Category Archives: Legal Times

Stuart Taylor, Jr.’s Legal Times media appearances.

Posted on

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!

Posted on

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.

Posted on

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.)

Posted on

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.

Posted on

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."

Posted on

Real Sexual Harassment

by Stuart Taylor, Jr.

Remember Graydon Snyder, the professor at Chicago Theological Seminary who got a sexual harassment reprimand for exploring the role of intent in sin by reciting a story from the Talmud about a man who falls off a roof, lands on a woman, and accidentally has intercourse with her?

Remember J. Donald Silva, the writing instructor at the University of New Hampshire who got a sexual harassment suspension for classroom use of sexual metaphors-like a famous belly dancer’s comparison of her craft to "Jell-O on a plate, with a vibrator under the plate"-that some female students found offensive? (Silva later won a judicial ruling that the suspension violated the First Amendment.)

Remember the student at Tufts University who was temporarily suspended for selling T-shirts inscribed with 15 reasons "Why Beer is Better than Women at Tufts"?

Such examples create a temptation in some quarters to dismiss reflexively claims of sexual harassment, and sex discrimination generally, as ideologically tinged whining over trifles by politically correct women whose actual agenda is censorship.

But now comes a timely reminder-from Normal, Ill.-of the real sexual harassment that stalks many women, especially blue-collar women breaking into traditionally male workplaces, who are often subjected to crude sexist vilification of a sort rarely experienced by pampered propagandists of PC paranoia who populate the professoriate.

Normal is home to the now infamous factory owned by Mitsubishi Motor Manufacturing of America Inc. The company was hit by the Equal Employment Opportunity Commission on April 9 with the largest sexual harassment suit in history, alleging rampant harassment of as many as 500 women at the plant since it opened in 1988.

Posted on

The Debate: Judge Bashing Redux

by Stuart Taylor, Jr.

We have collected all the presidential candidates’ statements about America’s recently discovered judge crisis, and fed them into a computer. The machine has peered six months into the future and projected some of the questions and answers in the Big Debate.

Q: I’d like to ask how each of you would change the federal judiciary. And Senator Dole, please explain whether you are here tonight as the Bob Dole who voted to confirm 98 percent of President Clinton’s judges, or the one who blames them for the crime problem and "the crisis in our courts."

Sen. Bob Dole: Bob Dole is here as the Bob Dole who lets Bob Dole be Bob Dole. And when Bob Dole is president, there will be no more liberal judges. No more moderates, either. Only Bob Dole judges-you know, here a Dole, there a Dole, everywhere a Dole Dole. No cowardly, craven, crime-coddling judges. No Democrat judges.

Bob Dole’s judges will be so tough,we won’t be able to build gas chambers and electric chairs and gallows and firing squads and lethal-injection get-ups fast enough. We’ll have to bring in Dr. Kevorkian to move things along.Bob Dole’s judges will pack guns under their robes and wear NRA membership cards like badges of honor.

President Bill Clinton: Me, too. Toughness and diversity, that’s what we want. But my judges will be tougher, and more vigorous and youthful too, and more supportive of Medicare and the minimum wage. And the problem is the Republicans not supporting these things, or our police, and not putting more cops on the beat-cops who can kill the criminals before they ever get to court, and I love it when they do that, I just want to hug them all.

Posted on

Life, Death, and Imperial Judges

by Stuart Taylor, Jr.

As I started to read the recent rulings of two U.S. Courts of Appeals discovering that terminally ill patients have a constitutional right to kill themselves with lethal drugs prescribed by any willing physician, I was reminded of Judge Learned Hand’s line about "Platonic Guardians."

I looked it up: "Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies," Hand wrote in 1958. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Some of the nation’s best minds think that a legal rule authorizing physician-assisted suicide "erases a fundamental ethical line and opens medical practice to unconscionable abuse," in the words of the columnist (and lapsed psychiatrist) Charles Krauthammer. He adds that any such rule would open the way for intolerable pressure from self-interested relatives and others for "the elderly and infirm to take drugs to hasten death."

On the other side, some of the nation’s best minds stress that thousands of suffering patients desperately want and need the kind of help in hastening the end that-under current law-some doctors cannot provide, and others will provide only in secrecy, for fear of being prosecuted as criminals.

It is an agonizing public policy dilemma, and one of vast importance. Both elite and popular values on the subject are evolving at warp speed, as one ethical line in the sand after another is washed away by racing medical technology and soaring medical costs, and as ever more diabolical choices are inflicted on us all.

So why should the ultimate decision on this matter come from a bunch of judges, in the guise of divining some fixed meaning for all time from a 128-year-old amendment that has nothing explicit to say about any "right to die"?

Posted on

Brother, Can You Spare Some Fees?

by Stuart Taylor, Jr.

Whitewater may not be Watergate, but the Clinton White House has apparently surpassed even the Nixon White House in generating billable hours for the Washington white-collar defense bar.

At last count, nearly 40 current and former officials of the Clinton White House alone have found it necessary to retain counsel. The Clintons and at least one senior aide have also created the first legal defense funds in history for incumbent executive branch officials-an unfortunate precedent, but perhaps a necessary one.

The legal travails of the Clintonites, and of some Reaganites before them, raise a long-term problem that Congress needs to solve, lest it plague future administrations, too.

In the words of Alan Morrison of Public Citizen Litigation Group, "Some provision must be made so that vulnerable public officials not be left without means to defend themselves and that they not have to beg for money from those who appear before them or who otherwise are affected by their official actions."

The essential problem is that anyone taking a senior governmental position these days, especially in the White House, may end up in need of legal counsel no matter how honorably she conducts herself.

That wasn’t true 20 years ago. It’s a consequence of our current culture of hair-trigger resort to criminal investigations as the ultimate weapon in partisan warfare, and of the vast resources available to independent counsel to turn over every rock in search of evidence of crime. Government service, at least in the White House, now carries a significant risk of being hauled before congressional committees and grand juries, grilled under oath, and perhaps even accused of perjury or other crimes.

Posted on

A Car Is Not a Pirate Ship

by Stuart Taylor, Jr.

Indonesia-Lippo-Riady-Huang-Hub-bellgate. Taiwangate. Koreagate (II). Buddhist-Temple-Goregate. Filegate. Travelgate. Paulagate. Cisnerosgate Espygate.

Where to begin?

Some speculations: The man to watch will be Independent Counsel Kenneth Starr, who is still trying to build a case against the president or the first lady or both. The probability that Stair will accuse one or both of crimes seems below 50-50 at this point-but not by much. And there may be less noise than expected on the congressional front, given Republicans’ fears of exposing their own dirty campaign finance laundry.

While a whole new criminal investigation may well find grist in the rivers of cash flowing from the Far East into Democratic campaign coffers-via Clinton cronies who freauented the White House-the greatest threat to the president is the same old scandal that many write off as too complicated to interest (or entertain) the public: Whitewater.

The central questions on which Starr’s team of prosecutors seems to be focusing are whether either or both of the Clintons engaged in a criminal conspiracy with their now convicted former business partners, James and Susan McDougal, to avert bankruptcy for their Whitewater Development Corp. by keeping the McDougals’ foundering Madison Guaranty Savings & Loan afloat during the mid-1980s, and to obtain money by fraud from David Hale’s Capital Management Services Inc.; and whether either or both of the Clintons have engaged ever since then in cover-up activities-both in Arkansas and in the White House-including destroying and secreting evidence, obstructing justice, and perjury.