Supreme Court

How Bill Barr Kept Ken Starr Off the Supreme Court (Resulting in David Souter)

An interesting historical tidbit about the nomination of David Souter to the Supreme Court

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A recent episode of Will Baude and Dan Epps' Divided Argument podcast noted an interesting episode in judicial nomination history, reported in Jan Crawford's 2007 book Supreme Conflict and highlighted on Lawyers, Guns and Money at the time.

Back in 1990, liberal icon William Brennan retired from the Supreme Court, creating a vacancy for President George H.W. Bush to fill. President Bush ultimately nominated David Souter, largely at the urging of John Sununu and Warren Rudman. Among the other short-listers were Edith Jones (reportedly the runner up), Kenneth Starr, and Laurence Silberman.

Starr, who left the U.S. Court of Appeals to serve as Bush's Solicitor General had been an early favorite, but Bill Barr helped quash his contention for the seat. According to Crawford, Barr and Michael Luttig (who both held senior Justice Department positions at the time) were among those who opposed to nominating Starr. Their objection was that he was soft on executive power. In particular, they were upset that he had failed to argue that qui tam suits are unconstitutional, and convinced then-Attorney General Dick Thornburgh that this made Starr unacceptable.

Here's the material from pages 92-93 Crawford's book (highlighted in the above-mentioned LGM post).

The issue dividing [Bill Barr, Michael Luttig, and Starr] was a law that permitted private citizens to sue for fraud against the federal government [and receive a bounty]…Barr and Luttig thought the law infringed on presidential authority, the final straw in a series of court decisions eroding executive authority…But new soliticor general Starr concluded any challenge to the law would be quixotic at best. Barr and Luttig were furious that Starr wouldn't take their side. They came to think he rejected their position in part to avoid antagonizing Charles Grassley, a populist Republican from Iowa who had sponsored the 1986 amendments to the law and who served on the Senate Judiciary Committee. Consciously or not, Starr, they thought, had put his own interests above the president's, possibly because he was envisioning appearing before that very committee as a Supreme Court nominee.

The showdown over presidential power set a pattern which continued after Barr became deputy attorney general the next year and Luttig moved into Barr's old job. From that point forward, Starr was the odd man out.

[AG Dick] Thornburgh slammed the door shut that Saturday morning, insisting to Bush and other advisers that Starr was unsuitable for the Supreme Court. He suggested he felt so strongly about it that he was willing to resign.

[…]

That ended the discussion–and the Supreme Court prospects–of Kenneth Starr.

Concern for executive branch authority was also a reason some gave against nominating Edith Jones. Conservatives were very pro-Chevron deference at the time, and some within the Bush Administration argued that Jones would be weak on that issue. (How times change.) There were also concerns that nominating Jones would provoke more of a fight.

It is interesting to think how much would have been different had Starr been nominated instead of Souter. Assuming Clarence Thomas still got the next nomination, the Court would likely have overturned Roe in Casey. In addition, Starr would never have become an Independent Counsel, and it's unlikely Brett Kavanaugh would ever have investigated the Lewinsky affair.

So, if you are happy that President Bush nominated David Souter instead of Ken Starr, you should thank Bill Barr.

NEXT: Today in Supreme Court History: August 17, 1988

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  1. This post is a successful argument that Supreme Court decisions are a result of personal feelings, self interest, and bias. Its most powerful bias favors big government, from the Ivy indoctrination of all of them, followed by acculturation in the rent seeking capital of Washington DC.

    Starr investigated Clinton for lying about sex in a deposition, stupid lawyer shit, ridiculous to most real Americans. The real reason for this lawfare and harassment was that Clinton raised taxes on the rich. Starr consumed 1000 hours of Clinton’s time to fend off this lawyer attack. As a result, Clinton did not do enough about Al Qaeda after the fist bombing of the WTC. Starr was a major factor in 9/11. His lawyer role in causing 9/11 was covered up in the 9/11 Commission Report. Starr’s shenanigans changed this country for the much worse. The cost of 9/11 was $7 trillion. He is up there with Lincoln in lawyer damage to this nation. Starr is on the arrest list of lawyer hierarchy. One hour’s trial for insurrection against the constitution. Summary execution in the court basement on reading of the guilty verdict. Sentencing for insurrection should be changed from 10 years to summary capital punishment. That change would enable us to get rid of this internal enemy, the lawyer hierarchy. The same can be done every 20 years. To deter.

    1. This post is a successful argument that Supreme Court decisions are a result of personal feelings, self interest, and bias.

      This post is not an argument about Supreme Court decisions.

      1. David, aren’t you a lawyer? STFU. Nothing you say has the slightest validity.

        1. From the post. “It is interesting to think how much would have been different had Starr been nominated instead of Souter. Assuming Clarence Thomas still got the next nomination, the Court would likely have overturned Roe in Casey. In addition, Starr would never have become an Independent Counsel, and it’s unlikely Brett Kavanaugh would ever have investigated the Lewinsky affair.”

        2. From the post, “It is interesting to think how much would have been different had Starr been nominated instead of Souter. Assuming Clarence Thomas still got the next nomination, the Court would likely have overturned Roe in Casey. In addition, Starr would never have become an Independent Counsel, and it’s unlikely Brett Kavanaugh would ever have investigated the Lewinsky affair.”

          1. David believes in supernatural doctrines, is a worthless rent seeker, destroying $5 million in economic value every year he breathes. He is in out of control insurrection against the plain language of the constitution, a dangerous traitor.

    2. “Starr investigated Clinton for lying about sex in a deposition, stupid lawyer shit, ridiculous to most real Americans.”

      No, Starr investigated Clinton for violating the very law he had signed — a law that both enabled Paula Jones’ sexual harassment lawsuit *and* the her ability to bring in similar conduct with other women (i.e. Monica Lewinsky) as evidence of her claim.

      “[L]ying about sex in a deposition” is a crime — it’s called “perjury” and it’s worse if one is an attorney, which Clinton was.

      But one needs to remember that Starr was actually investigating Whitewater and related financial transactions. Maybe Clinton was involved in Cocaine being smuggled into the Mena airport, as was alleged in the movie _American Born_. Maybe there was all kinds of shady dealings in the Whitewater Law Firm, and maybe Vince Foster actually was murdered. (GSW to the head is inevitably messy if the victim is still alive — Foster’s wasn’t….)

      But for the sordid distraction, they may have found something more damning….

      1. Maybe maybe maybe… but all they actually proved was that he lied about sex.

        1. Maybe maybe maybe… but all they actually proved was that he perjured himself.

          FTFY.

  2. Conservatives were very pro-Chevron deference at the time, and some within the Bush Administration argued that Jones would be weak on that issue. (How times change.)

    In considering Constitutional questions, one should always ask, “What will be the result if my political/ideological opponents come into power?” Surprising how many on all sides of the spectrum fail to ask this.

    1. “one should always ask, “What will be the result if my political/ideological opponents come into power?”

      In my experience bringing this up, the stock response: Stupid X, that is a slippery slope fallacy. Look it up! (Not kidding, and I am always tempted to school yard, “No, you look it up!”)

      Though, considering second and third order effects, and likely (and nearly guaranteed effects, like party majorities) should be a NORMAL part of policy considerations. Considering first order effects only (.e.g, CBO “this is what the bill says it will do. Can’t consider how it will change behavior to score it.”) leads to a LOT of bad policy (drug, incarceration, tax, immigration, etc.)

      1. Kristian, what the left is going to find in 2023 is that having eliminated all of the procedural rights of the out-of-power party will come back to bite them when they are the out-of-power party.

        Abortion could be banned, nationally, via “budget reconciliation.”
        Pelosi is playing with fire — and doesn’t quite realize that…

        1. Dr. Ed 2 : Abortion could be banned, nationally, via “budget reconciliation.”

          It’s time for another edition of Remedial Ed for Ed!

          Using “budget reconciliation” as means to evade the filibuster is a tactic used by both parties. It has limited scope however, needing some direct connection to national finances. This would be a meaningless distinction in the world of weaselly politics but for the fact there is a judge: The Senate parliamentarian.

          This anonymous figure has already slapped-down the Dems on several “budget reconciliation” points already, including restricting Schumer to only one bill. This person will certainly have more objections still before a final bill is resolved. There is no suggestion whatsoever that the Democrats will ignore a parliamentarian ruling. Banning abortion by reconciliation isn’t remotely permitted.

          You should know all this, Ed…..

  3. Thanks, Bill Barr.

    1. Dodged a bullet here.

  4. Among the other short-listers were Edith Jones (reportedly the runner up), Kenneth Starr, and Laurence Silberman.

    Edith Jones would have been my first pick. Supreme Court jurisprudence would have been much different if she had been in instead of Souter.

  5. I always had a soft spot for Souter, although I most certainly understand why conservatives didn’t like the pick. He was a good jurist, and humble. But certainly not a conservative by any modern metrics.

    That said … there should never, ever, ever be any outpouring of sympathy for Ken Starr.

    Let’s set aside the Clinton thing. Seriously. Starr has somehow been involved in all sorts of terrible shenanigans, from covering up sexual assault at Baylor (and attempting to parse it with language that would make Bill Clinton whistle with admiration) to engaging in the very same marital affairs with which he pursued other with a Javert-like ferocity.

    What he lacked in legal acumen, he made up for in hypocrisy. This is the type of person who would sacrifice any ideal for power. This is the man who even Tom Cruise would look at, aghast, and say, “Woah, that’s thirsty.”

    The Supreme Court dodged a bullet.

    1. “Starr has somehow been involved in all sorts of terrible shenanigans, from covering up sexual assault at Baylor (and attempting to parse it with language that would make Bill Clinton whistle with admiration)”

      I must admit that this bothered me greatly — and I honestly don’t know what to make of Baylor.

      To apply for employment at Baylor, one must include “a letter of recommendation from your pastor” — while I could have obtained one, when I saw that I decided not to apply for a position there because I presumed that they thumped their Bibles a bit more than I’d feel comfortable with.

      Then they hire someone whom I can’t believe they hired…

      And then I read about Barr and the athletes.

      Does a winning sports team often behave badly? Don’t get me going about Coach Cal’s Criminals — who did. But I presumed that a purported “Christian” institution would care about victims at least a little more than they appeared to, and I did find that quite troubling….

      1. Uh …. um ….

        I genuinely don’t know how to respond. That’s … the closest thing to a regular post I’ve ever seen you write. So I will certainly give credit where it is due .

        Yes, all big-time sports programs are … well, not perfect. Baylor, though? That was extra-special not good. I don’t know if I can call it the absolute worst (there’s been some really really bad ones), but the combination of the crimes, the coverups, and the ostensible purpose of the university made it particularly galling.

  6. As a qui tam lawyer myself, I should point out that Starr was correct on the quixoticness of Barr’s argument, since the Supreme Court unanimously (on that point) upheld the constitutionality of the False Claims Act’s qui tam provisions in Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000).

  7. I’d say Starr went off the deep end, but I suspect that he began there. Even republican House members who were out to get Clinton were embarrassed by the number and nature of the charges Starr came up with in his report. They immediately shot down most of them, and told Starr in no uncertain terms that it was his job to investigate, not to charge. The guy clearly had delusions of grandeur.

    1. Out to get Clinton — our out to see that justice was done?
      There were both involved in Clinton’s impeachment.

    2. Starr is a completely loathsome figure, but there’s one way you can sympathize with him. By 1997 he had been after Clinton for three years, nearly twice as long as Mueller’s entire investigation.

      By then Starr knew every one of his inquiry subjects was a nothingburger – a pointless, useless, needless, meaningless dry hole. So he decided to bail-out & leave the post of Independent Counsel for a position of dean at Pepperdine University. Given Starr’s ethical limits, this was probably the bravest step he was capable of. Certainty he was too much a partisan hack to simply shut the whole mess down.

      But Starr’s timid attempt to escape failed. He was savagely eviscerated by his own tribe; criticism from the Right was scathing. For a man who intended to make a career snug in the bosom of Right-wing World, this must have been terrifying.

      So he returned for two more additional years (longer than Mueller’s entire inquiry). Starr must have been getting pretty desperate by the time he started trafficking in BJs, but his side had signaled what was expected of him, and this small man lacked backbone to do otherwise. Still, he had tried to escape.

      We should give him credit for that.

  8. ” It is interesting to think how much would have been different had Starr been nominated instead of Souter. ”

    Starr might never have had a chance to perform as a right-wing moral scold, then preside over Rape U.; defend Jeffrey Epstein; defend Donald Trump; defend tobacco companies; defend Blackwater (reprehensible mercenaries); or cheat on his wife with a subordinate.

    That wife turns out to be a similar hypocrite and loser, too:
    “In 1999, Alice Starr famously said she’d divorce her husband if she were in Hillary’s place, remarking that she would “rather not be married to someone who doesn’t love me enough to remain faithful.” “We took a vow to be faithful to one another when we married,″ she said of her own marriage, adding that they’d “lived up to that vow.″ In response to Hershman’s affair allegation, Alice Starr provided a statement through [right-wing mouthpiece) Merrie Spaeth affirming her marriage to Ken: “We remain devoted to each other and to our beautiful family.” ”

    Mr. and Mrs. Starr are a good match: Hypocritical, disgusting clingers devoid of character or any sense of shame.

    1. Kirkland is a terrible human being, Exhibit #4,293,718.

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