethren (and their clerks) mocked his pompous self-importance, resented his manipulative assignments of opinions, and disdained his middling intellect and pedestrian craftsmanship.

We groaned at his stuffily self-righteous speeches about the indignities visited on the legal profession by lawyer advertising, by cameras in courts, and by death row defense lawyers-whom he faulted for doing what any good lawyer in their position would do. We made fun of his more awkward judicial opinions. We tittered when he knocked the television camera out of the hand of a newsman who had pursued him into an elevator.

Across the ideological spectrum, conservative true believers came to think of Burger as an undependable compromiser more attuned to conventional wisdom and public opinion than to conservative principle.

There’s much truth in all this, and in the image of Burger as the chief justice from central casting, with a majestic white mane camouflaging a mediocre mind. But there were also some traits to admire in this sturdy, hard-working, fundamentally decent man.

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Crawling All Over the Presidency

by Stuart Taylor, Jr.

If the Clinton administration has accomplished nothing else, it has at least sensitized Democrats- with a vengeance-to the dangers of the system of court-appointed independent counsel that they used for so long to harry Republican presidents.

President Bill Clinton, and his wife, and his closest White House aide (Bruce Lindsey), and Commerce Secretary Ronald Brown, and Housing and Urban Development Secretary Henry Cisneros, and former Agriculture Secretary Mike Espy, and others now are (or are about to be) squirming under microscopic scrutiny by independent counsel. And suddenly, onetime champions of the statute that mandates such investigations, like Clinton and White House Counsel Abner Mikva, are sounding more like critics.

It’s easy to make fun of the hey-those-are-our-oxen-being-gored timing of such Democratic misgivings, and I’ve done so. But "|w]isdom too often never comes, and so one ought not to reject it merely because it comes late," in the words of Justice Felix Frankfurter.

And the Clintonites’ current travails provide perspective- especially for those of us whose hearts did not bleed for the likes of Oliver North and Michael Deaver-on the risk that the current independent counsel regime will have a debilitating effect on the presidency for many years to come.

Governments are not, and never have been, run by paragons of ethical purity. After all, just about every elected official in Washington, and many a Cabinet officer, owes his or her position in large part to success at the legalized corruption of wheedling campaign contributions from special interests seeking political payoffs. It’s a dirty business, but somebody has to do it. And some people steeped in sleaze have done it rather well. Like the first Mayor Richard Daley of Chicago. And like Ron Brown.

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The Court Is Not a Right-Wing Nut

by Stuart Taylor, Jr.

Something about the timing of United States v. Lopez-"just a week after a bomb exploded in Oklahoma, killing more than 100 people," as reporter Nina Totenberg put it on National Public Radio-struck a lot of us (at least at first) as a bit much.

Here was the Supreme Court of the United States sending paroxysms of joy through the states-righters and the gun-lovers by holding (on April 26) that Congress had unconstitutionally exceeded its power to regulate interstate commerce, and had thus usurped the powers of the states, when it banned possession of guns within 1,000 feet of a school.

Here, in other words, was a 5-4 gift from the Court’s conservative bloc to the folks who listen to Justice Clarence Thomas’ buddy. Rush Limbaugh, who gives aid and comfort to fellow radio talk-showman G. Gordon Liddy, who, in turn, broadcasts pointers on how to kill (in self-defense, of course) federal law enforcement officials, like the ones who were targeted by the bombers and others on the right-wing lunatic fringe.

Perhaps these atmospherics-plus the fact that this was the first Court decision since 1935 striking down an act of Congress as exceeding its commerce power-were part of what inspired Yale Law Professor Bruce Ackerman to tell Totenberg that "this could well be one of the opening cannonades in the coming constitutional revolution." And Hofstra Law Professor Leon Friedman to assert that the Court’s holding that Congress may use its commerce power only to regulate activities affecting commerce "is an astonishing requirement to lay on Congress." And a giddy conservative, Professor Douglas Kmiec of Notre Dame Law School, to proclaim Lopez "the most important case in a half-century."

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Courage, Cowardice on Drug Sentencing

by Stuart Taylor, Jr.

This is a story about how the U.S. Sentencing Commission finally did something wise and courageous, only to have its legs chopped off by Attorney General Janet Reno and Assistant Attorney General Jo Ann Harris.

First, some background:

A seller of powder cocaine gets a federal mandatory minimum sentence of five years only if caught with more than 500 grams.

But a first-time seller (or even a simple possessor) of crack cocaine gets the same five-year sentence if caught with just five grams-about one-sixth of an ounce.

And lots of small-time crack users, sellers supporting their habits, couriers, lookouts, minor accomplices, girlfriends, and other bit players-many of whom have no record of violence, and might be salvaged by short-term, shock incarceration and by drug treatment-are currently serving five-year sentences.

Lots more such people have been slammed with 10-year mandatory minimums for getting caught with 50 grams (less than two ounces) of crack. That’s one one-hundredth of the amount of powder cocaine (5,000 grams) that would bring the same sentence.

This 100-1 quantity ratio is especially absurd in light of the fact that powder cocaine can easily be converted into crack by cooking it up with a bit of baking soda and water. It is perhaps the most irrational aspect of the grotesquely unfair sentencing scheme-deplored by federal judges, including Reagan and Bush appointees, almost without exception-that Congress has ordained for drug offenders in statutes passed in 1986, 1988, and 1994.

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How Not (and How) to Drug-Test Out Kids

by Stuart Taylor, Jr.

Chief Justice William Rehnquist and Justice Ruth Bader Ginsburg offered two seductive rationales, at a March 28, 1995, oral argument in Veronia School District v Acton, for allowing public schools to require all students who want to play on school sports teams to submit to random testing of their urine for traces of illegal drugs.

Rehnquist’s point was that, at least for student athletes, being required to urinate, into a cup, on demand, with a school official watching and listening from behind, was not much of an invasion of privacy.

"How much privacy is there in a boys locker room, with a bunch of urinals lined up against the wall, and guys walking naked from the shower to the lockers?" Rehnquist asked Thomas Christ, an American Civil liberties Union lawyer representing the parents whose 12-year-old son, James Acton, had been kicked off his school’s football team in 1991. The boy’s offense was not drug use, or even suspected drug use, but rather refusing (with his parents) to consent to the drug testing required by the schools in his Oregon logging town.

Ginsburg’s point was that such random testing seemed more benign than the alternative-which would apparently be constitutional under the Court’s 1985 decision in New Jersey v. T.L O. -of singling out students to be tested for drug use, based on suspicion.

"Isn’t the risk [in a suspicion-based program] that the teacher is going to pick out the kid he doesn’t like?’ Ginsbuig asked. "I frankly would find it much more shameful," added Justice Antonin Scalia, "to be picked out and sent to have a drug test because I’m suspected of using drugs."

These are good points. And the evidence suggests both that student drug abuse is a very serious problem- in Veronia and across the nation-and that random urine testing may well be the most effective deterrent.

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Witch-Hunt or Whitewash? – Sidebar

by Stuart Taylor, Jr

The American Lawyer

The question of whether Rupert Murdoch’s Fox network and its lawyers have been candid with the FCC over the past decade about the facts relating to Fox’s claimed compliance with restrictions on foreign ownership turns in part on what one supposes the FCC needed to know. In particular, did it need to know that News Corp., an Australian company, would (and does) own over 99 percent of Fox’s equity?

While stressing that they have told the FCC everything, from day one, about News Corp.’s interest in Fox, Murdoch and his men have also contended that even if the FCC somehow lost sight of the fact that News Corp.’s equity interest was above 25 percent, it’s legally irrelevant anyway. But is it?

The primary purpose of the restrictions, which date back to the Radio Acts of 1912 and 1927 and took their current form in the Communications Act of 1934, was to protect national security, especially in wartime, in part by preventing interests that might spread foreign propaganda from exercising control over any U.S. broadcaster. But both the detailed statutory provisions and the FCC’s interpretations over the past ten years have imposed broad, prophylactic restraints even on some relatively passive forms of foreign investment, arguably including noncontrolling equity interests like News Corp.’s interest in Fox.

The provision at issue in the FCC’s pending investigation of Fox, section 310(b)(4) of the Communications Act, states: "No broadcast … station license shall be granted to or held by … any corporation directly or indirectly controlled by any other corporation of which any officer or more than one-fourth of the directors are aliens … [or] more than one-fourth of the capital stock is owned of record or voted by aliens … if the commission finds that the public interest will be served by the refusal or revocation of such license." (Emphasis added.)

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Witch-Hunt or Whitewash?

by Stuart Taylor, Jr

The American Lawyer

There are three ways of trying to make sense of the Federal Communications Commission’s much-publicized probe into whether Rupert Murdoch’s Fox television network gulled the FCC, for nearly nine years, into overlooking the fact that 99 percent of Fox’s equity was foreign-owned, possibly in violation of federal law:

(1) The multi-lawyered Murdoch team cleverly (or perhaps unwittingly) has hidden the ball since 1985 by stressing that Murdoch (who became a U.S. citizen in 1985) would control Fox – while burying, in the moral equivalent of fine print, and in documents filed at different times that were unlikely to be read with care, some fragmentary disclosures from which a careful reader would have inferred that most of Fox’s equity would be owned by Murdoch’s Australia-based News Corp.

(2) The FCC was really dumb – or so eager to help the politically connected Murdoch crack the ABC-CBS-NBC oligopoly that it averted its eyes from awkward details-when it found in 1985 that Fox’s proposed $1.6 billion purchase of six big-city television stations complied with a stature restricting foreign ownership or control of over 25 percent of any broadcaster.

(3) The FCC is being really dumb now – if not grinding Clintonite political axes against the archconservative Murdoch and his Clinton-bashing New York Post – by harassing Murdoch for no good reason, and thereby stalling, at a critical time, his Fox network’s remarkable push toward parity with ABC, CBS and NBC.

Murdoch, Fox, their current FCC lawyers at Washington’s Hogan & Hartson, and some others are pushing hypothesis three – a theory that also draws some credence from the FCC’s peculiar handling of this investigation. "All this is another way of [FCC staffers] saying, ‘If we screwed up, it must be because you misled us,’ " says a source familiar with the investigation.