Judiciary – The Tipping Point

National Journal

Justice Antonin Scalia’s demeanor was charming, his delivery witty. But his message was serious, and some of his words were blunt. Scalia’s subject at an April 18 symposium hosted by Michigan State University in a Washington hotel was "judicial activism." The 64-year-old Reagan appointee’s main targets were "the liberal [Supreme] Court of the `60s and `70s"-which he said sometimes used "phony and disreputable" reasoning to distort the meaning of laws-and the U.S. Congress of more recent years, which he accused of "legislative activism." And his conclusions went to the fundament of our constitutional system.

Countering academic critics who have turned the old imprecation of activism against Scalia and his conservative colleagues, Scalia said that "the current Court is considerably less activist … than the Court of a few decades ago." He acknowledged that "conservatives are just as willing to play this game as liberals are now," and that "we are striking down as many federal statutes from year to year as the Warren Court at its peak." But he noted that the Court has been voiding fewer state and local statutes than it did in previous decades. And he stressed that most federal and state laws that have fallen lately have "involved attempts by a legislature to do something quite novel and often even downright bizarre." He lingered on "bizarre."

Legal Affairs – Why You Can’t Sue Your Rapist In Federal Court

National Journal

"The 1994 Violence Against Women Act provided (among other things) that victims of rape, domestic abuse, and other "crimes of violence motivated by gender" could file federal civil rights lawsuits against their alleged assailants. The measure was nothing if not popular. Championed by President Clinton and feminist groups, it sailed through the House and Senate.

Legal Affairs – How the Embargo Hurts Cubans And Helps Castro

National Journal

In the early 1960s, the CIA plotted to poison Fidel Castro’s cigars, to send Mafia hit men after him, and to make his beard fall out by dusting his shoes with a depilatory. These were not good ideas. Now the centerpiece of U.S. policy is the rigid, unilateral economic embargo and travel ban codified by the 1996 Helms-Burton Act. This is not a good idea, either. Nor are the Helms-Burton penalties on foreign companies that invest in properties expropriated by Castro 40 years ago.

Legal Affairs – Elian: An Excess Of Certitude And IdeologyOn All Sides

National Journal

Am I the only person in Washington who is not sure-absolutely, unequivocally sure-of the answers to all the big questions raised by the Elian Gonzalez drama? The only one who isn’t certain that the boy should go back to Cuba with his father-or that this would deliver him into slavery? The only one who has trouble deciding whether the predawn paramilitary raid that snatched Elian from the Miami home of his great-uncle Lazaro on April 22 was a triumph for the rule of law or a police-state abomination?

Opening Argument – Death Row Law: A Maze Of Technicalities, A Ray Of Hope

National Journal

Two April 18 Supreme Court decisions provide both a ray of hope for condemned prisoners — the few who may be innocent as well as the many who are murderers — and a window into the byzantine maze of technicalities that death row law has become.

So byzantine is the law that sometimes even well-respected newspapers cannot agree on which way the Court is headed. In front-page stories the day after the rulings, The Washington Post explained that the Court had "curtailed the power of federal judges to override state court decisions against death row prisoners." The New York Times, on the other hand, said the Court had determined that "federal judges still have a significant role to play in reviewing the quality of justice administered by the states."

There is truth in both perspectives. But most death penalty critics and defense lawyers were, on balance, pleased. The Court made it clear that lower federal courts still can, and sometimes should, overturn state convictions and sentences. The Justices also set an example for lower court judges by finding — for the first time in the Court’s history — that a court-appointed defense lawyer had performed so badly as to violate the defendant’s long-recognized, but rarely enforced, Constitutional right to effective assistance of counsel.

The immediate effect of the rulings was to give reprieves to two murderers on Virginia’s death row, the first (Terry Williams) because his court-appointed lawyers had botched his sentencing hearing, and the second (Michael Williams) because one of his court-appointed lawyers had not botched his appeal. (The cases, and Terry and Michael Williams, are unrelated.)

Inconsistent? Not if you examine the two cases through the peculiar prism of death penalty law, which befuddles both state prisoners who want federal tickets off of death row and state officials who want to get on with the executions.

Legal Affairs – Victims’ Rights: Leave the Constitution Alone

National Journal

Chances are that most Senators have not really read the proposed Victims’ Rights Amendment, which is scheduled to come to the floor for the first time on April 25. After all, it’s kind of wordy-almost as long as the Constitution’s first 10 amendments (the Bill of Rights) combined. And you don’t have to go far into it to understand two key points.

The first is that a "no" vote would open the way for political adversaries to claim that "Senator So-and-so sold out the rights of crime victims." This helps explain why the proposed amendment has a chance of winning the required two-thirds majorities in both the Senate and the House. Sponsored by Sen. Jon Kyl, R-Ariz., it has 41 co-sponsors (28 Republicans and 13 Demo-crats), including Dianne Feinstein, D-Calif., and has garnered rhetorical support from President Clinton, Vice President Gore, and Attorney General Janet Reno. (The Justice Department has hedged its endorsement of the fine print because of the deep misgivings of many of its officials.)

Legal Affairs – How Jeb Bush Suddenly Became Bull Connor

National Journal

It was perhaps the biggest mass protest in Florida’s history, with 10,000 demonstrators converging on the Capitol in Tallahassee on March 7. Some placards called Florida Gov. Jeb Bush "Jeb Crow." Others said, "Pharaoh Bush, let my people go!" A speaker declared that the governor had taken "the first step towards resegregation."