In Defense of Preference
April 06, 1998
The battle over affirmative action today is a contest between a clear principle on the one hand and a clear reality on the other. The principle is that ability, qualifications, and merit, independent of race, national origin, or sex should prevail when one applies for a job or promotion, or for entry into selective institutions for higher education, or when one bids for contracts. The reality is that strict adherence to this principle would result in few African Americans getting jobs, admissions, and contracts. What makes the debate so confused is that the facts that make a compelling case
The End of Privacy
February 16, 1998
"It's not their business," Monica Lewinsky allegedly told Linda Tripp, explaining why she was inclined to lie to Paula Jones's lawyers about her relationship with President Clinton, as her friend's hidden tape recorder whirled. "It's not their business." And Lewinsky was, of course, correct.
America in Thick and Thin
January 05, 1998
Civic Ideals: Conflicting Views of Citizenship in U.S. History by Rogers M. Smith (Yale University Press, 719 pp., $35) A few weeks ago, the Supreme Court heard arguments in a case called Lorelyn Penero Miller v. Madeleine K. Albright, and some of the drama of the case is encapsulated in the petitioner's name. Twenty-seven years ago in the Philippines, Lorelyn Penero Miller was born out of wedlock.
Men Behaving Badly
December 29, 1997
At the Supreme Court last week, during the argument in Oncale v. Sundowner Offshore Services, the justices seemed skeptical of the shipping company's claim that same-sex harassment could never be illegal under Title VII of the Civil Rights Act. Joseph Oncale, the oil-rig roustabout whose supervisor allegedly put his penis on Oncale's head, had sued for harassment, and the U.S. Court of Appeals for the Fifth Circuit held that sexual harassment doesn't include men behaving badly with other men.
December 01, 1997
Senate Republicans have blocked Bill Lann Lee's nomination to be assistant attorney general for Civil Rights on the grounds that his views are "out of the mainstream." Lee's editorial supporters, including The New York Times, denounce this as a "gross misrepresentation," and before examining his writings, I was prepared to believe them. But based on Lee's testimony to the Senate Judiciary Committee and on his record as counsel to the naacp Legal Defense Fund, it's hard to avoid the conclusion that Lee represents the least nuanced tendencies of liberal racialism.
Passing the Buckley
October 27, 1997
Buckley v. Valeo, the Supreme Court’s attempt to reconcile campaign finance regulations with the First Amendment, was dubious from the day it was decided in 1976. With memories of Watergate still fresh, the Burger Court assumed that preventing corruption of individual candidates by wealthy donors was the central evil that Congress had a right to avoid. But in the 1990s, the parties, rather than the plutocrats, became the stock villains of the reform drama.
October 06, 1997
Readers of this ideologically diverse magazine have been treated to a bracing range of opinion about whether or not Vice President Gore broke the law when he telephoned his supporters from the White House to ask for campaign contributions. Now that congressional Republicans are once again calling for an independent counsel, tnr has asked your legal affairs editor to examine the record as dispassionately as possible.
July 28, 1997
Since the Progressive era, this magazine has argued for judicial restraint as part of a broader argument for liberal nationalism. Judges should defer to the prerogatives of Congress and the president, the argument goes, so that popular sovereignty can serve as the engine of national unity.
May 05, 1997
A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia (Princeton University Press, 159 pp., $19.95) Original Meanings: Politics and Ideas in the Making of the Constitution by Jack N. Rakove (Knopf, 420 pp., $35) We are all originalists now. That is to say, most judges and legal scholars who want to remain within the boundaries of respectable constitutional discourse agree that the original meaning of the Constitution and its amendments has some degree of pertinence to the question of what the Constitution means today.
March 31, 1997
Spring fever is in the air at the Supreme Court as the justices prepare to hear arguments about the constitutionality of the Communications Decency Act on March 19. To familiarize themselves with the technological obstacles to finding pornography in cyberspace, some law clerks have obtained lists of especially salacious addresses on the World Wide Web and diligently browsed at their leisure.