RB,
Good article.
As Clinton matures into a master of foreign affairs, the Pepperdine Dough Boy and his ilk transform themselves further into a pack of dangerous buffoons:
<<<<Widely regarded as a
fair-minded moderate,
Kenneth Starr comes
from a movement of
right-wing judicial
activists who are
determined to
revolutionze American law -- and are succeeding.
- - - - - - - - - - - -
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
California attorney general, Meese created 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.
N E X T+P A G E+| How Clinton ruined all their plans
Have a Good 4th.
Lazarre |
