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 t
