True believer

Widely regarded as a fair-minded moderate, Kenneth Starr comes from a movement of right-wing judicial activists who are determined to revolutionze American law -- and are succeeding.


Bruce Shapiro
July 3, 1998 11:00PM (UTC)

The past two weeks have proved devastating to Independent Counsel Kenneth Starr. First, the Supreme Court refused to overturn the ancient rules of attorney-client privilege simply because Starr wanted to review the files of the late Vincent Foster's attorney. Then on Wednesday, Starr received a stunning rebuke from U.S. District Judge James Robertson, who pitched out the window the tax-evasion charges Starr lodged against Webster Hubbell. Echoing what Starr's critics have claimed for months, Judge Robertson found that Starr had exceeded his mandate by prosecuting Hubbell on tax charges unrelated to Whitewater. Worse, he accused Starr of abusing his immunity agreement with Hubbell by going on a "fishing expedition" through Hubbell's finances that would have turned the president's former confidant "into the primary informant against himself."

These judicial setbacks, along with the high melodrama of Linda Tripp's grand jury testimony and the continued impasse between Monica Lewinsky and Starr's office (despite near-universal predictions when she ditched William Ginsburg that an immunity agreement was at hand), make it easy enough for the Washington press corps to continue viewing the Starr-Clinton confrontation in the narrowest present-tense frame. It's the sort of memory-free wallow that T.S. Eliot called "the ecstasy of the animals."

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But as Starr's investigative apparatus clanks onward, with no end in sight, it seems increasingly important to take a longer view of this political crisis. Who is Kenneth Starr and what legal and political forces does he represent? Clinton defenders have asserted that his investigation is part of a right-wing conspiracy against the president. But six months of collective fixation on Starr's investigative abuses obscures a much larger and undeniable right-wing conspiracy in which Judge Starr plays a leading role, one with implications far beyond the closed spin-cycle of Washington. This conspiracy -- in which Whitewater is just one act -- is the conservative campaign to remake American law.

To understand this real conspiracy's dimensions, and where Starr's obsessive pursuit of Clinton fits in, go back decades before Monica Lewinsky or the Whitewater real estate deal, to 1952-53. Bill Clinton is a child in segregationist Arkansas, Starr an even-younger minister's son in Texas. The Supreme Court is considering a string of desegregation cases, to culminate in a lawsuit brought by the parents of Linda Brown, an African-American grammar school pupil in Topeka, Kan.: Brown v. Board of Education of Topeka.

In the chambers of Justice Robert Jackson, one of the justice's clerks broods over the Court's march toward abolition of Southern states' race laws. The Jim Crow doctrine of separate-but-equal, the clerk wrote Jackson, was "right and should be affirmed" as the Supreme Court had done back in 1893. Liberal justices, mostly New Dealers like Hugo Black and William O. Douglas appointed by presidents Roosevelt and Truman, were engaged in "a pathological search for discrimination." The clerk advised Justice Jackson in a memo that, "It is about time the Court faced the fact that white people in the South don't like the colored people."

Desegregation is not the only issue raising this particular clerk's ire. A few months earlier, he had bristled at delays in executing Julius and Ethel Rosenberg, convicted of atom-bomb espionage. He couldn't understand, he sneered in a memo to Justice Jackson, "why the highest court in the land must behave like a bunch of old women" whenever it confronted capital punishment.

Justice Jackson's clerk -- at 27 years old, no unformed adolescent -- was William Rehnquist, today Chief Justice of the United States. As federal prosecutor Edward Lazarus notes in his recent book "Closed Chambers" (far more scholarly and reflective than its marketing as a former clerk's tell-all memoir would suggest), the disdain Rehnquist reflected in those memos to Justice Jackson would prove prophetic. By the mid-1960s, the specific issues that so angered clerk Rehnquist -- the civil rights movement and capital punishment -- would become flashpoints for a new generation of far-right lawyers. Bearing in one hand the club of state's rights, in the other the truncheon of law-and-order, these conservatives were determined to beat back the era's revolution in civil rights and civil liberties.

In the 1960s, the heyday of the Warren Court and the Great Society, the legal right wing seemed little more than an obscure coterie of reactionaries. All the more striking, then, how many of these lawyers are today household names.

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The key theoretician of this new legal conservatism was Robert Bork, then a Yale Law School professor. As early as 1964 Bork opposed the federal Civil Rights Act desegregating hotels and restaurants as "an unwanted intrusion on the right of individuals to choose with whom to associate." Bork argued against the Warren Court's expansion of the rights of criminal defendants and its activist engagement with social issues, proposing instead what came to be called the "original intent" theory of constitutional law: refusing to expand constitutional rights beyond what the documents' framers would have envisioned in 1789.

If Robert Bork was the conservative legal counterrevolution's Marx, its Lenin, its great tactician, was a California lawyer named Edwin Meese, Governor Ronald Reagan's closest advisor. As early as 1966, Meese made a point of holding out the promise of power and influence to young conservative lawyers who allied themselves with the Reagan camp; among his recruits, future Supreme Court Justice Anthony Kennedy. as chief of staff for then-Gov. Reagan, Meese was a principal architect of a statewide legal regime bounded on one side by anti-taxation, property-rights initiatives and on the other by hard-line public order law enforcement aimed at unsettled cities and anti-war protesters.

Rehnquist himself was a key figure in the conservative legal movement too, one of the prototypes even before his emergence on the Supreme Court. As the Oxford Companion to the Supreme Court points out, the future justice -- legal-affairs advisor to Barry Goldwater's 1964 presidential campaign -- committed his Phoenix, Ariz., law practice in the mid-'60s to opposing desegregation of public accommodations, and to challenging the qualifications of black voters at Arizona polls.

The legal right's first great moment of hope came with Richard Nixon: Abe Fortas, Lyndon Johnson's nominee to replace Earl Warren as chief justice, had been forced to withdraw amid allegations of financial impropriety; Nixon arrived in office with the unanticipated opportunity to name Minnesota conservative Warren Burger to the top judicial job. By the time of his 1974 resignation Nixon had named four of the Court's nine justices, among them Rehnquist, who in the Justice Department had distinguished himself by defending the White House's spying on protestors and other Nixonian abuses. To most observers, as the New York Times' columnist Anthony Lewis noted a few years later, "a counter-revolution was seemingly at hand."

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Yet to the relief of liberals and the fury of conservatives, it didn't quite work out that way. True enough, in 1975 the Court restored the death penalty, which had been banished a few years earlier by the "old women" of the Warren regime. But on other matters, Nixon's appointees Harry Blackmun and Lewis Powell proved themselves temperamentally conservative pragmatists rather than radical ideologues, with Rehnquist the sole occupant of the Court's far-right fringe. The Burger Court legalized abortion in 1973 with Roe v. Wade, an opinion written by Blackmun; granted its imprimatur to busing for school desegregation; declared the New York Times' and Washington Post's right to print the classified Pentagon Papers; banished public funding for parochial education and white-flight private schools. In the words of one scholar, the Burger Court turned out to be "the counter-revolution that wasn't."

Fast forward to 1981. Reagan had just won the presidency and was trying to hold together an uneasy coalition of right-to-lifers and other religious moralists, free-market libertarians and corporate interests bent on deregulation and anti-affirmative action whites first galvanized in 1968 by George Wallace. Amid much fragmentation, there is one project on which all these constituencies could agree: "dismantling the liberal judicial legacy of Earl Warren, redirecting the courts and returning to the president his strong, autonomous hand," as Lani Guinier later described it.

Meese and Reagan's advisors at the Heritage Foundation were determined not to repeat the disappointment represented by Nixon's Supreme Court appointments. They set out a two-pronged strategy to fundamentally alter the direction of the federal judiciary. The first prong was obvious to both the administration and its liberal antagonists: the president would appoint known conservatives -- ideologues akin to Rehnquist and Bork, rather than simply Republican loyalists -- to the Supreme Court. Bork's 1985 nomination fell victim to a coalition of unions, feminists and civil rights lawyers; but despite this setback, by the end of the '80s the Court was dominated by veterans of the conservative legal battalion.

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On Warren Burger's retirement, Rehnquist was elevated to chief justice, confirmed despite the fact that he had never recanted his views of "colored people" and desegregation. Next to him on the bench were Anthony Kennedy, who had worked with Meese in California; Sandra Day O'Connor, a property-rights-minded Stanford classmate of Rehnquist's and a former Arizona prosecutor; the brash libertarian Antonin Scalia, who earlier in his career had been an architect of corporate deregulation. George Bush would add to the Court's conservative ranks with Clarence Thomas, usually a Scalia vote-alike. Of all the Reagan-Bush justices, only "stealth nominee" David Souter finally disappointed his sponsors, emerging after the retirement of Justice William Brennan as the Court's most consistent champion of civil liberties and criminal defendants. (Souter's unconventional, sometimes solitary conscience was demonstrated again just last week when he was the sole justice opposed to a decency test for NEA grants.)

But Meese, Rehnquist and their allies also wanted their counterrevolution to prevail over the long haul: not just from the top down but at the legal grass roots. They wanted the future, not just the present, and that meant focusing on law schools. As early as the 1950s, Rehnquist had complained that the majority of Supreme Court clerks showed "extreme solicitude for claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business."

So in 1982, Meese, Rehnquist and other first-generation legal conservatives reached out to law students and encouraged the founding of a new organization: the Federalist Society. Funded generously by Richard Mellon Scaife and patrons, the Federalist Society became a national networking organization that nurtured young conservatives and swiftly became the crucial channel to Supreme Court clerkships and prestigious jobs in the Reagan administration. In "Closed Chambers," former clerk Lazarus outlines how Federalist Society clerks formed a self-described "cabal against the libs" to push justices in a rightward direction. Conservative donors like Scaife were encouraged to endow professorships and to fund conferences and training institutes to tutor judges in corporate deregulation and other articles of conservative legal faith.

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If Meese, Rehnquist and Bork constitute the progenitors of the legal
right, the conservative counterrevolution has over the last decade been
carried forward by a second generation of younger lawyers reared on
right-wing faith, their careers advanced through Reagan patronage and
through law practice backed by those same far-right donors. One of the
first products of this second generation was Clarence Thomas, the Reagan
administration's anti-affirmative action equal-opportunity lawyer,
appointed by George Bush to the Supreme Court as a replacement for Thurgood
Marshall.

But the real second-generation legal luminary was not Thomas: it was an
even younger lawyer named Kenneth Starr. Starr had clerked for Chief
Justice Burger in the crucial 1975 term in which the Court reinstated the
death penalty. Even on the legal fast track of former Supreme Court clerks,
Starr seemed always a stride ahead of the competition. Still in his 30s, he
was a leading Reagan administration lawyer, then a much-admired federal
appeals court judge of right-libertarian bent. Then as President Bush's
second solicitor general, Starr argued in the Supreme Court for the
imposition of an abortion "gag rule" prohibiting federally funded clinics
from counseling patients in the procedure, and for the repeal of Roe v.
Wade itself.

Unlike Thomas, whose rambling speeches to the Federalist Society and other
conservative venues often seemed like simplistic, eccentric imitations of
Bork and Scalia, Starr's scintillating, analytic intellect put him in the
forefront of emerging conservative legal doctrine. When he returned to
private practice after his stint as solicitor general, Starr became a
director of the Scaife-funded Federalist Society and Landmark Legal
Foundation; he taught constitutional law at New York University; through
his law practice he argued crucial cases on parochial-school vouchers,
tobacco regulation and other conservative interests. With a
temperament universally described as courtly, respected even by his
enemies, Starr's was the single name mentioned most frequently as any
Republican president's likely candidate for the Supreme Court, William Rehnquist's heir apparent.

By 1992, the legal counterrevolution sought by Rehnquist years
before, carefully nourished and stage-managed over four decades, seemed
nearly complete. True, neither Bork nor Meese sat on the Supreme Court. But
Rehnquist, Scalia, Kennedy, O'Connor and Thomas formed a conservative bloc
only occasionally divided on key matters, and joined often as not by John
F. Kennedy's unexpectedly conservative nominee Justice Byron White. Reagan
and Bush nominees dominated the lower ranks of the federal judiciary as
well. His legacy secure, the chief justice now openly talked of retirement,
of his ambitions for life off the bench.

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All that changed in 1992 with two events that shook the foundations of
the conservative legal movement. The first came on June 29. On the very
last day of its term, by a 5-4 margin, the Supreme Court -- the Rehnquist
Court -- reaffirmed women's constitutional right to abortion in Planned
Parenthood v. Casey. Over bitter dissents by the chief justice, Scalia,
White and Thomas, the Court majority -- with Justices Souter, Kennedy and
O'Connor taking the rare step of reading their jointly written majority
opinion aloud from the bench -- upheld the central findings of Roe v. Wade a
generation earlier. Roe's author, Justice Blackmun, near retirement,
remarked that "just when so many expected the darkness to fall, the flame
has grown bright"; while Rehnquist's dissent discarded any pretentions at
Olympian distance in favor of the acerbic, derisive tones he had brought as
a young clerk to desegregation cases decades earlier. As much as any
single case, the crusade against Roe v. Wade had defined the right's attack
on the federal judiciary. The Casey decision, in all likelihood securing abortion
rights for at least a generation, represented a colossal defeat.

And then, in November of the same year, Bill Clinton was elected president -- in part on
the promise, born of the national debate over abortion and over Clarence
Thomas, of reversing the Supreme Court's political direction. In terms of
judicial philosophy, the Clintons were everything Rehnquist had fought.
Hillary Rodham Clinton was a protégé of Thomas Emerson, a legendary Yale
Law School professor who in the 1950s fought McCarthyism and in the '60s
first defined sexual privacy, helped win the legality of contraception and
lay the groundwork for Roe v. Wade. Bill Clinton, however often he co-opted
conservative positions on economics and welfare, was a proud friend of
Southern civil rights veterans like John Lewis and Vernon Jordan. There
was talk of Mario Cuomo on the Court. Suddenly, two decades of conservative
judicial gains seemed in grave jeopardy.

It is impossible to know, of course, what went through Chief Justice
Rehnquist's mind as the election returns came in 1992. What is certain
is the step he took just a few weeks after the election. Rehnquist had
always been one of the shrewdest politicians on the court. Even as
associate justice he had been criticized for playing politics with his
office. Now, shortly before fulfilling his traditional responsibility of
swearing in the new president on the steps of the Capitol, Rehnquist moved
a piece on the Washington chessboard that was scarcely noted at the time
but which would have the most profound implications. In the fall of 1992, he
named a conservative federal appeals court judge named David Sentelle to
preside over the three-judge panel that appoints independent counsels.

It was Sentelle, of course, who would preside over the appointment of his
friend and former D.C. Appeals Court colleague Ken Starr as Whitewater
counsel, replacing the insufficiently enthusiastic Robert Fiske. Much has
been made of Sentelle's famous lunch with his North Carolina crony Senator
Lauch Faircloth and the judge's close relationship with Jesse Helms. Yet
it's Sentelle's relationship with Rehnquist -- who has reappointed him
twice -- which has been more important. What Sentelle has
brought to the job of naming independent counsels, with the chief justice's
blessing, is the specific view that an independent counsel need not be
nonpartisan.

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"A gross misunderstanding has arisen ... as to the meaning of
'independent,'" Sentelle wrote in 1996. The only standard that counts is
"independence from the administration under investigation, not an
independence from the entire American political system." With this sardonic
justification, Sentelle not only chose Bush administration lawyer Starr to
investigate Clinton, but to investigate Clinton's HUD Secretary Henry Cisneros
he named David Barrett, a Republican developer with close ties to the
Reagan administration's sleaziest HUD officials. Just a few weeks ago the
Sentelle panel (its other two members are semi-retired judges outside the
Washington loop) selected yet another independent counsel, attorney Ralph Lancaster of Portland, Maine, to
investigate Alexis Herman. Like Starr, Lancaster enjoys national respect in the profession -- he's
former president of the Trial Lawyers' Association; like Starr he has no
experience as a prosecutor; and like Starr, Lancaster is both a Republican
and an outspoken social conservative, active in the right-to-life movement,
who in 1991 noisily resigned from high office in the American Bar
Association over the organization's support for Roe v. Wade. (Herman richly
deserves investigation, and Lancaster is reputed to be a lawyer of
integrity; but that doesn't change Sentelle's scandalous pattern of
partisan appointments.)

While in 1992 Chief Justice Rehnquist
probably did not foresee the extent to which independent counsel investigations
would come to define the Clinton administration, he certainly knew that Sentelle could be counted on to pick ideological opponents of the president to conduct any investigations that might arise. Starr and to a lesser extent other Sentelle-appointed independent counsels have
contributed significantly to Washington gridlock in the '90s, which in particular has
frozen Clinton judicial appointments in the Senate, ensuring that a
Republican-dominated judiciary still defines the terms of legal debate.

Starr's pursuit of Clinton, far from an eccentric quest, embodies the
conservative legal revolution's disdain for the constitutional boundaries
imposed upon prosecutors, the constant prosecutorial envelope-pushing that
provoked Judge Robertson's angry ruling this week. And while Starr was dealt another setback by the Supreme Court on the hallowed attorney-client privilege issue, it steadfastly advanced Starr's broader legal agenda in other rulings.
In its recently completed term, the Court, still dominated by conservatives with only occasional
defections, continued to erode the rights of criminal defendants and
other cornerstones of the Warren Court legacy. This is the cause to which
Chief Justice Rehnquist and Kenneth Starr long ago pledged their legal
souls. It is a conspiracy whose reverberations will be felt long after
Monica Lewinsky vanishes from the legal landscape.


Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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