The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.