Category Archives: National Journal

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Campaign Money And The Chief Justice

by Stuart Taylor, Jr.

National Journal

The Supreme Court, especially Chief Justice John Roberts, is at a crossroads.

The immediate issue is whether to demolish Congress’s overly broad, 62-year-old ban on corporate spending in federal elections or, instead, carve out a sensible exception.

The broader question is whether Roberts and Justice Samuel Alito will aggravate the Court’s polarization and give plausibility to charges of conservative judicial activism by providing the fourth and fifth votes for demolition of the ban, and of two important precedents as well.

I fear that the two Bush appointees may be poised to do just that. In their comments during the September 9 oral argument in the big campaign finance case, Citizens United v. Federal Election Commission, they seemed to be pushing for an unnecessarily sweeping decision that would enhance the political power of big business corporations (and would almost certainly be extended to unions as well).

Roberts and Alito would thereby be passing up a golden opportunity for principled compromise held out by liberal Justice John Paul Stevens. He credited a National Rifle Association amicus brief, by conservative lawyer Charles Cooper, with suggesting (as its second-favorite outcome) what Stevens called "the wisest narrow solution of the problem before us." That would be excising with a scalpel, not a meat ax, the one serious First Amendment defect in the campaign finance rules now before the Court.

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Torture: Stop Harassing The Lawyers

by Stuart Taylor, Jr.

National Journal

The legions of left-liberal avengers demanding prosecutions of CIA grunts and the entire Bush national security team on charges of illegal torture are likely to be disappointed, for reasons discussed in my September 5 column.

But many still hope to drive from the legal profession the Bush administration lawyers who advised that waterboarding and other brutal interrogation methods were legal.

And Attorney General Eric Holder is endlessly mulling a 200-plus-page draft report recommending (according to news leaks) referral of former Justice Department lawyers Jay Bybee and John Yoo to state bar authorities for disciplinary proceedings.

The Justice Department’s Office of Professional Responsibility presented the draft to Holder’s predecessor, Michael Mukasey, in December after a five-year investigation. It focuses on two lengthy, August 1, 2002, memos that Bybee and Yoo, then his deputy, co-authored. They helped open the door for the CIA to use brutal interrogation techniques by construing very narrowly the 1994 law that makes "torture" a federal crime.

Holder should unambiguously reject this recommendation, as Mukasey reportedly did in a still-unreleased memo before leaving office. Even if these "torture memos" were wrong, the relevant rules clearly provide that the only grounds for the OPR or state bar officials to discipline Bybee or Yoo would be proof that they acted in bad faith by knowingly misstating the law, or were incompetent.

There is nothing remotely like such proof. Nobody who knows Bybee, now a federal Appeals Court judge, or Yoo, a leading scholarly advocate of sweeping presidential war powers who teaches law at the University of California (Berkeley), doubts that they believed in their own interpretation of the anti-torture law.

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Torture: Why Holder May Enrage The Left

by Stuart Taylor, Jr

National Journal

Both the hard Right, led by Dick Cheney, and the hard Left found cause to be unhappy about Attorney General Eric Holder’s August 24 announcement of a "preliminary review" to determine whether Bush-era interrogations of "specific detainees at overseas locations" violated federal laws.

I’m guardedly betting (and hoping) that the Right’s suspicions that President Obama and Holder are seeking to criminalize policy differences are misplaced, and that in the end the inquiry will infuriate the Left by finding no grounds for new prosecutions, except perhaps of any newly disclosed conduct so egregious as to be indefensible.

I base this speculation mainly on my view that such an anticlimactic result would be the best outcome politically for Obama, and for the country.

Specifically, I doubt that Holder or Obama has any intention of prosecuting such underlings as the CIA agent who strayed beyond Justice Department legal guidance by threatening terrorist mastermind Khalid Shaikh Mohammed with the murder of his children.

I also see no reason to disbelieve Holder’s and Obama’s promises not to go after interrogators who acted "in good faith and within the scope of legal guidance," or to suspect them of targeting the high-level Bush administration officials who approved brutal methods such as waterboarding.

Although Holder was reportedly horrified when he read detailed accounts of brutal interrogations, he must understand that horror cannot justify explosive prosecutions — with little chance of convictions — of honorably motivated public servants.

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Two Noble Young Men

by Stuart Taylor, Jr.

National Journal

An estimated 1,500 people filled Washington National Cathedral on Sunday to celebrate the lives of two happy, generous, remarkably accomplished young men, 24-year-old Stone Weeks and his 20-year-old brother, Holt, of North Bethesda, Md. It was the saddest, most moving, most beautiful memorial service I’ve ever seen.

To share some of that beauty, I devote this column to Stone, Holt, and their wonderful parents, Linton and Jan Taylor Weeks.

Speaker after speaker told of brothers who were also best friends, who exuded a truly extraordinary love for their parents, who threw themselves into academics, sports, and karaoke singing, and who were devoted to helping less fortunate people and fixing our troubled world.

Stone and Holt died in a July 23 traffic jam on Interstate 81 in Virginia when their car was crushed between two trucks and consumed by fire. They were headed from Texas to Washington, with Stone’s beloved dog, Priam, to visit their parents and attend a book party for historian Douglas Brinkley, for whom Stone had been an assistant and researcher for two years at Rice University in Houston.

Following are fragments of the uncommonly eloquent personal reflections by six speakers at the service for Stone Taylor Weeks and William Holt Weeks. (You can find the video at http://video1.cathedral.org/wmv/weeksfuneral090802.wmv.)

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Did Precedent Make Sotomayor Rule Against Ricci? – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Judge Sonia Sotomayor has not defended her most widely criticized decision — the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. — as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor’s decision.

And as I’ve explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor’s three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications — no matter how job-related and racially neutral — on which blacks or Hispanics did badly.

Instead of defending her panel’s quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I’ll begin with critics’ simplest rebuttal to Sotomayor’s precedent-made-me-do-it claim:

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Sotomayor, Gates And Race – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."

Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven’t been fundamental structural changes in America…. The only black people who truly live in a post-racial world in America all live in …

From National Journal‘s July 18 issue:

Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."

Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven’t been fundamental structural changes in America…. The only black people who truly live in a post-racial world in America all live in a very nice house on 1600 Pennsylvania Avenue."

What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.

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Sotomayor Sparks Debate Among Conservatives Over Originalism – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

"Many conservatives oppose Judge [Sonia] Sotomayor’s nomination because she does not appear to support originalism…. But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint [by claiming] that the Constitution’s 14th Amendment mandated a policy of strict colorblindness by state and local governments…. The historical evidence that it did is weak…. To seek to invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by ‘judicial activism.’"

These words — which echo criticism of the Supreme Court’s conservatives by liberal scholars and Democratic senators — packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.

His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.

Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."

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Bumper-Sticker Judicial Philosophy – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

The bumper-sticker liberal view of constitutional interpretation might begin with President Obama’s assertions that "the Constitution… is not a static but rather a living document and must be read in the context of an ever-changing world," and that "we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom" or "to be poor or African-American or gay or disabled or old."

The bumper-sticker conservative view might begin with the standard denunciations of "legislating from the bench" and "judicial activism." Other formulations include: "Judges are like umpires. Umpires don’t make the rules; they apply them." "As a judge, I don’t make law…. I apply the law to facts." "Judges… don’t determine the law. Congress makes the laws. The job of a judge is to apply the law."

It’s notable that while the "umpire" analogy came from Bush nominee John Roberts in 2005, the subsequent two conservative-sounding quotes came from Obama nominee Sonia Sotomayor.

Sotomayor worked very hard last week not to sound like a liberal. So hard as to suggest that she and her White House handlers understand that the living-Constitution-plus-empathy approach is seen by many voters — fairly or unfairly — as a facade for judges rewriting the law to favor liberal constituencies and causes.

But the simplistic picture painted by many conservatives — and now by Sotomayor — of judging as a mechanical exercise with no place for moral and political values is unreal to anyone who understands the subjective nature of the choices that judges, and especially justices, must often make.

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The Lessons Of Bork – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

A Nexis search finds more than 50 mentions of "kabuki"– a form of Japanese theater that has become journalese for empty, stylized ritual — in news stories about the Senate Judiciary Committee’s hearings on Judge Sonia Sotomayor.

The most common explanation for why judicial confirmation hearings have become such empty rituals is that the Senate’s rejection of Judge Robert Bork in 1987 — after the conservative Reagan nominee had answered dozens of questions about his "originalist" judicial philosophy — proved that candor could be fatal for any nominee.

Since the Bork nomination, "the goal for judicial nominees has been to skate through by saying as little as possible as politely as possible," the New York Times observed in an editorial Tuesday.

There is much truth in this. But Bork’s fate did not prove that nominees have to hide or misrepresent their judicial philosophies in order to get confirmed.

For one thing, Bork probably would have been defeated even if he had ducked the questions about his judicial philosophy, as subsequent nominees have done.

For another, Sotomayor very probably would have been confirmed by a wide margin — albeit with a bit more difficulty — even if she had been far more forthcoming about her views of the law, and less determined to deny the apparent meaning of her controversial past statements.

It would be improper for judicial nominees to answer senators’ questions about specific issues that might come before them, for the reasons that I discussed on this blog. But there is no ethical requirement that nominees duck general questions about judicial philosophy. And it is affirmatively unethical to give deliberately deceptive answers.

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Big Issues That Got Short Shrift – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

The media consensus about the recently completed hearings on Judge Sonia Sotomayor’s nomination seems to be that it was a waste of everybody’s time, with Republican senators asking "gotcha" questions and the nominee sticking to cautious bromides of the I-just-apply-the-law variety.

"While her confirmation hearings drew plenty of coverage last week," wrote Howard Kurtz in the Washington Post, "the level of media excitement hardly matched that surrounding Mark Sanford’s Argentine affair, Sarah Palin’s Alaskan exit or Michael Jackson’s untimely departure."

True enough. But it’s also true that most of the media missed a major opportunity to use the hearings as a peg for background pieces and news analyses explaining to readers and listeners some of the big issues on which so little light was shed by the senators and the nominee.

The media know how to do that sort of thing in other contexts. Consider the way in which the New York Times and others have used the 40th anniversary of the first moon landing for fascinating explorations of the past, present and future of space travel, including everything from the lunar lander’s technology to the astronauts’ subsequent lives.

But how much insight did the media offer on the complex but important issues that came up during the Sotomayor hearing? Issues such as these:

• Are judicial confirmation hearings so empty because of Judge Robert Bork’s defeat in 1987, as some suggest? Is it really true that when Bork was rebuffed after candidly discussing his conservative, "originalist" judicial philosophy, his fate proved that candor would be fatal for any nominee, thus dooming all future hearings to vacuity?