Category Archives: Major Print Outlets

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

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The Politics of Hanging Judges

by Stuart Taylor, Jr.

Buried in a little-noticed Feb. 22 decision by the Supreme Court is an illuminating statistic. It speaks volumes-although the Court pretended otherwise-about the incapacity of many elected state judges, in the current climate, to do justice to persons accused of (capital crimes.

"Alabama’s sentencing scheme has yielded some ostensibly surprising statistics," as Justice Sandra Day O’Connor delicately broached the matter in her majority opinion in Harris v. Alabama. "According to the Alabama Prison Project, there have been only 5 cases in which the [trial] judge rejected an advisory [Jury] verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life."

These numbers are more than "ostensibly surprising." They are stunning. Alabama’s trial judges override jury recommendations to spare the lives of convicted murderers almost 10 times as often as they override jury recommendations of death.

And it’s not just a one-state phenomenon. The same pattern holds in the other two states that allow elected judges to override jury sentences in death penalty cases-although it is especially pronounced in Alabama, perhaps because judges there have more discretion and face partisan elections every six years. In Florida, trial judges opted for death in 134, and life in only 51, of the 185 death penalty cases in which they overrode jury sentences between 1972 and. early 1992. In Indiana, the ratio was eight judicial overrides for death to four for life between 1980 and early 1994.

Why are elected judges dramatically more likely than juries to favor executions? After all, the same citizens who elect the judges sit on the juries- except that juries in capital cases, from which death penalty opponents have been systematically removed (for cause) by prosecutors, are likely to be less sympathetic to defendants than the typical voter.

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Marching With Hate

by Stuart Taylor, Jr.

Only people tortured by a terrible thirst could have been assembled in such numbers at the behest of so detestable a demagogue as Louis Farrakhan, the white-bashing, Jew-hating, violence-threatening, sexist, homophobic leader of The Million Man March.

The thirst is understandable. It’s a thirst for leadership, and for hope of breaking the cycle of poverty, despair, and self-destruction that so disproportionately afflicts African-Americans.

But how much hope can be derived from an event at which (according to a Washington Post survey of 1,047 people) 87 percent of the participants queried had a "favorable" view of Farrakhan? This is a man who just days before had bared his fangs by smearing Jews as "bloodsuckers," a man whose history is littered with the vilest kind of hate speech and visions of violence against Jews and other whites.

And how much reconciliation and atonement can be derived from an event at which souvenir stands did a brisk business in T-shirts celebrating the acquittal of a black man who (the overwhelming evidence shows) had viciously murdered two white victims?

To understand the void now being filled by the ascension of Farrakhan, we might start with a look at President Bill Clinton’s speech on Oct. 16 (Farrakhan’s big day). While making some reasonable (if pallid) points about the need for interracial understanding, the president displayed the sort of pious hypocrisy that has stripped him of any standing to exercise moral leadership when he lamented "unequal treatment" of black people by the criminal justice system:

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Looking Right at the Justices

by Stuart Taylor, Jr.

"Conservatives on Supreme Court Dominated Rulings of Latest Term." "High Court Rulings Hint Move to Right." "The Year the Court Turned to the Right." "The Conservative Majority Solidifies."

If these remind you of the headlines you were reading about three months ago, think again. They were actually taken from end-of-term wrapup pieces in The New York Times in 1984, 1988 (I wrote that one), 1989, and 1991, respectively. Go back to 1972, and you’ll probably find something similar.

So the headline on the July 2, 1995, New York Times wrapup-"Farewell to the Old Order on the Court: The Right Goes Activist and the Center Is a Void"-was not exactly unprecedented.

Nor were those on the 1995 wrapup pieces in The Washington Post ("Court’s Conservatives Make Presence Felt"), USA Today ("High court makes ‘dramatic’ shift: Fall schedule will test court’s conservatism"), and The Los Angeles Times ("1995 Rulings by Supreme Court Herald Dawn of Rehnquist Era").

The journalistic consensus, it appears, is not only that the Court is Turning Right, to borrow the title of Los Angeles Times correspondent David Savage’s fine 1992 book on the Rehnquist Court, but that it has been turning right for a long time, harder and harder as time passes.

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Why So Many Lawyer Jokes Ring True

by Stuart Taylor, Jr.

You may have heard the one about why some medical labs have started using lawyers instead of white rats in their experiments.

Three reasons: There are more lawyers than rats; lab technicians sometimes get attached to rats; and there are some things a rat just won’t do.

Like most lawyer jokes (and Polish jokes, and so on), this one depends on unfair stereotyping. But the punch line also rings a little bit true-truer, at least, than it would if the class being stereotyped were, say, bankers, or doctors, or corporate fat cats, or journalists, or even used-car salesmen.

It rings true in a way that helps explain why lawyers in this country-unlike those in Germany, or France, or Italy, or perhaps even England-have been so roundly vilified as a class, for so long, by so many people.

See, e.g., Will Rogers ("I have always noticed that any time a man can’t come in and settle with you without bringing his lawyer, why, look out for him."); H. L. Mencken ("[T]heir professional aim and function [is] not to get at the truth, but simply to carry on combats between ancient rules."); Carl Sandberg ("Why is there always a secret singing/ When a lawyer cashes in?/ Why does a hearse horse snicker/ Hauling a lawyer away?"); Ambrose Bierce ("Lawyer: One skilled in circumvention of the law…. Liar: A lawyer with a roving commission."); Mark Twain ("What chance has the ignorant, uncultivated liar against the educated expert? What chance have I….against a lawyer?"); Benjamin Franklin ("God works wonders now and then/ Behold! a Lawyer, an honest Man!").

Some leaders of the bar have suggested that lawyers are unfairly vilified because they often defend unpopular people or causes. That may be part of the explanation, but not the biggest part.

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Gingrich the Executioner

by Stuart Taylor, Jr.

When barbaric, demagogic, idiotic, patently unconstitutional proposals emanated from members of the once impotent Republican minority in the House of Representatives, it was no big deal.

But when such proposals spew from the mouth of House Speaker Newt Gingrich, the most powerful congressional leader in decades, they must be taken seriously. And one of his latest-a mandatory death penalty for importers of illegal drugs, enforced by mass executions of "27 or 30 or 35 people at a time"-is real cause for alarm. Despite the unlikelihood of any such proposal surviving judicial review, the fact that a savvy (if cynical) politician like Gingrich can predict that it would win popular approval by an 80-20 margin evidences the sad state of the body politic. So the bill that Gingrich plans to introduce in September should not be written off as just another boyish excess.

Here’s how he put his idea at an August 25 fund-raising dinner in Athens, Georgia:

If you import a commercial quantity of illegal drugs into the United States, it is because you have made a personal decision to get rich by destroying our children. I have made the decision that I love our children enough that we will kill you if you do this. The first time we execute 27 or 30 or 35 people at one time, and they go around Columbia and France and Thailand and Mexico, and they say, "Hi, would you like to carry some drugs into the U.S.?" the price of carrying drugs will have gone up dramatically. Perhaps Gingrich would like to commemorate the first of his mass executions by personally bulldozing 30 or so drug mules into a mass grave-sort of a Newt-style ribbon-cutting ceremony.

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Making Juries Look Like America

by Stuart Taylor, Jr.

‘State constitutional policies … require a trial court to consider racial demographics in exercising its authority … to change the venue of a criminal trial or to impanel a foreign jury."

So held the Appellate Division of the New Jersey Superior Court on June 12 in State v. Ambrose Harris, in which a black man is charged with raping and murdering a white woman. The court said that Harris-who had won a motion to import a jury because of inflammatory publicity in the racially diverse city where the crimes had occurred-had a right not to have the jury imported from a 98 percent-white suburban county.

Was the New Jersey court just crafting a rule for those rare cases in which venue is changed or jurors are imported? After all, a black defendant might not feel much better about facing an all-white jury if the reason was that his alleged crimes had been committed in a 98 percent-white county. So there is reason to wonder whether the New Jersey ruling may be a first step down the road toward some kind of right to a jury of one’s racial peers, enforced by racial quotas in jury selection.

Such quotas have, in fact, been urged by a few scholars, including Professor Sheri Johnson of Cornell Law School, who has written that black defendants should have a right to juries that include at least three black members.

Whatever the rules should be, it’s becoming increasingly clear that the jury system will be in grave peril if we cannot reverse our society’s drift toward ever deeper racial polarization and tribalism. The staggering racial divisions over the O.J. Simpson case-with 78 percent of whites in one recent poll believing him to be guilty of double murder, and 71 percent of blacks believing him to be innocent-do not bode well.

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Drawing The Line On Racial Gerrymanders

by Stuart Taylor, Jr.

When is race-based electoral districting required by the Voting Rights Act? When is it prohibited by the 14th Amendment? The law in this area is whatever justice Sandra Day O’Connor says it is. Her pivotal role was recently underscored by her brief but controlling concurrence in

Miller v. Georgia, 63 U.S.L.W. 4726 (June 29, 1995), the 5-4 decision striking down one of that state’s three majority-black congressional districts as unconstitutional.

Justice O’Connor’s handiwork is a jurisprudential mess-a confusing and indeterminate mélange of apparently conflicting statutory and constitutional doctrines, which provides little useful guidance to lower courts and amounts to a formula for endless litigation and political chaos.

Some of this confusion may be unavoidable. That’s because O’Connor-almost alone on the Supreme Court-seems to be struggling to steer a middle course between the Scylla of racial Balkanization and the Charybdis of black disempowerment. Her search for a necessarily indeterminate middle ground-albeit flawed in the execution by undue vagueness-seems the least flawed approach to a devilishly difficult group of issues.

Consider the alternatives: To O’Connor’s right, Justices Antonin Scalia and Clarence Thomas, with the substantial agreement of Justice Anthony Kennedy and Chief Justice William Rehnquist, are pushing a "colorblind Constitution" theory that could wipe out most majority-minority districts (and thus bring back all-white congressional delegations in many Southern states), that would demolish key provisions of the 1982 amendments to the Voting Rights Act, and that makes a mockery of the Scalia-Thomas professions of fealty to judicial restraint and to the original meaning of the Constitution.

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Flunking the Honesty Test on Preference

by Stuart Taylor, Jr.

There is much To be said on both sides of the affirmative action debate. But one of the most troubling things about that debate has long been the fundamental dishonesty-or, at best, obfuscation-resorted to by many advocates of racial and sexual preferences.

President Bill Clinton’s long-awaited July 19 speech on affirmative action is a case in point. Through sly semantic sleight of hand, the president sought systematically to deny or obscure what every honest student of affirmative action preferences knows: In a great many (and perhaps most) cases, such preferences discriminate on the basis of race or sex against whites or males, in favor of minorities or women who are no better-and often demonstrably less-qualified in terms of relevant skills and experience.

To illustrate, it’s worth deconstructing one sentence from the president’s speech in some detail: "There are people who honestly believe that affirmative action always amounts to group preferences over individual merit; that affirmative action always leads to reverse discrimination; that ultimately, therefore, it demeans those who benefit from it and discriminates against those who are not helped by it."

The president went on to say that such criticisms were wrong. He was correct in a narrow literal sense, but only because somebody stuck the word "always" into his speech text to save the quoted assertion from logical indefensibility.

Clinton’s clear purpose here, however, was not to make the trivial claim that affirmative action does not always involve elevating "group preferences over individual merit" or "discriminat[ion] against those who are not helped": It was to imply that such phenomena are relatively rare and abusive exceptions, not the rule.

If words are to be given their ordinary meanings, the president’s implication was false, almost by definition.

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Rethinking the Fifth Amendment (Again)

by Stuart Taylor, Jr.

When Timothy McVeigh was charged in April with the Oklahoma City bombing, something very revealing happened. McVeigh said nothing. He did not say, "I had nothing to do with it." He did not say, "You’ve got the wrong guy." In fact, he has never, to this date, said anything like that.

McVeigh’s nondenial is highly probative-indeed, it is what most convinces me of his probable guilt. But the jury at his trial will never be told about it.

Why not?

And if McVeigh fails to take the stand at trial to assert his innocence or explain where he was and what he was doing at the time of the murders with which he is charged, the prosecutor will be barred from commenting on his silence, and the jury will be instructed that no inference of guilt can be drawn.

Why not?

The answer, of course, is the Fifth Amendment provision that "[n]o person … shall be compelled in any criminal case to be a witness against himself," as it has been construed by the Supreme Court.

The constitutional language clearly gives every criminal defendant the right to remain silent at trial. The Warren Court and its predecessors, going back to 1886, extended the privilege to (among other things) pretrial proceedings and police station interrogations; stretched the meaning of the word "compelled" in the Fifth Amendment to require the familiar Miranda warnings and to bar prosecutors from making reference either to a defendant’s silence after arrest or to his or her failure to testify at trial; and mandated exclusion from evidence both of "compelled" pretrial statements and of any physical or other evidence (such as the location of a murder weapon or the names of witnesses) derived from such statements.

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An Old-Fashioned Conservative

by Stuart Taylor, Jr.

The salutary tradition of showing respect for the dead has temporarily overshadowed the less-than-flattering image that Warren Burger had among Washington lawyers and journalists, especially those steeped in the liberal-leaning culture of the law schools and the media during his 17 years as chief justice of the United States.

We were told by our professors and our newspapers that Burger was Richard Nixon’s judicial hatchet man, bent on rolling back the noble works of the Warren Court. We read in The Brethren that his brethren (and their clerks) mocked his pompous self-importance, resented his manipulative assignments of opinions, and disdained his middling intellect and pedestrian craftsmanship.

We groaned at his stuffily self-righteous speeches about the indignities visited on the legal profession by lawyer advertising, by cameras in courts, and by death row defense lawyers-whom he faulted for doing what any good lawyer in their position would do. We made fun of his more awkward judicial opinions. We tittered when he knocked the television camera out of the hand of a newsman who had pursued him into an elevator.

Across the ideological spectrum, conservative true believers came to think of Burger as an undependable compromiser more attuned to conventional wisdom and public opinion than to conservative principle.

There’s much truth in all this, and in the image of Burger as the chief justice from central casting, with a majestic white mane camouflaging a mediocre mind. But there were also some traits to admire in this sturdy, hard-working, fundamentally decent man.