Legal Affairs – The Media Should Beware of What It Embraces

National Journal

The uncritical enthusiasm of most media organizations for abolishing "soft money" and restricting issue advertising by "special interests" prompts this thought: How would the networks and The New York Times like a law imposing strict limits on their own rights to editorialize about candidates? After all, if some of their favored proposals were to be enacted, the media would be the only major interest still enjoying unrestricted freedom of political speech.

Legal Affairs – Outrages and Curmudgeonly Complaints From the Year Gone By

National Journal

In the spirit of the season, and in the hope of a fresh start in the New Year-with malice toward none, with charity for all-I hereby purge myself of various vexations of the old year. Liberal Claptrap

• The Clintonization of Al Gore, who increasingly apes his boss in fictionalizing his life story and mangling the truth for political gain.

Gore-self-described inspiration for the novel Love Story, discoverer of Love Canal, co-creator of the Internet, and author of the earned income tax credit-has shifted from anointing Clinton "one of our greatest Presidents" to calling his conduct "inexcusable," to acting as if he barely knows the man, to re-embracing him at fund-raisers. Worse, Gore has systematically distorted Bill Bradley’s record and proposals. Example No. 1: Slamming Bradley’s cautious past support of experimental tuition vouchers as 18 years of votes to "siphon funds from public schools to private ones." Example No. 2: Warning both that Bradley’s health care proposal is a threat to leave "African-Americans and Latinos out in the cold" (because it would supplant Medicaid) and that it costs too much (because it seeks to cover so many who are now uninsured). The latter warning would ring truer had Gore not championed Hillary Rodham Clinton’s far more costly, far more grandiose plan in 1993.

Legal Affairs – Ambivalence In the Pursuit of Judicial Modesty Is No Vice

National Journal

It’s no secret that the next President could alter the ideological balance on the Supreme Court. The Court is so closely divided that the next appointment or two could produce a shift either to the liberal or to the conservative side. What’s less widely appreciated is that the current makeup of the Court so closely mirrors the nation’s divisions, with those at the center often striking so delicate a balance, that a dramatic shift in either direction would be quite unsettling for the body politic. With the Justices split 5-4 on affirmative action, racial gerrymandering, church-state relations, and states’ rights, a one-vote switch could, for example, virtually wipe out governmental use of racial preferences–or ensconce them more firmly than ever before. Roe vs. Wade hangs by two votes. And the next President’s appointments (if any) could make the Court far more conservative–or more liberal–on gay rights, the "right to die," campaign finance restrictions, feminist causes, and other ideologically charged issues. But thoughtful liberals should hesitate to wish for a Court bent on sweeping away laws requiring that parents be notified when their children seek abortions, or junking the military’s restrictions on women in combat, or striking down the death penalty (again). And thoughtful conservatives should hesitate to wish for a majority bent on eradicating the racial preferences used by most elite universities (and other institutions), or reinstating prayer in public schools, or overruling Miranda vs. Arizona (as the current Court has been urged to do in a pending case). The reason is that popular government works best when Justices use their powers sparingly and seek to foster and inform rather than to pre-empt democratic debate on the great issues of the day, and when they respect their own precedents. Such restraint comes most naturally to Justices who can see merit in both liberal and conservative perspectives.

Legal Affairs – Who’s Exploiting Racial Divisions Now?

National Journal

Brazile…will not let the "white boys" win. And that’s not a description of "gender or race, it’s an attitude. A white-boy attitude is `I must exclude, denigrate and leave behind,’ " Brazile says. "They don’t see or think about it. It’s a culture." It is the sense of utter entitlement. And that she will not have. That is how Washington Post reporter Robin Givhan quoted Donna Brazile, Al Gore’s campaign manager, deep in a glowing Nov. 16 profile. Imagine the same statement–but with "white boys" changed to "black girls"–being made by George W. Bush’s campaign manager. It would have touched off a national sensation. Legions of Democrats would have demanded–and promptly received–apologies, but these would not have stilled the clamor. The campaign manager would have been banished from public life, perhaps forever. And Bush’s candidacy would have been severely damaged, with dozens of follow-up stories probing every corner of the Bush camp for other signs of infection by racism. So how did Donna Brazile’s little slur play? Well, the authors of two letters to the editor of The Post found it offensive. So did The New Republic, in a brief item (republished in The Washington Times): "Since when, we wonder, is the phrase `white-boy attitude’ not about gender or race?" So did The Providence Journal-Bulletin. And that’s about it: As of Dec. 1, I can find no other mention, in any publication, of Brazile’s comment. One reason for this, of course, is that "white boys" and other slurs directed at white males are habitually shrugged off, based on a double standard that is understandable in light of our history of racial oppression, but far too forgiving if we want a future of racial tolerance. This same double standard also helps explain why there is so little criticism of the many far more inflammatory comments made by leading liberal Democrats.

Legal – How I Hit The Class Action Jackpot

National Journal

As the lucky co-owner of a Toshiba laptop computer, I should be tickled pink: I apparently qualify for a cash rebate of $309.90. This thanks to an Oct. 29 settlement in which Toshiba agreed to spend at least $1 billion to end a class action lawsuit–the first of a wave now being filed against computer-makers–claiming that it has sold more than 5 million defective laptops in the United States since 1987. Once the settlement receives final judicial approval, owners of laptops purchased since March 5, 1998, can claim cash rebates ranging from $210.00 to $443.21. Both they and owners of older Toshiba computers will also get discount coupons of up to $225 for future purchases of Toshiba products.

Legal Affairs – Seeking Diversity Without Racial Preferences

National Journal

Champions of racially preferential affirmative action in university admissions have swung from denying (unconvincingly) that double standards exist to asserting (more plausibly) that colorblind admissions would produce dramatic and destructive drops in the numbers of black and Hispanic students at top campuses. The specter of such de facto resegregation of the most elite institutions has led many people (including me) who dislike or even detest racial preferences to shrink from calling for their abolition. But maybe it’s possible to dispense with the poison of racial preference, and expand opportunities for disadvantaged students of all races, without sacrificing diversity. That’s the promise of an intriguing plan unveiled by Florida Gov. Jeb Bush on Nov. 9. His "One Florida" initiative would abolish racial preferences in admissions but at the same time, the Governor predicts, increase black and Hispanic admissions to the 10 state university campuses. Bush would seek to do this by guaranteeing admission to the top 20 percent of students graduating from each Florida high school, provided that they have completed the required courses. The high schools would include the mostly black and Hispanic schools that rank lowest in the state in average SAT scores and other measures of academic skills. The state would also continue to give special consideration on an individualized, race-neutral basis to applicants who have shown promise in overcoming adversity. Bush’s "Talented 20" plan appears inspired, in part, by efforts in Texas and California to maintain diversity after racial preferences were abolished by court order (in Texas) and by ballot initiative (in California). A 1997 Texas law requires the flagship campus at the University of Texas to admit the top 10 percent of each high school class. Like the Texas and California efforts, the Florida initiative would reward the hard work of the best students of all races at even the weakest schools.

Legal Affairs – The Mayor, The Art Museum, and The Freedom Of Speech

National Journal

As one who doesn’t much like Catholic-bashing "art," and doesn’t dig pigs and sharks suspended in formaldehyde, and doesn’t want taxpayers dragooned into subsidizing whatever in-your-face, sensationalistic stuff titillates the artsy set, and would love to see Hillary Rodham Clinton’s Senate campaign go the way of her Whitewater land deal, it pains me to say this: New York Mayor Rudolph W. Giuliani is a menace to the freedom of speech. He mauled the First Amendment quite badly when he cut off the long-standing city subsidy that covers a third of the Brooklyn Museum of Art’s operating budget, and sought to evict the museum and its 1.5 million art objects from the city-owned building it has occupied for more than 100 years. Giuliani’s stated reason was the museum’s refusal to cave in to his 11th-hour demand that it cancel an exhibition titled Sensation–or at least take down a painting of the Virgin Mary adorned with elephant dung and surrounded by tiny pornographic pictures of body parts. The mayor says he considers these works "sick," "disgusting," sacrilegious, and insulting to Roman Catholics. Even if the mayor is right about the art, he is wrong about the law. A U.S. District Court judge, Nina Gershon, was entirely persuasive in calling a halt to Giuliani’s jihad. This she did in a Nov. 1 preliminary injunction issued on the ground that the city’s punitive measures violate the First Amendment. Indeed, the mayor’s campaign to bludgeon the museum’s board of trustees into submission exudes "a thuggish quality that sets all sorts of constitutional bells ringing," as Floyd Abrams, who represents the museum in its lawsuit against the city, said in an interview. Worse, Giuliani’s crusade comes at a time when Republicans have a golden opportunity to occupy the high ground in the perennial battle between the forces of free speech and the forces of censorship.

Opening Argument – All the President’s Pardons: The Real Scandal

National Journal

The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel." –Alexander Hamilton, Federalist 74 The fundamental problem with President Clinton’s use of his clemency power has been obscured by the uproar over his decision to free 11 Puerto Rican nationalists who were once involved in crimes related to a campaign of terrorist bombings. The problem is not that Clinton has been too generous in showing mercy. It is that (putting aside the Puerto Rican nationalists) he has been too stingy–stingier than any other President in the past century, perhaps in history. Clinton has done nothing for the legions of nonviolent federal prisoners who are serving long sentences, who pose no threat to society, and who have sought clemency by the hundreds, if not thousands. Many seem far more deserving of mercy than the Puerto Rican nationalists. While the Puerto Ricans certainly had long prison terms, they were deemed dangerous by the FBI, and they never expressed the kind of remorse that is usually considered a prerequisite for clemency. Before releasing the 11 in September, Clinton had awarded early release to a grand total of three federal prisoners. He had also pardoned 108 federal convicts who had finished serving their time. This total of 111 clemency grants (before the Puerto Rican nationalists)–out of 3,229 requests–amounted to a ratio of 1-to-29, or 3.4 percent. That’s the lowest percentage granted by any President since the government started keeping clemency statistics in 1900. This track record lends force to the charges that Clinton’s sudden sympathy for the Puerto Rican nationalists was spurred by intense lobbying by Hispanic officials and activists, more than by considerations of justice, mercy, or the national good.

Legal Affairs – Should the Supreme Court Dump the Miranda Rules?

National Journal

Quietly ticking away in the files of the Supreme Court is a time bomb that seems likely to explode into controversy in the next few weeks–and rock Congress, the Clinton Administration, and the Court itself. The time bomb is Charles T. Dickerson vs. U.S., a petition from a bank-robbery defendant for review of an extraordinary ruling by the U.S.

Opening Argument – The Shame Of the Ronnie White Vote

National Journal

The Democratic spin is that the Republican Senate’s Oct. 5 party-line vote, 54-45, to reject Ronnie L. White’s nomination for a U.S. District Court seat in Missouri was tinged with racism. At the very least, as President Clinton put it, the vote adds "credence to the perceptions that they treat minority and women judicial nominees unfairly and unequally." The Republican spin is, not surprisingly, quite different. In the words of White’s main critic, Sen. John Ashcroft, R-Mo., White’s record as a Missouri Supreme Court judge is "pro-criminal and activist," and exudes "a serious bias against…the death penalty," even "a tremendous bent toward criminal activity." Indeed, said Sen.