“Hi Sharon, This is Ken Starr calling,” said the cordial voice on my telephone Tuesday.
What I would have given to hear those words during the 1990s!
Then, Kenneth Starr was the independent counsel investigating allegations that President Bill Clinton had committed perjury in an effort to cover up sexual relations with Monica Lewinsky. I was covering the story for the Star Tribune’s Washington bureau. And, like every reporter in Washington, I begged for an interview with Starr.
He never gave one to me or anyone else while the case wound its way to Clinton’s impeachment in the U.S. House, based largely on the findings in the Starr Report.
Now, though, the former judge and solicitor general is dean of the Pepperdine University School of Law. And he was in Minneapolis for an academic event — the latest in the “Great Conversations” series sponsored by the University of Minnesota’s College of Continuing Education.
On stage with U of M Provost Thomas Sullivan, Starr praised President Obama’s credentials for choosing a successor to retiring Supreme Court Justice David Souter and said senate Republicans should not filibuster the confirmation.
“The president hasn’t called me yet,” Starr quipped.
Seriously, he said, Obama “has a very fine roster to choose from, and I don’t think there should be a filibuster even if you could mount one.”
Likely nominees, he said, include Judge Diane Wood of the U.S. 7th Circuit Court of Appeals in Chicago, Judge Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals in New York — and two Stanford Law School professors, Pamela Karlan and Kathleen Sullivan.
Note there are no men on Starr’s short list. Since the retirement of Justice Sandra Day O’Connor, “there is a profound sense of gender imbalance” on the court, Starr said.
Asked about the drawn-out Minnesota senate race between Norm Coleman and Al Franken, Starr said it is premature to say whether the U.S. Supreme Court should take any potential appeal once Minnesota courts have finished with the case.
“The Supreme Court of the United States does not sit to superintend elections,” Starr said. “There has to be a question of federal law, statutory or constitutional law.”
It is not difficult to envision a federal question coming up, he said, “but, honestly, we have to wait and see.”
You can see the end of this article for more notes from Starr’s appearance.
Meanwhile, here is what he had to say to MinnPost on the phone earlier in the day:
MinnPost: You served as independent counsel for investigations of government officials at the highest level including the president. Do you think there should be such an investigation now into whether U.S. officials committed to an illegal policy of torture and whether the people responsible for that policy should be prosecuted?
Starr: That’s an ultimate political decision. My own view is that in light of the fact that lawyers were interpreting treaties and laws of the country, as long as there is no demonstrable suggestion that the interpretations were in bad faith then the process should be one of criticism as opposed to criminalizing the process. So, no, I would be strongly disinclined to suggest criminal prosecution as to a Justice Department or White House counsel’s interpretation of the law.
(On stage, he said: “Remember, there are civil remedies. You don’t have to send someone packing off to jail. You don’t have to send them to the gallows to make your point … Are there non-criminal alternatives? Clearly those do exist here.”)
MinnPost: But what if laws were broken. Are you still “strongly disinclined” if that is the case?
Starr: One has to drill into what are the laws that were allegedly broken. These are matters of interpretation. Therein lies the difficulty — as opposed to thou shalt not rob banks, thou shalt not commit murder and the like — especially when we are talking about lawyers in their official capacities interpreting the powers of the government in responding to a crisis and in no way profiting from the enterprise, from the interpretation. I, again, for my part would be disinclined to invoke the criminal laws.
MinnPost: You have a long and distinguished career, but many Americans remember you solely for the Clinton-Lewinsky investigation. Do you have any second thoughts at this point about taking the job in the first place and about the investigation itself?
Starr: I was asked to take on the responsibility, and obviously it turned out to be exceedingly unpleasant responsibility in light of the unexpected evolution of the investigation. But, no, I don’t regret taking it on. Obviously it was a very unpleasant time for the country, for the president, for the president’s family, for all of us who were involved in it. But one of our abiding principles is that no one is above the law, and the law must, in fact, be obeyed. That, of course was ultimately what the investigation was all about.
MinnPost: But don’t you see a parallel between that line of thinking in that case and the question now of investigating alleged torture. Isn’t it true today as it was then that no one is above the law?
Starr: I couldn’t agree more that no one is above the law. The specific issue and the investigation in which I was involved was an allegation of deliberately failing to tell the truth under oath. Each situation has to be examined carefully and closely. But I couldn’t agree more no one is above the law.
The issue of the performance of agents and so forth is so wrapped up in interpretation. With no personal gain at all, it was a sense of what do we do for the country and what can be done by our agents for the country. That’s just my view and I realize comparisons can be made.
But the one thing I do know is that I was charged by the attorney general of the United States with conducting a particular investigation — and by the Special Division of the U. S. Court of Appeals — as to whether the president had, in fact, been truthful in his testimony at the civil deposition and the sexual harassment case that had been filed in federal court. So that was my charge. And until I know all of the facts, I’m not going to opine on the definite issues, but I’m disinclined to say that lawyers interpreting treaties and laws — who did not profit there from — should be subject eventually to criminal prosecution. As I say, I am disinclined to invoke the criminal laws for that kind of purpose.
MinnPost: You have worked on the defense for two death penalty cases. We’ve seen recent calls in several states for ending capital punishment or changing the rules governing its use. Do you see the Supreme Court weighing in significantly on this issue any time soon?
Starr: I doubt it. I think the Supreme Court will continue to monitor with care and concern the administration of the death penalty in the United States. There are profound concerns that all too frequently the death penalty is administered in a questionable way.
One of the most pressing concerns is the capability and performance of defense council at the initial trial stage. Very little has been accomplished by bench and bar and society more generally in assuring a capital defendant is represented by able and effective counsel, and so the system continues to suffer as a result of that systemic concern.
But I doubt that the Supreme Court will step in a more bold way. [Instead, it] will allow the democratic conversation continue to unfold as to the future of the death penalty more generally.
(At the U of M event, Starr said he is not “an abolitionist” on the death penalty but he feels compelled to help make sure the cases are handled properly.)
MinnPost: Another issue that is roiling through many states is same-sex marriage. You are helping to defend California’s ban. Do you see the U. S. Supreme Court stepping into this battle in any way?
Starr: Again, I would be surprised. This issue is working its way through the political process. Obviously certain courts have likewise weighed in. But we are seeing the conversation unfold in the traditions of representative democracy, and I would tend to think that the court would simply allow that conversation to continue to unfold.
MinnPost: Why are you involved in the California dispute?
Starr: I was asked to represent a particular client, the coalition of individuals and religious institutions that felt that Proposition 8, once enacted by the people, should in fact be the law of California. So I took on that representation in my individual capacity, not institutional capacity, when it reached the Supreme Court of California. I argued it in March, and we are expecting an opinion literally any day now.
(On stage later, Starr said he has “a feeling” that the California court will leave standing the state’s ban on gay marriage but that couples who said their vows before voters passed Prop 8 will remain legally married.)
MinnPost: President Obama voted while he was a senator to filibuster Justice Samuel Alito’s nomination to the court. Now he is hoping for a smooth replacement process for Justice Souter. Do you expect conservatives to give that to him?
Starr: I think he will likely secure a confirmation of whoever he identifies — if it is an individual who is qualified — and I am sure he would only identify a qualified candidate. I do lament the fact that the process of confirmation has become so uncivil.
The participation by senators in a filibuster of a highly qualified nominee is very unfortunate for the independence of the judiciary and for the health of the institution of the Supreme Court of the United States. But that was when he was serving as senator and responding to his own constituents. He has now, obviously, a very different role. He is the president of all of the people.
I would simply like to see less filibustering and more serious conversation about how important the work of the court is and the like. But I do hope that we will see in the process this summer a restoration of civility, more light and less heat. I view filibustering as the generation of heat and not the illumination of the path.
MinnPost: You are coming to Minnesota at a time when we are eagerly waiting the seating of a senator who — one way or another — could make a difference on any filibuster attempt and on the vote for the next justice. Your thoughts?
Starr: Politics is above my pay grade, and far be it from me to come into the great state of Minnesota and in any way be seen as expressing an opinion on the process that continues to unfold. For me, mum’s the word with respect to that process.
MinnPost: You could talk in general, though, about the value of having an effective check on the president in such appointments. These battles often are hard fought in the Senate.
Starr: They are not always hard fought. If one looks at history one sees a son of Minnesota, Warren Burger, replacing Earl Warren [a chief justice whose rulings generally were hailed by liberals and opposed by conservatives]. It was a time of great controversy for the court and for the country. It was the time of Vietnam. The civil rights movement was still extraordinarily active. There were many issues that divided the country. And yet, after narrowly winning election, President Nixon nominated a qualified person, a distinguished judge — full disclosure: for whom I was privileged to serve as a law clerk a few years later. He was confirmed 17 days after his nomination. So we have shifted as a country and as a political system, and the process of confirmation has become much more politicized. I very much lament that fact.
MinnPost: The last question I wanted to ask is about your own future. Have you settled permanently in California?
Starr: We are very much enjoying being California-based. I have been asked by the provost and president of Pepperdine to remain on as dean when I reach my five-year anniversary on August 1st this year. I’ve agreed to remain on, so I’m very, very thankful for that and very happy.
More from the U of M event
The Clinton-Lewinsky investigation never was mentioned. The session was billed as a talk on “The Supreme Court in American Life,” but a wide range of other topics did come up.
Here are Starr’s comments on some of those topics:
• The Supreme Court does not take enough cases each term. The workload was cut in half after the late William Rehnquist became chief justice. Provost Sullivan noted that Rehnquist once told a lawyer that “most of the great issues in law have been resolved.” Starr responded, “Well, he was the chief justice, umm — frequently wrong, never in doubt.” He quickly added, “I hope that was whimsical.”
• The Supreme Court has “an experience deficit” because all of the sitting justices are former appellate court judges. “No one has ever stood for an election … no one has gone out to face the voters,” Starr said. It’s something for Obama to keep in mind as he nominates Souter’s replacement.
• Justice Clarence Thomas hasn’t been given the credit he is due. While he rarely speaks on the bench, he is an impressive independent thinker and writer. “This man is a libertarian, and a lot of people don’t get that,” Starr said. “Maybe it’s because he had a pretty rough upbringing that he thinks about things from the perspective, ‘I have a duty to get it right. I am my grandfather’s son.’ The result is he’s incredibly original. He is looking at things in different ways.”
The court’s ‘Minnesota Twins’
Starr talked briefly about the two former Minnesotans on the Supreme Court, Justice Harry Blackmun and Chief Justice Warren Burger.
For Blackmun, writing the landmark opinion legalizing abortion, Roe v. Wade, was a “pivotally wrenching experience,” which reshaped the view of the world to stress individual liberty over the power of the state, Starr said.
Blackmun read some of the hate mail that came his way, and felt a “very, very powerful” weight as a result, Starr said.
Blackmun and Burger had been best friends, but they had an apparent falling out while serving in the court and came to be called the Minnesota Twins.
During two years of working constantly at Burger’s elbow and visiting his home too, Starr said he never heard “a discouraging word” about Blackmun, even while the breakup of the Minnesota Twins was “the talk of the town.”
“Justice Burger would always speak very kindly about his boyhood friend,” Starr said. “But they voted in very different ways.”