Stuart Taylor, Jr.’s media appearances in print publications.
My last column explored some reasons for the bitter liberal-conservative polarization of our political class, which has helped spawn the anger, mendacity, and emotionalism that make our politics so ugly. Here I explain how the Supreme Court and the media have made this polarization worse, and sketch possible remedies.
The air is thick with lies, deceptions, distortions, demagoguery, sleaze, and vicious rhetoric, uttered every day by President Bush, John Kerry, or their surrogates. Both candidates offer evasion and snake-oil non-remedies for dire national problems, ranging from the existential threat of nuclear terrorism, to the war in Iraq, to global warming, to the looming Social-Security-Medicare-deficit disaster. And each campaign is whipping its most partisan supporters into a frenzy of hatred for the opposing party.
Liberal and conservative interest groups see Supreme Court appointments as a president’s most important domestic legacy. So now they are in their quadrennial lather about how Republican appointees could swing the closely balanced Court decisively to the right, and how Democratic appointees could swing it to the left, especially on big social issues that include abortion rights, affirmative action, gay rights, and religion.
This headline might seem to load the dice, in favor of creating a special privilege for us journalists to defy grand jury subpoenas demanding the names of our sources. But it really is that simple: Judith Miller, of The New York Times, and Matthew Cooper, of Time, will go to jail for contempt of court for as long as 18 months for refusing to betray their sources unless they win what look like uphill battles on appeal. Neither has done anything wrong or done anyone harm. Indeed, Miller wrote nothing at all about the matter in contention. Yet both face incarceration for honoring what any decent journalist would consider a cardinal professional and moral obligation. So do other reporters around the country who face a rising tide of prosecutorial demands for sources’ names.
Acting Solicitor General Paul Clement speaks of "carnage and wreckage" in the federal criminal-sentencing system. Supreme Court Justice Stephen Breyer worries that his colleagues may be destroying the "noble objective" of ending unjust disparities in the sentencing of similar defendants for similar misconduct. Law professor Frank Bowman accuses the Supreme Court of creating "a ghastly mess, bringing the federal criminal-justice system to a virtual halt and putting a number of state systems in disarray."
"Kerry and his advisers have behaved disgracefully" in some recent public comments, writes William Kristol in the current issue of The Weekly Standard.
Both major parties are marshaling armies of lawyers — tens of thousands of them — to be ready for battle over every important aspect of this year’s election process, before, during, and after Election Day, wherever the potential for partisan advantage exists.Targeting sympathetic judges and election officials who might be predisposed to tip the results in battleground states including Florida, Missouri, New Mexico, Ohio, and Pennsylvania, these lawyers will be cooking up grounds — or pretexts — for Florida-2000-style recounts and other challenges. It seems all too possible that if the presidential election is close, the courts will once again put us through weeks of uncertainty and once again determine the outcome. The resulting explosion of bitterness could dwarf the one after Bush v. Gore, further depleting the legitimacy of our political and legal processes alike.
In approving racial preferences in admissions at the University of Michigan Law School in Grutter v. Bollinger, Justice Sandra Day O’Connor’s opinion for the Court tacitly endorsed an essentially permanent regime of racial balancing through preferences while purporting to ban both racial balancing and permanent preferences. At the same time, in striking down the all-too-transparent point system used to award racial preferences by the university’s undergraduate school, in Gratz v. Bollinger, the justices signaled that concealment of the nature and magnitude of racial preferences–which has long been indispensable to their political sustainability–will henceforth be the way for selective universities to insulate them from legal challenge as well.
Taken together, the decisions reflect the majority’s evident desire to perpetuate the racial-preference regime long used by almost all major establishment institutions while using obfuscation to insulate it from the overwhelming popular disapproval that candor would have provoked.i
I. Grutter’s impact: a racial spoils system forever?
In Grutter, Justice O’Connor, who had never before voted to uphold a system of racial preferences, quoted a 1977 article asserting that "[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life." But now she has done more than anyone alive to entrench just such a pervasive racial spoils system. In doing so, she and her four more liberal colleagues have cast aside, perhaps forever, the Rev. Martin Luther King’s dream of an America in which people are judged "not by the color of their skin but by the content of their character."
President Bush claims that his tough, confrontational approach to the bad guys of the world has made America safer. But on his watch, the world’s most dangerous regime — North Korea — has openly declared that it is building nuclear bombs as fast as it can. It may already (experts speculate) have as many as a dozen, and it shows signs of preparing its first nuclear bomb test. Nukes in the hands of this paranoid, impoverished regime — which is also building long-range missiles and seems quite capable of selling nukes to Al Qaeda — represent a vastly greater threat to American cities than Saddam Hussein ever did.
It’s unclear whether any president could have prevented this, short of war. But it’s hard to imagine anyone doing much worse than Bush has done. Looking to the future, would John Kerry do better? The answer may turn on a blood-curdling choice: Would it be better to pin all our hopes on peaceful negotiations that seem less than likely to stop North Korea from building a vast nuclear arsenal? Or should we threaten — and, if necessary, launch — pre-emptive bombing attacks that could lead to another all-out Korean war and even the nuking of South Korea and Japan?
The first of the ad hoc military "commissions," which finally held its first pretrial hearings at the Bush administration’s Guantanamo Bay prison camp in late August, has been something of an international embarrassment. We can do better.
