A Betrayal of the Constitution

In a sad display of Democratic hypocrisy-only cosmetically offset by a smaller dose of the Republican variety-President Bill Clinton is about to trash one of the Constitution’s cardinal principles: its solemn reservation to Congress of the power "to declare war."

If this would-be imperial president fulfills his lawless (and foolish) vow to invade Haiti without first seeking a congressional vote of approval, he and his congressional accomplices will have administered a near-fatal blow to the framers’ carefully crafted restraints on the President’s war-making power.

Already weakened by decades of Cold War strangulation-most recently by Presidents Reagan and Bush-those restraints may not survive this betrayal by their supposed Democratic guardians. Senate Majority Leader George Mitchell of Maine, House Speaker Thomas Foley of Washington and many others have abdicated their constitutional responsibilities and bowed to Bill Clinton’s power grab.

The planned 20,000-troop invasion of Haiti would surpass recent Republican rapes of the Constitution in at least one sense: It would be the first time a president has launched an invasion without seeking congressional consent solely because he couldn’t get it. It will also apparently be the first time an invasion has been sped up to pre-empt Congress from voting to forbid it.

Worse still, the White House claims power to launch an invasion even if Congress does forbid it. Or, at least, so one anonymous official told The New York Times, " ‘Either the [congressional] leadership figures out a way not to have the vote, or we find some compromise, or we lose and go ahead with the invasion anyway.’ " Having thus posited a presidential predisposition to commit an impeachable offense, this official blandly added, " ‘Politically, there are no great options.’ ”

Blazing a Trail Out of the Voting-Rights Brawl

On June 28, 1993, in Shaw v. Reno, the Supreme Court held that it is presumptively unconstitutional (and too much like "political apartheid") for states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation-at least if the resulting shapes are "bizarre."

On June 30, 1994, in Johnson v. De Grandy, the Court suggested that the Voting Rights Act may often require states to manipulate voting-district lines for the purpose of moving black or Hispanic voters toward proportional representation.

What’s a state supposed to do? Comply with the Voting Rights Act by violating the Constitution? Comply with the Constitution by violating the Voting Rights Act?

Or try to thread the needle, by somehow divining what the Court will deem too "bizarre" a shape, and then designing districts to pass that test (barely), while coming as close as possible to creating majority-minority enclaves in numbers proportionate to the racial makeup of the relevant population?

As the law now stands, many states (and courts) are likely to choose the latter course. They will extract from the voting-rights jurisprudence of the Rehnquist Court a peculiar touchstone: Go for proportionality, but don’t be too bizarre about it.

This sorry (not to say bizarre) state of affairs is what happens when a badly splintered Court-with warring camps that seem to talk past one another rather than to seek common ground-confronts an issue that calls for statesmanlike accommodation of two conflicting imperatives.

The first imperative is that Congress has properly decreed that in places where racial bloc voting predominates, majority-black and majority-Hispanic districts must sometimes be created to protect these traditionally underrepresented groups from having their voting power negated or diluted by submergence in a sea of whites.

Too Many Clients

The American Lawyer

There is a Byzantine dance that goes on in this town," says Washington superlawyer Robert Bennett, "where the press is quick to crown you, and then they set about to tarnish the crown."

Bob Bennett-the chunky, scrappy, savvy, media-wise, onetime boys’ boxing champ; the tenacious trial lawyer with street-fighting instincts, and a lust for the limelight; the man who has honed his press-spinning talents while stalking the Keating Five on national television in 1990 and 1991, while massaging (and, some say, subtly threatening) the Bush White House to get former Defense secretary Caspar Weinberger a Christmas Eve pardon in 1992, while helping Clark Clifford and his protege Robert Altman beat state and federal prosecutions in 1993-has discovered the fickleness of the press.

Not to mention the hazards of falling out with a high-profile client-especially when the client is Congressman Dan Rostenkowski, who clearly has legitimate grievances.

This article will show that-at a minimum-Bennett inexcusably failed to consult adequately with the then chairman of the House Ways and Means Committee before taking on the representation of President Clinton in f the Paula Jones sexual harassment case. It also tells how Bennett’s representation of Clinton provoked tensions in the Rostenkowski camp, and raised concerns in the mind of the chief prosecutor. Bennett went on television to defend his new client, the president, at the most delicate stage in the Clinton Justice Department’s deliberations over whether to indict Rostenkowski. To outsiders, it looked like the president’s lawyer would now be lobbying the Justice Department on behalf of the congressman- who just happened to be a key ally in the administration’s push for comprehensive health insurance.

If O.J. Did It, Lock Him Up Forever

Americans have a lamentable tendency to be overly punitive toward relatively minor criminals, like small-time drug couriers, and overly indulgent toward moneyed murderers with psychobabble sob stories, like the parricidal Menendez brothers.

Will O.J. Simpson be a beneficiary of the latter tendency, opening a new celebrity chapter in the how-to-get-away-with-murder’book? Or might his case mark a salutary turn toward taking death seriously, by locking killers up for the rest of their natural lives?

It must be stipulated that not quite enough evidence has so far been disclosed (or tested by the rigors of trial) to be certain that Simpson wielded the knife that so savagely tore into his ex-wife and the male friend whose body fell next to hers. The presumption of innocence has its claims-even though I have trouble imagining why a man who thought that someone else had just killed the woman he loved would be acting the way Simpson has been acting. (Example: His self-regarding "suicide" note, which says that "if we had a problem, it’s because I loved her so much" and that "[a]t times I have felt like a battered husband or boyfriend.")

But if the evidence does prove that Simpson killed Nicole Brown Simpson and Ronald Goldman, he should spend the rest of his life’ behind bars. The law needs to teach people a lesson that it has not been teaching in recent decades: If you murder another human being, you will be put away forever. No excuses. No parole. Period.

(I’m against the death penalty, but that’s another column.)

Anything like a 10-years-for-manslaughter outcome in Simpson’s case would further entrench our law’s longstanding bad habit of trivializing the battery and murder of women by their husbands and lovers. It would also advance the pernicious new trend toward letting killers avoid serious punishment by combining appeals for sympathy with deterministic explanations of their criminal behavior.

Why Clinton Should Get Limited Immunity

"The entire presidency could turn on the occurrence of a trial like this" -White House Special Counsel Lloyd Cutler, May 24, on "The MacNeil/Lehrer NewsHour."

Wow. That really lets the cat out of the bag. This stuff about "temporal immunity" (as Cutler called it) is not, at bottom, about diverting President Bill Clinton from his weighty duties or wasting his time (although Cutler stressed that, too). It’s about muffling potentially ruinous publicity.

That’s why all the president’s lawyers are cooking up arguments for putting Paula Corbin Jones’ sexual-harassment lawsuit on ice for as long as seven years.

The president is worried that the American people will turn from him in disgust if they have their noses rubbed in the spectacle of Arkansas state troopers, who were the then-governor’s bodyguards, swearing that Clinton regularly sent them out to procure women and had them arrange and conceal his extramarital encounters.

Worse, Trooper Danny Lee Ferguson, Clinton’s co-defendant, has told reporters (and might testify) that the president telephoned him several times dangling possible federal jobs, perhaps in the hope of keeping him quiet, and that Clinton operatives pressured him not to tell the truth. (The White House denies this.)

Worse still would be the spectacle of the president undergoing cross-examination about whether he had ever had Ferguson bring Paula Jones to him in a hotel room (as Ferguson and Jones have both said), and if so, for what purpose. The president has said- through his private lawyer, Robert Bennett-that he "has no recollection of ever meeting this woman." Nobody I know believes that.

NewsHour: A look at Justice Blackmun’s Legacy – April 6, 1994

ROBERT MACNEIL: To assess Supreme Court Justice Blackmun’s legacy, we’re joined by four court watchers. Kathleen Sullivan is a professor of law at Stanford University. Charles Fried was solicitor general during the Reagan administration and now teaches at Harvard. Stuart Taylor covers the Supreme Court for American Lawyer Magazine and is a frequent court analyst for The NewsHour, and Harold Koh teaches law at Yale University. He also served as a law clerk for Justice Blackmun on the Supreme Court.

Stuart Taylor, besides the most famous Roe vs. Wade decision, what other decisions mark Justice Blackmun’s time on the court?

Sleazy In Seattle

Discovery is the bread and butter of most big-firm litigators. But the most important and ethically sensitive decisions the make-choosing when and how to avoid disclosing damming evidence to adversaries-are almost always veiled in secrecy. Now an anonymous whistle-blower in a case near Seattle has helped give as a revealing glimpse into how litigators reconcile their duties to be zealous advocates with their duties not to be whores. It’s not a pretty picture and it involves one of Seattle’s largest and most prestigious firms.

The covered-up corporate document that the whistle-blower leaked in March 1990 led to an agreement this January by Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp. to pay $325000 in sactions for discovery abuse, one of the largest such awards ever. By misleading its adversaries to avoid producing damning documents in its client’s files, Bogle provided a textbox example of the need for discovery reforms even more far-reaching than those that were adopted last year by the federal judiciary-reforms that are still under attack in Congress. (On which more below.)

What prompted the settlement was a unanimous Washington Supreme Court decision last September 16, and the prospect of an evidentiary hearing on remand that would have made Bogle’s conduct look even worse than it looks in the court’s sternly worded opinion.

The seven justices held that Bogle & Gates and its client, a British-owned pharmaceutical company with U.S. headquarters near Rochester, had used "misleading" discovery responses to hide two I "smoking gun documents" from lawyers for a 3-year-old girl who suffered permanent brain damage as a result of taking a i Fisons asthma drug in 1986, as well as from lawyers for the girl’s pediatrician, who had filed a cross-claim against Fisons.

Sanus Inc. Bets the Company on the Blame-the-Moms Defense

American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Tilton Coleman looked drained as he took his seat after an eloquent 90-minute closing. He had projected his usual cool confidence to the jury, in U.S. district court in Los Angeles. But his clients and partners, watching from Boston, San Francisco, Warsaw, Beijing, and Tokyo, could see what the jury could not. On the eight-foot screens in their conference rooms, Coleman’s youthful 42-year-old visage was etched with worry as he walked back to the counsel table.

It was not the first time he had stood up in court with the fate of Sanus Inc. hanging in the balance. But January 14, 2009, was the first time he had sat down thinking he was going to lose. As if to confirm his pessimism, the feedback window in the monitor on his table showed the plaintiffs heavily favored by the on-line focus group of interactive TV viewers who had watched the whole trial.

If the jury and the appellate courts saw it the same way, Coleman knew, it could deal a devastating blow to the $200-million-a-year embryo screening company: More than 300 children and their families already had claimed that the children’s mental and emotional problems had been "caused" by San us.

Most of the children suffer from obsessive-compulsive disorder (OCD), depression, or schizophrenia. Their lawyers blame these ills on the Sanus embryo screening process, under which couples use (mostly) their own sperm and eggs to create numerous pre-embryos in vitro, then choose which ones to implant in the woman’s uterus on the basis of tests identifying which embryos have detectable defect and disease genes, and which gave genes associated with purportedly positive traits – height, for example.

Euthanasia Puts Its Best Foot Forward

The American Lawyer

Editor’s Note: The people and events referred to in this story are fictitious. It was written in 1984 as part of a special issue imagining what the legal world might look like in 2009.

Lawrence Robbins had to stretch to find support in Supreme Court precedent., but he made the most of the facts in the Court’s second active-euthanasia case involving Alzheimer’s disease. The lawyer put the monkey on the justices’ backs at the February 4 argument in Madison v. California by implicitly floating this question:

What would you have done differently if you had found yourself in my client’s position?

Robbins seemed 10 have at least four votes leaning his way throughout – Chief Justice Kathleen Sullivan and Justices Ruth Bader Ginsburg, Jose Cabranes, and Webster Hubbell. California attorney general Jim Sutton and amicus Richard Taranto, representing the National Association of Attorneys General, got a friendly reception from Justice Antonin Scalia, Clarence Thomas, Frank Easterbrook, and J. Harvie Wilkinson III. That left Justice Sandra Day O’Connor once again seeming 10 relish her role as noncommittal swing Vote.

Robbins pitched his argument to O’Connor from the opening sentence: "Only this Court now stands between m;, 68-year-old client. Florence Madison, and 20 years in prison for committing Iwo deeply moral acts of love – acts very much like those hypothesized by the concurrence [of O’Connor, in 2006] in Jackson v. New York.

"Eight years ago, in 2001, my client did what she had to do to prevent her husband from blowing out his brains with a shotgun: She promised to spare him the kind of wretched, lingering death that he had watched his mother endure. In exchange for his agreement to forgo suicide, she promised to help him die with dignity if and when he had declined into such a state of living death that – by his own reckoning – he would have nothing left to live for.

What To Do With The Microsoft Monster

The American Lawyer

Bill Gates, the second-richest man in America, was working through his second round of visits this past summer at the Federal Trade Commission, a place as creaky and antiquated as Gates’s Microsoft Corporation is sleek and dynamic.

Gates had a potent lobbying team along: Microsoft’s chief in-house counsel, William Neukom; former FTC commissioner Patricia Bailey; and partners from New York’s Sullivan & Cromwell and from Preston Thor-grimson Shidler Gates & Ellis, the big Seattle-based firm where Gates’s father is a senior partner.

But in his visits to each of the four participating com¨missioners on two clammy July days, the 38- (then 37-) year-old Microsoft chairman did much of the talking himself. And at times he got a bit carried away-just as his company sometimes does in the heat of battle against competitors. Like when he barked, "You don’t know what you’re talking about," at an FTC official in a meet¨ing in the chairman’s office.

Or when Commissioner Dennis Yao, a soft-spoken former Wharton business school professor, floated a line of hypothetical questions suggesting possible curbs on Microsoft’s growing monopoly power, including disclo¨sure to competitors and the public of technical data about its dominant personal computer (PC) operating systems, MS-DOS and Windows.

Gates was vexed. "He started by calling Yao’s ideas socialistic," recalls a source familiar with the July 15 meeting, "and as he got angrier and angrier and louder and louder, he got into calling them Communistic."