[CTRL] Right-Wing Takover Of The Court Almost Complete

[William Shannon]

True believer
Widely regarded as a fair-minded moderate, Kenneth Starr comes from a
movement of right-wing judicial activists who are determined to revolutionize
American law -- and are succeeding.
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BY BRUCE SHAPIRO 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." 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. 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." 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. 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.

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. 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. "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.
Salon | July 3, 1998 Bruce Shapiro is the legal correspondent for The Nation
and a frequent contributor to Salon.



http://www.salonmag.com/news/1998/07/03news.html