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The media rushed to convict Hillary Clinton of crimes -- with no evidence
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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.

T A B L E+T A L K Do Americans need to learn another language, or is English king of the world? Weigh in on multilingualism in Table Talk's Social Issues area D A I L Y+Q U O T E Liz Phair on life in Lillith land O N+O T H E R S I T E S Full coverage of Clinton's China trip at ABCNEWS.com R E C E N T L Y Did you ever see the president stop beating his wife? By Todd Gitlin More questions for Mr. Starr's interrogation of Sidney Blumenthal (07/02/98) A prayer for Owen Mean By Peter Kurth John Irving emerges as a capitalist windbag as class warfare erupts in Vermont (07/01/98) Former FBI chief says no to Starr By Jonathan Broder Former FBI chief William Webster declines to oversee a probe of key Whitewater witness David Hale (06/30/98) How the media convicted Hillary Clinton By Mollie Dickenson The media rushed to convict Hillary Clinton of crimes -- with no evidence (06/29/98) Behind the rhetoric By Jonathan Broder Salon talks to former ambassador James Lilley about the strategic issues that bind China and the United States (06/26/98) - - - - - - - - - - - - - - - - Browse the Newsreal Archives - - - - - - - - - - - - - - - -
		TRUE BELIEVER \| PAGE 1, 2 - - - - - - - - - - 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.