Category Archives: Major Print Outlets

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

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Campaigning for the Bench

by Stuart Taylor, Jr.

If you like you judges fair and impartial, and you favor the freedom of speech, then I nave a nasty little conundrum for you. It is presented by the sort of controversy- heretofore unusual, but likely to become more commonplace in the future-that unfolded recently in Georgia, which (like more than half lbs states) has some contested judicial elections. In late June, a lawyer arraigned Mark Merrit, running for a seal on the Georgia Court of Appeals Judge Gary Andrews, went on the attack with the first negative statewide television advertising campaign even seen in a Georgia judicial election.

Merrit’s 30-second ad assailed Judge Andrews for using "a technicality in 1991 to reverse me conviction of a man who had confessed to molesting his own four-year-old son. The ad stows Merritt saying: "People who commit aims against innocent children should be convicted and serve their entire sentences. Isn’t it time our judges protected us from criminals instead of protecting criminals from justice?"

The state Judicial Qualifications Commission denounced Merritt’s ad, in a June 28 advisory opinion, as violating Canon 7 of the slate’s Code of Judicial conduct, which is binding on all candidates in judicial elections. The commission-which reports to the state supreme court-noted that it "unfortunately" had no power to impose a prior restraint on speech. But if warned that any lawyer-candidate using an ad like Merrill’s could fee subjected to judicial discipline if he won and to state bar discipline if he lost.

The commission faulted me ad for "fail[ing] to disclose that the decision [written by Andrews… was by a 7-2 majority of its court; that cases, especially those on appeal arc frequently and properly decided on technical or procedural aspects of the law; and that the Supreme Court of Georgia refused to hear an appeal"

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Ducking Hopwood: The Passive Virtues

by Stuart Taylor, Jr.

At first blush, it seemed an abdication of responsibility when the Supreme Court declined to review the 5th Circuit’s sweeping decision barring all consideration of race in admissions at the University of Texas School of Law.

The July I denial of certiorari in Texas u Hopwood sowed confusion-probably into the next millennium-as to the legality of racial preferences in admissions everywhere. It left institutions in different states subject to disparate interpretations of the Constitution.

State universities in most of the country will presumably feel free to continue using racial preferences, reasoning that the Court’s 1978 decision in Regents of the University of California v. Bakke remains the law of the land.

But those in Texas, Louisiana, and Mississippi are subject to the 5th Circuit’s broad directives in Hopwood that Bakke is no longer good law, that universities may not consider race, and that any who do so risk punitive damage awards to rejected white applicants.

(While the 5th Circuit did say that preferences could theoretically be used to remedy an institution’s recent history of proven discrimination against minorities, no university appears to have such a recent history.)

Justice Ruth Bader Ginsburg’s one-page explanation for her vote to deny certiorari, joined by Justice David Souter, was less than convincing.

Ginsburg noted that Texas no longer defended the crude, quota-like admissions process that the law school had used in 1992 (when the case was filed), and that the record shed little light on the operation of the school’s current regime of racial preferences.

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One Cheer for the VMI Decision

by Stuart Taylor, Jr.

The Supreme Court probably reached the right result in its 7-1 decision striking down all-male education at the Virginia Military Institute, given the state’s failure to offer any genuinely equal opportunity to women.

But even so, the broad sweep of Justice Ruth Bader Ginsburg’s June 26 majority opinion in United States v. Virginia could end up doing more harm than good. The Ginsburg opinion contains some powerful and persuasive reasoning. But it unwisely and unnecessarily leaves a cloud over all single-sex education, especially in public institutions; it raises too high the constitutional barrier against sex-based governmental distinctions, at a time when sex discrimination by government is simply not a very serious problem; it flirts obliquely with the unprincipled double standard sought by many feminists, who want sex-based programs for females only; and it reads a bit too much like a symbolic affirmation of triumphant feminist ideology rather than a sober exercise in constitutional law.

Most of these points are well made in Justice Antonin Scalia’s dissent, which unfortunately undermines its own credibility by featuring wildly hyperbolic claims that the decision "shuts down" VMI and will "destroy" the place.

Hyperbole aside, Scalia may well be right- although I hope he’s wrong-in asserting that the Court’s rationale "ensures that single-sex public education is dead."

This prospect is especially troubling at a time when many educational experts and some feminists are citing powerful evidence that single-sex education can benefit girls and boys alike, and when there is a crying need to encourage experimentation with alternatives to current educational orthodoxies.

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Bribery vs. Politics

by Stuart Taylor, Jr.

Clintongate is getting so multifarious and confusing, it makes your head hurt. Just when you think you’re getting close to figuring out how a couple of political bozos at the White House got hold of confidential FBI files on big-shot Republicans like Jim Baker, Ken Duberstein, Tony Blankley-and more than 400 other people-a bunch of Republican senators across town dump a 769-page report detailing Whitewatergate, Madisongate, Thomasesgate, Nussbaumgate, Williamsgate, Ickesgate, and other subgates of Hillarygate. Then a bunch of Democratic senators dump a nearly 400-page report dismissing the Republicans’ 769 pages as a bunch of bull, to borrow from President Bill Clinton’s elegant rebuttal of allegations by one David Hale.

(Pop math quiz: If the probability that Hillary Rodham Clinton is telling the truth is charitably assumed to be 50-50 on Travelgate, and 50-50 on the belated appearance in her house of her subpoenaed billing records with her fingerprints on them, and 50-50 on her denial that she tried to hide documents in Vincent Foster’s office from investigators after his suicide, and 50-50 on her involvement in the allegedly fraudulent Castle Grande real estate deal, and 50-50 on how she made $100,000 on a $1,000 investment in the commodities market, then what is the probability that she is telling the truth on all five of these things?

Answer: One divided by the number of words in the next paragraph.)

Meanwhile, the Supreme Court is mulling whether to invoke the Constitution to help Clinton’s lawyers stall PaulaJonesgate past the election. And two more erstwhile Clinton banker buddies are on trial in Arkansas.

What’s a body to make of it all? Whom can we trust to give us the straight poop? Alfonse D’Amato-the guy who made $37,125 on a hot stock in a single day in 1993, thanks to special treatment from a brokerage firm? Hah!

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The Problem With Clarence Thomas

by Stuart Taylor, Jr.

"When I went to Yale Law School, they had reduced black admissions from 40 to 12. We were all there on our own merit. In subsequent years, that’s a fact that’s been clouded."

So said Justice Clarence Thomas in a May 7 speech at Texas Wesleyan University Law School, according to The Dallas Morning News. He also said that be takes offense when people say he’s a product of affirmative action, and that such policies did not exist when he attended a private Catholic school, college, and Yale Law School.

With all respect for Justice Thomas’ remarkable rise from adversity, these assertions are at odds with the historical record at Yale Law School, which used explicitly race-based preferences for blacks at the time of Thomas’ admission in 1971.

Another Thomas quotation, from his concurrence in Adarand Constructors Inc v. Peña (1995): "I believe that there is a ‘moral [and] constitutional equivalence’… between laws designed to subjugate a race and those that distribute benefits on the basis of race in older to foster some current notion of equality."

With all due regard for the sincerity of Thomas’ passionate opposition to race-based affirmative action, it borders on fanaticism to suggest that such preferences are just as bad as was the longstanding oppression of blacks through the apartheid regime of official segregation and Jim Crow laws.

The two statements quoted above exemplify what is (to me) most troubling about Justice Thomas: While his judicial opinions often contribute a valuable perspective on hard issues, and while he does a great service by preaching the values of self-reliance and hard work to students and others around the country, he often exudes the concede-nothing, bellicose absolutism of a seething ideological zealot.

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The Whitewater Endgame

by Stuart Taylor, Jr.

Independent Counsel Kenneth Starr has no evidence at this point that comes anywhere near warranting criminal prosecution of President Bill Clinton, as far as the public record discloses.

But suppose that Starr has a secret smoking gun, or comes up with one in the next few months. Suppose, for example, that lie succeeds in squeezing one or more of the three former Clinton associates convicted by a Little Rock jury on May 28-or the two others set for trial this month-into giving damning testimony against the president, corroborated by new documents.

What should Starr do then? Seek a grand jury indictment of Ike president? Send his evidence to the House Judiciary Committee for consideration of possible impeachment? Make if public and let the voters pass judgment? Or what?

And what should Starr do if tie thinks he has proof of a crime by Hillary Rodham Clinton? This is a more plausible scenario, given evidence like the 1993 memo by then White House official David Watkins contradicting the first lady’s swom statements that she bad no role in the White House travel office firings, and the belated appearance in her home of subpoenaed Rose Law Firm billing records bearing her fingerprints.

While such questions may seem premature, the fundamental purpose of the entire Starr enterprise is to look for any evidence that may implicate the president in a crime. So perhaps it’s time to start thinking about what Starr should do if he finds some.

The experience of the Watergate era offers some perspective.

In 1973, no less a conservative Republican luminary than then Solicitor General Robert Boric filed a brief arguing that the Constitution bars any criminal indictment of a sitting president, and makes the impeachment process the only remedy for presidential criminality. (He immediate purpose of the brief was to reject Vice President Spiro Agnew’s claim that the Constitution shielded htm, too.)

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Twisting and Turning on Gay Rights

by Stuart Taylor, Jr.

The Supreme Court’s big gay rights decision on May 20 is at once immensely inspiring and intensely troubling.

The inspiring thing about Romer v. Evans is the Court’s overdue embrace of simple justice for gay people, through fee majority’s assertion that states "cannot make them unequal to everyone else" or "deem a class of persons a stranger to its laws."

If the courts build on this foundation with wisdom and restraint, and if the nation receives it with respect, Romer may foster social tolerance as well as legal equality. It does not necessarily portend a line of decisions that will run roughshod over the free-association fights of people who are offended by (or simply uncomfortable with) homosexuality, nor will it push Heather Has Two Mommies into public school curricula.

The troubling thing about the 6-3 Romer decision is that the majestic generalities of Justice Anthony Kennedy’s majority opinion are surrounded by such crude, superficial, and evasive legal reasoning- along with slurs tarring the voters of Colorado as bigots-as to lend credence to the dissenters’ complaint that this is "an act, not of judicial judgment, but of political will."

The risk is that the glaring flaws in me majority opinion-compounded by the distortions that pervade Justice Antonin Scalia’s elegantly vitriolic dissent- might help spur a backlash akin to the one that followed Roe v. Wade, an equally weak attempt at judicial reasoning. This could damage the Court’s moral authority and even, in the long run, set back the cause of gay rights.

We won’t know for a decade or so, until the effects have rippled through our law and culture, whether the good in this decision will eclipse the bad.

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Affirmative Action and Doublespeak

by Stuart Taylor, Jr.

Guess who said this:

It is simply wrong to give one applicant an automatic advantage over another applicant, based solely upon the color of one’s skin. It was wrong 50 years ago, and it is wrong today…. Admissions decisions should not be based upon race or ethnicity. Such decisions should be based upon individual merit, individual qualifications and individual preparedness.

If you picked Antonin Scalia or Clarence Thomas or Bob Dole or some other anti-affirmative action advocate of the Constitution-is-colorblind school, go to the back of the class.

No, the quote is from the second paragraph of an April 29 press release put out by Texas Attorney General Dan Morales, announcing his petition for Supreme Court review in Texas v. Hopwood. That’s the big affirmative action case-perhaps the biggest ever-in which the U.S. Court of Appeals for the 5th Circuit barred consideration of race in admissions at the University of Texas Law School.

The central thrust of Morales’ petition for certiorari is that the state should be allowed to continue using preferences (although not "quotas"), based upon race or ethnicity, to admit black and Hispanic applicants ahead of whites with far better grades, test scores, and other nonracial qualifications.

The petition, prepared for Morales by Harvard Law Professor Laurence Tribe, contains powerful constitutional arguments that may ultimately be persuasive. But the result it seeks is virtually the opposite of that suggested by the press release.

The press release slyly slips some of the cat out of the bag in its fifth paragraph, which says that "race should be allowed to be considered as only one of a multitude of personal factors." But the dominant message is (in the words of the first paragraph) that "race-based policies must be eliminated."

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Real Sexual Harassment

by Stuart Taylor, Jr.

Remember Graydon Snyder, the professor at Chicago Theological Seminary who got a sexual harassment reprimand for exploring the role of intent in sin by reciting a story from the Talmud about a man who falls off a roof, lands on a woman, and accidentally has intercourse with her?

Remember J. Donald Silva, the writing instructor at the University of New Hampshire who got a sexual harassment suspension for classroom use of sexual metaphors-like a famous belly dancer’s comparison of her craft to "Jell-O on a plate, with a vibrator under the plate"-that some female students found offensive? (Silva later won a judicial ruling that the suspension violated the First Amendment.)

Remember the student at Tufts University who was temporarily suspended for selling T-shirts inscribed with 15 reasons "Why Beer is Better than Women at Tufts"?

Such examples create a temptation in some quarters to dismiss reflexively claims of sexual harassment, and sex discrimination generally, as ideologically tinged whining over trifles by politically correct women whose actual agenda is censorship.

But now comes a timely reminder-from Normal, Ill.-of the real sexual harassment that stalks many women, especially blue-collar women breaking into traditionally male workplaces, who are often subjected to crude sexist vilification of a sort rarely experienced by pampered propagandists of PC paranoia who populate the professoriate.

Normal is home to the now infamous factory owned by Mitsubishi Motor Manufacturing of America Inc. The company was hit by the Equal Employment Opportunity Commission on April 9 with the largest sexual harassment suit in history, alleging rampant harassment of as many as 500 women at the plant since it opened in 1988.

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Victim Of A Ten-Year Vendetta

by Stuart Taylor, Jr

The American Lawyer

THE FUTURE LOOKED bright for Kenneth Treadwell as the Florida spring of 1986 melted toward summer.

So it came as "a major shock," he recalls, when he was slapped in the face with an ice-cold Miranda warning, as he walked into an interview with assistant U.S. attorney Lothar Genge and four other investigators.

Not that Treadwell hadn’t known this was serious business: Sunrise Savings and Loan Association-the client he had joined in 1984, leaving the West Palm Beach branch of Blank, Rome, Comisky & McCauley-had failed spectacularly, and been taken over by federal regulators in July 1985. The former top management was under investigation by a federal grand jury.

But Treadwell, who had been outside counsel during the critical events being probed, had been granted immunity and treated cordially by federal prosecutors during two prior interviews. He had consistently denied wrongdoing and saw himself as one of the good guys, cooperating with the investigation. Indeed, he had been kept on at Sunrise by the new, government-installed management to help with the salvage operation, winning high commendations. He was happily married, with three young children under 6 years old, and was a respected leader in his church and community.

All that seemed suddenly at risk on May 28, 1986, as the implications of that Miranda warning sunk in, and the interview proceeded. Genge bored in on some suspect transactions in mid-1984, when Treadwell was still a junior partner at Blank, Rome, helping Sunrise work out problem loans. For the first time, Treadwell recalls, the investigators evinced suspicions that he and more senior partners of the 190-lawyer, Philadelphia-based firm-right up to Marvin Comisky, the most senior partner of all-had facilitated fraud at Sunrise, the firm’s biggest client.