Category Archives: Major Print Outlets

Stuart Taylor, Jr.’s media appearances in print publications.

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Opening Argument – Shortsighted on Judges

by Stuart Taylor, Jr.

National Journal

Imagine that two years hence, Sen. Hillary Rodham Clinton, or Sen. Barack Obama, or former Sen. John Edwards is president. She or he will be trying to fill dozens (eventually) of vacancies on federal Courts of Appeals with liberal-leaning nominees. And perhaps one or two Supreme Court vacancies as well.

If and when those nominees face Republican filibusters or other tactics to deny them floor votes, what standing will the new Democratic president have to protest? How, for example, could Obama show his own nominees to be more deserving of confirmation than former Mississippi Judge Leslie Southwick, who is under attack by Obama and other Senate Democrats simply because liberal interest groups consider him too conservative?

Southwick, who is a professionally well-qualified and personally admirable Bush nominee for the U.S. Court of Appeals for the 5th Circuit (covering Louisiana, Mississippi, and Texas), is the latest victim of a judicial confirmation process that has steadily become more degraded by partisan warfare in recent decades.

Senate Democrats’ treatment of Southwick will show whether they are so shortsighted as to provide their Republican adversaries with new precedents and excuses for a campaign to obstruct the next Democratic president’s liberal nominees, no matter how well qualified.

If "too conservative" is reason enough for Democratic senators to block a floor vote on Southwick, who is no right-wing culture warrior, then "too liberal" will be reason enough for Senate Republicans to do the same when the shoe is on the other foot.

The long-term cost to the country is that bit by bit, almost imperceptibly, more and more of the people who would make the best judges — liberal and conservative alike — are less and less willing to put themselves through the ever-longer, ever-more-harrowing gantlet that the confirmation process has become.

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Opening Argument – Are the Democrats Serious?

by Stuart Taylor, Jr.

National Journal

So far, at least, both sides deserve to lose the brewing battle over congressional Democrats’ subpoenas for information about White House deliberations on the firings of nine U.S. attorneys.

The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.

"Presidents who really care about executive privilege and secrecy don’t make the claims about confidentiality and evading legal rules wantonly and libidinously," asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Clinton for misusing executive privilege to shield himself.

The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else-besides beat their chests in righteous rage-that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of former White House Counsel Harriet Miers and political aide Sara Taylor.

But the Democrats could change this equation by showing that their subpoenas have a legislative goal that transcends embarrassing President Bush.

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The Power Broker

by Stuart Taylor, Jr.

Newsweek

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself wi

In 19 cases during the past year, the Supreme Court split down the middle along ideological lines. The court’s four conservatives-Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel Alito-lined up on one side, and the four liberals-Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter-lined up on the other. Each time, the tie was broken by a fifth vote belonging to Justice Anthony Kennedy. On 13 occasions, Kennedy aligned himself with the conservatives. While the court is clearly moving to the right, it’s obvious that Kennedy holds the balance of power.

Kennedy is known for examining his conscience as well as the law books when he decides a difficult case. And justices caught in the middle of fierce ideological disputes sometimes agonize or brood over their opinions. But sitting with a NEWSWEEK reporter in his chambers overlooking the U.S. Capitol on the day after the court’s final decision of the 2006-07 term, Kennedy seemed cheerful, even enthusiastic, about his role. True, "the cases this year were more difficult than I thought they would be," he said. In closely divided cases when time is short, he added, the court’s "tone becomes somewhat more acrimonious." But he laughed and held up his hands and said, "Hey, I’m a lawyer. I’m trained to argue. I love it."

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Opening Argument – Is There a Middle Ground on Race?

by Stuart Taylor, Jr.

National Journal

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court — in Seattle and metropolitan Louisville, Ky. — "are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students — especially poor blacks — hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

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Is There a Middle Ground on Race?

by Stuart Taylor, Jr

The Atlantic

The June 28 Supreme Court decision sharply curbing the ability of school districts to pursue racial integration illustrates the pitfalls of both the conservative and the liberal blocs’ approaches to the problem of race. But finding a principled middle ground is not easy.

The conservatives. Chief Justice John Roberts’s plurality opinion for the four-man conservative bloc oversimplified the Court’s precedents in order to veer close to a "colorblind Constitution" absolutism that has never been the law. Roberts declared broadly that the integration programs before the Court—in Seattle and metropolitan Louisville, Ky.—"are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate." But no Supreme Court majority has ever condemned the pursuit of racial balance in public schools as illegitimate.

To the contrary, countless judicial decrees mandated race-based student assignments as a remedy for official segregation during the decades after Brown v. Board of Education. More to the point here, the justices said repeatedly during that era that communities with no such history of official segregation could pursue integration if they chose. Many lower courts said the same. This reflected a widespread view that racial isolation of minority students—especially poor blacks—hurts their educations and that proximity to children of other races can benefit all students by fostering interracial understanding and empathy.

Roberts unpersuasively brushed aside this body of precedent as though it had been silently overruled by the general language of more-recent decisions in the very different context of racial preferences in awarding government contracts and seats in selective universities.

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Are the Democrats Serious?

by Stuart Taylor, Jr

The Atlantic

So far, at least, both sides deserve to lose the brewing battle over congressional Democrats’ subpoenas for information about White House deliberations on the firings of nine U.S. attorneys.

The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.

“Presidents who really care about executive privilege and secrecy don’t make the claims about confidentiality and evading legal rules wantonly and libidinously,” asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Clinton for misusing executive privilege to shield himself.

The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else-besides beat their chests in righteous rage-that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of former White House Counsel Harriet Miers and political aide Sara Taylor.

But the Democrats could change this equation by showing that their subpoenas have a legislative goal that transcends embarrassing President Bush.

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Opening Argument – Polarizing Campaign Finance Law

by Stuart Taylor, Jr.

National Journal

The most remarkable aspect of the Supreme Court’s big 5-4 decision on June 25 easing restrictions on corporate campaign spending has gone virtually unnoticed: Like Congress, the Court is so ideologically polarized that even when a principled, pragmatic, nonideological solution to a knotty problem was staring them in the face, all nine justices spurned it.

The knotty problem was that Congress, in the "issue ad" provision of the 2002 McCain-Feingold campaign finance law, had joined a legitimate goal with an illegitimate one.

The legitimate goal was to prevent business corporations — which have no mandate from their ideologically eclectic stockholders to use their money to meddle in election campaigns — from doing just that.

The illegitimate goal was to censor criticism of elected federal officials (along with other candidates) by nonprofit citizens advocacy groups — ranging from the National Rifle Association to the Sierra Club — whose members pay dues and band together precisely for the purpose of promoting political causes near and dear to them.

Congress quite deliberately, and cynically, accomplished both goals in the same provision (Section 203) by the simple and stealthy expedient of making it a federal crime for any corporation (excepting media corporations) to pay for a broadcast ad that refers to any federal candidate during the run-up to an election.

Because nearly all nonprofit advocacy groups are incorporated, the effect was to extend to such groups a ban ostensibly aimed at companies like General Electric and Dow Chemical. Indeed, it was the nonprofit citizens groups, not Big Business, that had bought many or most of the attack ads that legislators so resent.

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A Court Divided

by Stuart Taylor, Jr.

Newsweek

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Educ

Measured by the passion of the dissenters, today’s 5-4 vote to strike down two school districts’ use of race-based student assignments to promote integration could be the biggest Supreme Court decision of any kind in years. Justice Stephen Breyer’s 77-page dissent-which he summarized from the bench in a tone of mounting indignation, for a near-record 27 minutes-thundered that "to invalidate the plans under review is to threaten the promise" of "true racial equality" that Brown v. Board of Education established. Breyer added that the position of the four most-conservative justices "would break that promise."

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Opening Argument – A Judicial Overreaction to Bush Abuses?

by Stuart Taylor, Jr.

National Journal

A federal Appeals Court’s unanimous rejection on June 11 of President Bush’s effort to deny judicial review and due process to a legal alien who has been militarily incarcerated for four years — because Bush says he is a Qaeda agent — was a ringing and welcome defense of our constitutional freedoms.

But I worry that two of the three judges may have gone too far, or exposed a gap in our laws that Congress needs to fill, in their additional, broader holding. It was that Ali Saleh Kahlah al-Marri and other suspected Qaeda terrorists arrested in the United States cannot be detained at all, no matter how dangerous, unless the government brings criminal charges against them within a week of arrest or is unable to deport them.

Whether or not correct as a matter of law, this majority opinion points, in my view, to the need for explicit congressional authorization of prolonged (although not indefinite) detention and aggressive (although not abusive) interrogation of suspected Qaeda agents who cannot be criminally prosecuted. Congress should also require muscular due process safeguards and exacting judicial review, which the Bush administration has furiously opposed, to prevent erroneous detentions of innocent people.

More broadly, the chasm between the views of the president and these two judges on how such cases should be handled illustrates yet again the need for Congress to end its shameful abdication of its duty to rethink the war-on-terrorism’s detention and interrogation policy from the ground up.

The easy issue in the al-Marri case is whether foreigners living legally in this country who are suspected of being Qaeda sleeper agents — such as al-Marri, a Qatari graduate student at Bradley University who lived in Peoria, Ill., with his wife and five children — can be subjected to long-term military detention based solely on the president’s say-so, with no right to due process or judicial review.

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Opening Argument – ‘Injustice 5, Justice 4’

by Stuart Taylor, Jr.

National Journal

This headline, borrowed from a New York Times editorial, pretty well sums up the news media’s portrayal of a May 29 Supreme Court ruling that an Alabama woman suing her former employer for sex-based pay discrimination had not filed her claim within the congressionally prescribed time limit.

In The Times, that headline could only refer to one grouping: The usual four conservatives plus sometime-conservative Justice Anthony Kennedy voting down the usual four liberals. With Bush-appointed Justice Samuel Alito writing the majority opinion, and Clinton-appointed Justice Ruth Bader Ginsburg reading her dissent from the bench and urging Congress to "correct" the Court, this rather technical case, Ledbetter v. Goodyear Tire & Rubber, instantly became a magnet for media moaning of the barbarians-at-the-gate genre.

"The Supreme Court struck a blow for discrimination this week," The Times began. The Court "has read the law so rigidly that it has misread life," chimed in the Los Angeles Times. The Washington Post’s front-page news report devoted (by my count) four paragraphs to the nuts and bolts of the decision, four and a half paragraphs to the majority’s analysis and supportive quotes, and 17 and a half paragraphs to Ginsburg, her dissent, and other critics. "A harsh and rigid reading of the law … striking for its lack of empathy," Ellis Cose complained in Newsweek. He seconded the American Civil Liberties Union’s charge that this was an "astonishing decision" by an "activist court."