Category Archives: Major Print Outlets

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

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The Debate: Judge Bashing Redux

by Stuart Taylor, Jr.

We have collected all the presidential candidates’ statements about America’s recently discovered judge crisis, and fed them into a computer. The machine has peered six months into the future and projected some of the questions and answers in the Big Debate.

Q: I’d like to ask how each of you would change the federal judiciary. And Senator Dole, please explain whether you are here tonight as the Bob Dole who voted to confirm 98 percent of President Clinton’s judges, or the one who blames them for the crime problem and "the crisis in our courts."

Sen. Bob Dole: Bob Dole is here as the Bob Dole who lets Bob Dole be Bob Dole. And when Bob Dole is president, there will be no more liberal judges. No more moderates, either. Only Bob Dole judges-you know, here a Dole, there a Dole, everywhere a Dole Dole. No cowardly, craven, crime-coddling judges. No Democrat judges.

Bob Dole’s judges will be so tough,we won’t be able to build gas chambers and electric chairs and gallows and firing squads and lethal-injection get-ups fast enough. We’ll have to bring in Dr. Kevorkian to move things along.Bob Dole’s judges will pack guns under their robes and wear NRA membership cards like badges of honor.

President Bill Clinton: Me, too. Toughness and diversity, that’s what we want. But my judges will be tougher, and more vigorous and youthful too, and more supportive of Medicare and the minimum wage. And the problem is the Republicans not supporting these things, or our police, and not putting more cops on the beat-cops who can kill the criminals before they ever get to court, and I love it when they do that, I just want to hug them all.

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Life, Death, and Imperial Judges

by Stuart Taylor, Jr.

As I started to read the recent rulings of two U.S. Courts of Appeals discovering that terminally ill patients have a constitutional right to kill themselves with lethal drugs prescribed by any willing physician, I was reminded of Judge Learned Hand’s line about "Platonic Guardians."

I looked it up: "Each one of us must in the end choose for himself how far he would like to leave our collective fate to the wayward vagaries of popular assemblies," Hand wrote in 1958. "For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not."

Some of the nation’s best minds think that a legal rule authorizing physician-assisted suicide "erases a fundamental ethical line and opens medical practice to unconscionable abuse," in the words of the columnist (and lapsed psychiatrist) Charles Krauthammer. He adds that any such rule would open the way for intolerable pressure from self-interested relatives and others for "the elderly and infirm to take drugs to hasten death."

On the other side, some of the nation’s best minds stress that thousands of suffering patients desperately want and need the kind of help in hastening the end that-under current law-some doctors cannot provide, and others will provide only in secrecy, for fear of being prosecuted as criminals.

It is an agonizing public policy dilemma, and one of vast importance. Both elite and popular values on the subject are evolving at warp speed, as one ethical line in the sand after another is washed away by racing medical technology and soaring medical costs, and as ever more diabolical choices are inflicted on us all.

So why should the ultimate decision on this matter come from a bunch of judges, in the guise of divining some fixed meaning for all time from a 128-year-old amendment that has nothing explicit to say about any "right to die"?

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Brother, Can You Spare Some Fees?

by Stuart Taylor, Jr.

Whitewater may not be Watergate, but the Clinton White House has apparently surpassed even the Nixon White House in generating billable hours for the Washington white-collar defense bar.

At last count, nearly 40 current and former officials of the Clinton White House alone have found it necessary to retain counsel. The Clintons and at least one senior aide have also created the first legal defense funds in history for incumbent executive branch officials-an unfortunate precedent, but perhaps a necessary one.

The legal travails of the Clintonites, and of some Reaganites before them, raise a long-term problem that Congress needs to solve, lest it plague future administrations, too.

In the words of Alan Morrison of Public Citizen Litigation Group, "Some provision must be made so that vulnerable public officials not be left without means to defend themselves and that they not have to beg for money from those who appear before them or who otherwise are affected by their official actions."

The essential problem is that anyone taking a senior governmental position these days, especially in the White House, may end up in need of legal counsel no matter how honorably she conducts herself.

That wasn’t true 20 years ago. It’s a consequence of our current culture of hair-trigger resort to criminal investigations as the ultimate weapon in partisan warfare, and of the vast resources available to independent counsel to turn over every rock in search of evidence of crime. Government service, at least in the White House, now carries a significant risk of being hauled before congressional committees and grand juries, grilled under oath, and perhaps even accused of perjury or other crimes.

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A Car Is Not a Pirate Ship

by Stuart Taylor, Jr.

Indonesia-Lippo-Riady-Huang-Hub-bellgate. Taiwangate. Koreagate (II). Buddhist-Temple-Goregate. Filegate. Travelgate. Paulagate. Cisnerosgate Espygate.

Where to begin?

Some speculations: The man to watch will be Independent Counsel Kenneth Starr, who is still trying to build a case against the president or the first lady or both. The probability that Stair will accuse one or both of crimes seems below 50-50 at this point-but not by much. And there may be less noise than expected on the congressional front, given Republicans’ fears of exposing their own dirty campaign finance laundry.

While a whole new criminal investigation may well find grist in the rivers of cash flowing from the Far East into Democratic campaign coffers-via Clinton cronies who freauented the White House-the greatest threat to the president is the same old scandal that many write off as too complicated to interest (or entertain) the public: Whitewater.

The central questions on which Starr’s team of prosecutors seems to be focusing are whether either or both of the Clintons engaged in a criminal conspiracy with their now convicted former business partners, James and Susan McDougal, to avert bankruptcy for their Whitewater Development Corp. by keeping the McDougals’ foundering Madison Guaranty Savings & Loan afloat during the mid-1980s, and to obtain money by fraud from David Hale’s Capital Management Services Inc.; and whether either or both of the Clintons have engaged ever since then in cover-up activities-both in Arkansas and in the White House-including destroying and secreting evidence, obstructing justice, and perjury.

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A Car Is Not a Pirate Ship

by Stuart Taylor, Jr.

It’s hard to know whether to laugh or cry at the Supreme Court’s 5-4 decision on March 4 upholding the state of Michigan’s forfeiture of Tina Bennis’ half-interest in a family car.

Her offense was… well, nothing. Her husband was the offender. He had been caught in their car receiving oral sex from a prostitute, while parked on a Detroit street after ending his shift at a steel mill. Mrs. Bennis had been at home, wondering where he was, calling the missing persons bureau.

The Court did not hold that Mrs. Bennis had reason to know of her husband’s sordid little tryst. Nor did it rely on Solicitor General Drew Days III’s incredibly lame assertion (in an amicus brief) that Mrs. Bennis had not done enough to prevent her husband from using their car to betray her. Nor did it question her claim that she had recently paid for most of the $600 car with her own hard-earned money from baby-sitting and other chores.

Rather, the Court held in Bennis v. Michigan that none of this mattered. The state not only could confiscate and sell the car (as Mrs. Bennis conceded), but could use the proceeds of her $300 share to pay its costs and keep any money that might be left over. All this, done under the authority of a state nuisance statute aimed at purging neighborhoods of prostitution, was consistent with due process of law.

This result was dictated, Chief Justice William Rehnquist held for the majority, by some precedents dating back to the era of pirate ships and privateers. Widely regarded (at least until Bennis) as having been undermined by more recent decisions, those anachronistic precedents allow governments to forfeit the interests of innocent owners of properties used for illegal purposes, based on the outmoded legal Fiction that the property is somehow the guilty party.

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The Right Way to Curb Fees

by Stuart Taylor, Jr.

Stung by growing interest in an intriguing proposal for curbing contingent fees on early offers of settlement, the personal injury bar and other lawyers have mounted a ferocious counterattack with the approach of California’s March 26 primary election (when the proposal will be on the ballot).

A lot of their arguments have been so crude as to evidence both "the transparent self-interestedness" and "the ineptitude" of some members of the plaintiffs bar, in the words of Professor Stephen Gillers of New York University Law School.

But the debate has also featured some serious and substantive critiques of the proposal-not least by the same Professor Gillers. The hard question is whether these arguments make out a plausible case that it would do more harm than good.

Proposition 202, as it is called-and for which I have tentatively expressed enthusiasm in this column ("Tort Lawyers vs. Consumers," Jan. 29, 1996, Page 23)-would cap contingent fees at 15 percent of any settlement offer made by the defendant within 60 days of a claimant’s demand for compensation; if the claimant rejected the offer, the lawyer would remain free to charge whatever otherwise lawful percentage the claimant agreed to pay of that portion (but only that portion) of any eventual recovery that exceeded the original offer. The proposal would apply in all tort cases except class actions.

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Free the Rodney King Judge

by Stuart Taylor, Jr.

Could something good finally come from the brutal, racially charged, videotaped beating of Rodney King that shocked the nation five years ago?

That depends on whether the Supreme Court seizes the opportunity, in two cases that the King beating spawned, to restore some humanity and balance to the federal criminal sentencing process.

The Court could do this by making it clear that in cases like these, which involve extraordinary mitigating circumstances, federal district judges have enough leeway to show convicted defendants some mercy, and to treat them as individuals-rather than as numbers to be crunched through the arcane formulas of the Federal Sentencing Guidelines.

The irony is that the defendants appealing for mercy in the cases at hand are Stacey Koon and Laurence Powell, the two former Los Angeles cops who were convicted by a federal jury of violating King’s civil rights. The Court heard arguments in the cases, Koon v. United States and Powell v. United States, on Feb. 20.

Koon and Powell were released from federal confinement last December after serving the 30-month terms (minus time off for good behavior) ordered by U.S. District Judge John Davies. But the U.S. Court of Appeals for the 9th Circuit held that Judge Davies had let the two off far too easily when he granted them "downward departures" that spared them more than half of the 70 to 87 months of imprisonment suggested by the sentencing guidelines. Unless they win their Supreme Court appeals, the ex-cops will apparently have to go back to prison for three more years.

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Time of Testing for Kenneth Starr

by Stuart Taylor, Jr.

The most important lawyer in America this year is Kenneth Starr, the Whitewater independent counsel.

Starr has the awesome responsibility of passing the most definitive official judgment that we will get in this election year on whether President Bill Clinton and first lady Hillary Rodham Clinton are lawbreakers, or liars, or both. And it’s time Starr began working at that job full time and resolving the key questions.

This has already taken longer than it needed to, perhaps in part because of Starr’s part-time status. In an era of deep public cynicism about government, it will take consummate skill, wisdom, balance, and attention to detail to bring the investigation to a satisfactory conclusion. And Starr must operate under conditions that won’t make it easy for his work to inspire public confidence:

Starr is a politically active, conservative Republican, former solicitor general with ambitions to return to high office-whether by winning a Supreme Court appointment, by running for the Senate, or otherwise-and thus has an incentive to please the Republican leaders who are now bent on driving President Clinton from office.

Starr has expanded and prolonged an investigation that began more than two years ago, and was proceeding more expeditiously under his predecessor, Robert Fiske Jr. Starr had no prosecutorial experience. And he has continued to make very big bucks working part time for private clients, including a conservative foundation that has also financed some of the president’s most virulent critics, as well as tobacco clients and others that are locked in combat with the Clinton administration on various fronts.

Given all this baggage. Starr must work especially hard to dispel suspicions that his million-dollar-a-month investigation is tainted by a subtler brand of the partisanship than pervades the parallel probe being conducted by Sen. Alfonse D’Amato (R-N.Y).

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The Dangers of Judge-Bashing

by Stuart Taylor, Jr.

You may not have realized that the Supreme Court-even after a decade under Chief Justice William Rehnquist-is a liberal "judicial dictatorship" that "has centralized control over every moral, political, social, and economic issue in the country," as part of an "intellectual elite that believes the prevailing social order of middle-class America is deeply flawed, unjust, and irrational."

That’s what Patrick Buchanan has been telling Republican audiences as he campaigns for the presidential nomination. He’s also been asserting that the chief "beneficiaries of the Court’s protection" are "members of various minorities including criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers."

And Republican true believers seem to lap it up, as did those assembled at the Heritage Foundation, in Washington, D.C., for the Jan. 29 Buchanan speech quoted above.

Not to be completely outdone in court-bashing, faltering front-runner Sen. Robert Dole (R-Kan.) declared in his Jan. 23 response to President Bill Clinton’s State of the Union address that "our liberal courts" are "[at] war with our values," so that we must (yet again!) "untie the hands of our police."

Who is he talking about? Sandra Day O’Connor?

Never mind that Republican presidents appointed nearly two-thirds of all 790 federal judges, including seven of the nine Supreme Court justices. Republican presidential aspirants are once again running against the courts, as they have done ever since Richard Nixon’s campaign in the 1968 election.

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Tort Lawyers Vs. Consumers

by Stuart Taylor, Jr.

Dear Fellow Attorney,

On March 26, 1996, your future as a lawyer will be at stake! There will be two initiatives on the [California] ballot that will end the tort system as you know it. If passed, they will affect all tort cases and eliminate virtually all cases involving motor vehicles. They are the pure NO FAULT AUTO INSURANCE ACT and the LAWYER CONTINGENT FEE UMYTATION ACT.

… No one will be handling automobile cases if this passes! Even if neither you nor your firm handles such cases, the impact on all attorneys and consumers should be obvious.

… [By] drastically reducing the number of filings…[the contingent fee proposal] will effect [sic] everyone in the tort system!

We believe most attorneys in California view those measures as bad for consumers and all others involved in the Civil Justice system.

"All others": Those are the key words in the last sentence of the above excerpts, which come from a mass mailing by the state’s main association of plaintiffs lawyers, the Consumer Attorneys of California (CAOC), formerly the California Trial Lawyers Association.

This mailing has been used to solicit secret PAC contributions from large numbers of business lawyers who represent tort defendants. It is a blatant appeal to the mutual self-interest of lawyers in perpetuating the profits they reap by litigating against one another at their clients’ expense.

The most unusual and salient fact about the tort system in this country is that more than 60 cents of every dollar expended by defendants and insurers goes not to compensate injured plaintiffs, but to pay for transaction costs-led by both sides’ legal fees.