Thursday, June 18, 2009

Kenneth Starr Praises, Offers Support for Sonia Sotomayor

Kenneth Starr continues to express praise for Supreme Court nominee Sonia Sotomayor. It is difficult to miss the irony of Starr, an icon of infamy among Democrats, endorsing Sonia Sotomayor, whom many conservatives view as an icon of infamy. But as a law school Dean (at a school trying to climb in the rankings) Starr cannot afford to alienate powerful judges -- or their supporters.

Starr made very generous statements regarding Sotomayor during an appearance on Fox in late May. Here are some clips from the transcript:
But the key is, what was her record as a judge? And her record as a judge, from everything that I've seen, is a very fine record.

She's been to our campus twice over the last couple of years, and she's worked very hard with incoming judicial law clerks. She's really very energetic, committed to the system. But I will say this. One of the most characteristics of a Justice is that she be humble, that she be modest in her approach to the Constitution. And that, I think, is what the confirmation hearings are really going to come down to. . . .

[Empathy is] an important quality for judges sitting in family court and the like. But my word, when we're talking about the interpretation of the Constitution of the United States, we don't want someone who has an attitude of harshness. But on the other hand, we don't want to have someone who's attitude is the plaintiff always wins or the defendant should always lose.

So evenhandedness, fairness, impartiality -- those are the enduring characteristics and qualities. But when it comes to interpreting that document, those 20 pages and then the amendments, we want someone, it seems to me, who is going to always be modest, always listening carefully to the lawyers, listening carefully to her colleagues, and so forth. And I have no reason to believe that Justice, if she is confirmed, Sotomayor will not be that kind of judge.
In addition to these statements, the Mother Jones blog reports that Starr offered himself as a reference for Sotomayor at a luncheon today:
[Starr] said that he "thinks very well of [Sotomayor]." He noted that he has not written any official endorsement letter for Sotomayor but that no had asked him to do so—suggesting he would if requested. Starr said that he has told more than one US senator that he supports her nomination, but he wouldn't identify which senators he has spoken to about Sotomayor.
With Mel Martinez, Laura Bush, George H.W. Bush, and Kenneth Starr supporting Sotomayor, it seems that this process is moving to cruise control.


andgarden said...

Hopefully not without the critical questions of the left being addressed e.g. where is she on privacy, and what does she think the 14th Amendment means?) Though probably. . .

Darren Lenard Hutchinson said...

I mean -- without the distraction of pathetic antics.

Anonymous said...

Dear Mr. Hutchinson: You write: "But as a law school Dean (at a school trying to climb in the rankings) Starr cannot afford to alienate powerful judges -- or their supporters."

That statement tests at 200 proof cynicism, sufficient to crack your glass eyeball, burst your suspenders, and set your hair afire. It is pleasing to see that you agree with Starr's legal performance as Independent Counsel, which is why you take his comments on SS's legal qualifications seriously, right?

Bush41, the man who appointed Souter? What else is he going to say?

SS's nomination is on track, though the GOP will have plenty of opportunity to pin her down to statements no one will believe. I can then run a contest to see how quickly she dumps her confirmation testimony. Think she'll turn her coat faster than Clarence "I never had a discussion about ROE before I came to these hearings" Thomas?

I too, would like to hear your thoughts on the systemic slaughter of Inspectors General by The One. The Walpin shooting has gotten more attention because of the characteristic mean spiritedness The One's myrmidons used to do it: "He's a senile old fool, and should be replaced with better public servants like Senator Robert Byrd, or Justice John Paul Stevens." But his case is far less worrying than that of Neil Barshofsky, the Inspector General charged with watching the TARP program. Neil is watching a much bigger pot of money, with far more potential for corruption than Gerald is. Best not wait too long for that evolution. After all, when The One's policies blow up and lead to a mass slaughter of Democrats, the GOP congress of 2010 can start all sorts of investigations, complete with hearty belts of that 200 proof cynicism you've been giving us here at the DISSENTING JUSTICE bar...

Sincerely yours,
Gregory Koster

liberal dissent said...

Systemic? How many other Inspectors General have been fired?

And you are basically saying that the President, who has gone out of his way as to not to be seen getting revenge on political opponents, has abandoned this approach to punish someone who filed a complaint against a minor Obama ally, months after the case came to a legal conclusion resulting in little lasting damage to that ally.

Do you realize how paranoid you sound? The sarcastic "The One" you throw out also severely undercuts your credibility.

You also seem to be ignorant of the fact that a Bush-appointed US attorney filed a complaint against that inspector general over wrongdoing involved in that exact case. But anything to attack Obama, huh?

Darren Lenard Hutchinson said...

Greg: I did not agree with Starr's performance as Independent Prosecutor -- for the very reasons that Justice Scalia outlined in his dissent to the Independent Prosecutr statute in Morrison v Olson. It became the political nightmare over petty issues that Scalia predicted. This does not mean that everything Starr says or does is unprincipled or dangerous.

I have already posted on the Inspector General issue, and I think Liberal Dissent pretty much sums up how I feel about your question. Calling something "systemic" when it only happened once, is not only factually incorrect but it "severely undercuts your credibility."

Also, Media Matters has written on this issue, and the facts are still unfolding, as I suspected. As Liberal Dissent states, a US Attorney had already filed a complaint over the IG. Also, the Politico ran a story reporting that a person at the meeting where he was "confused" confirmed the statement. As I said, if the facts reveal that Obama did something wrong, I will criticize him (just as I do in my recent post on gay rights). I will not, however, invent criticism just to write something.

Anonymous said...

Dear Mr. Hutchinson: Many thanks for your response. You write "This does not mean that everything Starr says or does is unprincipled or dangerous."

What principle do you use to determine what Starr says is 24 karat, instead of unpincipled or dangerous? You earlier remark that deans of Law Schools On The Make don't want to antagonize judges (i.e. must suck up to judges so grads of On The Make U can gets jobs clerking), if true, enables us to value Starr's endorsement at it's true value, i.e. about as much as a pile of books predicting doom when the Y2K phenomenon shuts down all our computers...

"Systemic": this statement was imprecise, but not the word itself. The statement is imprecise as applied to the universe of IGs. It is dead on as applied to The One's attitude toward following the rules that everyone else is chained to. The notion, contra Churchill, that "one case is not enough" is silly. The test that The One is failing is firing those IGs who are giving him a hard time. He has already done so with Walpin, canning him without following procedure. I would think that this firing, regardless of the merit, should bother you because the essence of teaching law is a nominal respect for procedure. Think also of The One's history:

a) The butchering of Alice Palmer when he first ran for political office in 1996.
b) The solemn agreement that he would get together with McC in the 2008 election and jointly take public money to pay for their campaigns, and then slugging McC who was dumb enough to think The One really meant it.
c) Being a "fierce advocate" for gay rights, and then slugging them with the notorious Justice Department brief and stalling on Don't Ask Don't Tell repeal.
d) The nominating of all sorts of dubious characters with tax problems for high office.

These four items are the talismans to judge if "systemic" is the right word. It is too early to judge if all Inspectors General who displease The One should take out extra life insurance and have their wills in order, before they are accused of being senile and obstructive. But I'll stand pat on my bet that The One is cutting corners and will pay a high price for it. Not from the liars in the press who far more often than not, grovel. But from those, left and right, who are offended by corner cutting that dresses up in moral pretensions.

The case of Neil Barofsky is far more worrisome. Forget partisan differences for a moment. The TARP program involves colossal amounts of money, and dam little transparency. It could easily become the "Teapot Dome" that would break the back of a Presidency. To be stiffing Neil as the Treasury tried to do, with the firing of Walpin in the It's well known that The One views details with distaste. Not for him drudgery or grinding away. This makes him exceptionally dependent on his appointees. But as Geithner, Daschle & Co. show, they aren't fond of detail either. Or they are shifty eyed goddam liars in Harry Truman's phrase, feigning laziness to escape the consequences of chiseling. It may be that TARP will be Geo. W.'s revenge on The One.

LiberalDissent is characteristically wrong about a "Bush appointee" US Atty filing a complaint against Walpin, but I'm running out of space, and want to dissect LibDes's heavy footed infelicities, so that will have to wait for a separate post.

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Greg - I was waiting for you to say Obama is not a U.S. citizen! I have criticized him often, but your repeated use of "The One" puts an unnecessary emotional tone in your argument.

Also, your argument that Liberal Dissent is wrong about the US Attorney complaining about the IG (admittedly) needs elaboration. Please explain.

I do not feel it is necesary to recount the abuses of Ken Starr. But for a prosecutor to leak information to the press, collect information solely for the use of a partisan impeachment effort, hold out the threat of prosecution under circumstances that most prosecutors would never pursue ("perjury" in a settled civil lawsuit), only fulfills Justice Scalia's warning about the Independent Prosecutor statute (detailed in his dissenting in Morrison v. Olson). As a Dean, I find his comments are probably less partisan -- not less accurate. Naturally, a Dean would have nice things to say. But, if he were just a political hack, he could engage in the same type of vicious and distorted smear campaign as politicians who oppose her. Perhaps the Deanship is keeping him honest.

Anonymous said...

Dear Mr. Hutchinson: Oh, for heaven's sake! Why should liberals have all the fun?! "The One" puts an unnecessary emotional tone in my argument? Is it worse than this: this

(complete with halo)

Or this:

Evan Thomas maundering about The One standing above the world like God.

No no, I had to listen and read far too much of this bunkum in 2008. The President is prone to this sort of preening, and the press, in general, not only goes along with this, but squirts pure oxygen on the flames, threatening to burn us all up!

I wish the Prez and Sarah Palin would release the Prez's full birth certificate and Trig's full birth certificate so we could get past the idiotic "he's not a natural born citizen" argument. There are far more important questions to answer. For instance: I know for a fact, I read it on the Internet, that the Prez's pants are made of the finest asbestos, so his tail won't burn a hole in the seat! How's that for a custom made paranoia, as opposed to the idiotic mass paranoias the Prez has to face?

Starr is now to be trusted because "the Deanship is keeping him honest?" My God! Look what happens when deans are honest:

Dammit I've run out of space again. Worse, blogspot will not accept tags, hence the enormous direct html references. Off to another post!

Sincerely yours,
Gregory Koster
(not of CUNY)

Anonymous said...

Dear LiberalDissent: Sorry to be so tardy dresponding to your 6/19 comment. Onward:

First, I think we are on opposite sides. I don't think I'm wrong to say that you are an Obama backer, strongly in favor of him in general, possibly disagreeing with him on some issues. I am the reverse. I hope he fails in what he is trying to do domestically, because I think it would be a colossal disaster for the nation. In foreign affairs, I fear he will be even worse. We both can't be right; we both may be wrong. Anyway that is where we are.

Here's the statement of yours I object to:

"You also seem to be ignorant of the fact that a Bush-appointed US attorney filed a complaint against that inspector general over wrongdoing involved in that exact case."

Some facts: the United States Attorney's office (USA) for the Eastern District of California filed the complaint. Until January 4, the USA was McGregor Scott, nominated by Geo. W. in 2003. He resigned, and has not yet been formally replaced. The Eastern District has been given over to an acting USA, Lawrence Brown. Brown was the First Assistant USA, Scott's #2. But he wasn't a Bush appointee. Don't believe me> Consult the PLUM BOOK , in the Department of Justice section. Brown is a career official. It is possible that when Scott was confirmed, he asked the Justice Department to bring Brown in as his #2, but I don't know that. More importantly, you don't either, or least have not proven it.

Next point: USAs do not typically work their way up through the ranks. They come in from outside. Scott, for example, was District Atty. for Contra Costa County. But perhaps Brown likes the idea of being USA. What better way to show his availability and loyalty to the new boss than by bashing Walpin? It's been known to happen. See: L. Patrick Gray, who became acting head of the FBI on Edgar Hoover's death. You can find an account of his career by looking in the dictionary under the words: "Fiasco" and "Bootlicking."

Can I prove that Brown is Gray? No, but time will tell. How? By showing the merits of the complaint Brown has filed against Walpin. My bet is that the complaint will collapse. Why do I think this? Well:

a) "Confused?" If confusion is a cause for being canned, bring on the impeachment of "I've been to all 57 states" the Prez.
b) the underlying imbroglio, of Sacramento Mayor Johnson, here looks funny. I find it mighty peculiar that Brown, acting USA, rushed through a settlement with Johnson between January and April, but now has to backtrack because, well, maybe we didn't see all the evidence....Whaddaya know.

"Anything to attack Obama?" you challenged me at the end of your comment. You might be right. But I think "anything to attack Obama" will likely be a better bet than blind loyalty. Don't believe me? The candidate for the presidency tossed campaign finance reform to the wolves during the campaign. He's doing the same to gays now. Watch the proprietor of this blog, who is far from blind. He may do better than either of us.

Last note: your monicker is out of date. "Dissent" is a confession that you can't persuade a majority. Them days ain't no more for the Left. The Prez is the most liberal since Lyndon Johnson, probably Franklin Roosevelt. The present Congress has a larger Democratic majority than the Republicans have ever had since 1929. As for the Court, the anointment of Sonia Sotomayor and Her Resentments shows which way the wind is blowing. Let the Democratic program blow up and there will be no question about who is responsible. Get a new monicker for this heroic age. Might even try signing your own name and backing your own ideas.

Sincerely yours,
Gregory Koster
(not a pseudonym)

Darren Lenard Hutchinson said...


Dissent is not a confession that you cannot persuade a majority. It is a statement that you disagree with the majority. There is value in dissent and argumentation on their own terms -- regardless of whether anyone is moved.

Finally, It is not necessary to question a reader's use of a screen name. People use screen names on line for many reasons, and all participants on this site must respect that.

liberal dissent said...


You are splitting hairs, I think, distinguishing between appointed by the Bush justice department and appointed by Bush. The fact remains he was a Republican appointed by a Republican administration, and an administration notorious for demanding political loyalty from its US attorneys.

And you mistake the nature of my handle; my dissent refers to dissent against the left, by a leftist. I am a supporter of Obama because I like (most) of the actions he's taken during his administration, but I have no problem criticizing him. I know you want his administration to fail, dramatically, but I don't think you realize the risk this country runs at two failed administrations in a row.

Anonymous said...

Dear LiberalDissent: No, this is not hair splitting. Brown's position as First Assistant USA was NOT a presidential appointment, nor even a "Bush Justice Department" appointment. His position as 1st AUSA is a career position. If either Geo. W. or the Bush Justice Department "appointed" him they are violating the Civil Service Act that has been in effect for more than a century. That's a crime, for which someone could go to jail. If you are correct. What evidence do you have that Brown was appointed in violation of the Civil Service Act? For that matter, what evidence do you have that he's a GOPer? His biography page at the US Atty's site says nothing about it. It mentions that he was with the Ventura County District Attys office, but again, as a professional, not as a politician. Do you have any membership in any branch of the GOP? Have you found a time where he ran for office as a GOPer? Do you have any evidence beyond his coming to work for the Justice Department in a career position in 2003? If that's all you have, you haven't proven that he is a GOPer. I myself don't know, but think he is not. Consider this proposition:

Let's suppose you are right, that Brown is a GOPer, and has been appointed by "an administration notorious for demanding political loyalty from its US attorneys." (Your words.) How is he acting in this case:

a) Mayor Johnson has been found to have misspent $867,000 and change of federal funds.
b)But Brown is willing to settle for $400,000.
c)Why settle for less? Is it because Johnson is broke, not having the money, nor having any prospects of repaying it in future. That's a dam alarming fact to know about the Mayor of Sacramento?
d) Or is it because without settling the charge, Sacramento is not going to get any federal relief dough unless Johnson resigns? That's playing politics with a vengeance.

I say that if actions a-d are the actions of a loyal GOPer, then the word "loyalty" has no meaning. It seems much more likely that Brown is on the make, sucking up to his bosses so he can make his acting USA position permanent.

Besides, if Brown is capable of turning his coat so fast and furiously, why on earth would The One want him in his administration?

No no, show me the proof that a) Geo. W. or his Justice Department apppointed Brown in violation of the Civil Service Act,a crime and b) Lawrence Brown is a GOPer, loyal to Geo. W.

I don't think you can do either task, but stand ready to say I was wrong if you can.

I'm obliged to you for your explanation of your handle. It was silly for me not to realize that "liberal dissent" really means you support Obama except when you criticize him because you want him to succeed while retaining the privilege of dissent...Excuse me, I'm getting dizzy and must sit down.

We have different notions about what "failure" is. For me Obama will fail if he gets his program (Nationalized health care, cap and trade as examples) and will take the country down with him. I think it likely you are 180 degrees away from me. Time will tell, particularly if Obama succeeds.

Sincerely yours,
Gregory Koster

Anonymous said...

Dear Mr. Hutchinson: You write, "Dissent is not a confession that you cannot persuade a majority. It is a statement that you disagree with the majority. There is value in dissent and argumentation on their own terms -- regardless of whether anyone is moved."

Dissent does have that value. It is the value of trying to accomplish something. But not many would rate such value above a majority. The big payoff comes from success. As Hughes, CJ, wrote: "Dissent is an appeal to the brooding spirit of the law of another day." What he didn't write is that usually such appeals fail. Most dissents are not later turned into majorities. It is one thing for academics to disagree with one another. That's what you and I are doing on this blog. It may have benefit if either of us learn something, which has certainly been true on my side. But in the real world, it's majorities that count. To take an example that may resonate: how much value would BROWN v. BOARD OF EDUCATION have as a dissent instead of a majority?

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Greg: What do you have to say about the actual LANGUAGE of the case? Second, Thomas's dissent lays out the arguments for a state to make when it challenges Section Five. Without a statutory hook, Thomas will get at least three other justices to agree with him. You are not reading the case and not making arguments that reflect prior practices of the Court. But I guess I cannot expect you to do that.

As for Brown, the case did not have as much weight that people assign to it. Social change requires much more than a court opinion, and court opinions come from much more than just intellectual exchanges of the justices. Conservatives use Harlan's dissent in Plessy just as much as they use Brown. So your point is much more complicated than you acknowledge.

liberal dissent said...
This comment has been removed by the author.
liberal dissent said...


Look at the language in , which clearly describes Brown as being appointed.

And there are not one but actually two statutes that allow the appointment of acting US attorneys, 28 U.S.C. s 546 and 5 U.S.C. ss 3345 to 3349d. I would be curious as to what provision of the Civil Service Act you believe was violated.

You also made the following statement:

I'm obliged to you for your explanation of your handle. It was silly for me not to realize that "liberal dissent" really means you support Obama except when you criticize him because you want him to succeed while retaining the privilege of dissent...Excuse me, I'm getting dizzy and must sit down.

I'll be honest; I find it simply bizarre. It confuses you that I can, on the whole, support someone while occasionally criticizing things he does wrong. You seem to be implying here that this is somehow logically impossible.

And "privilege" of dissent? Dissent isn't a privilege, it's a right. It's also a duty.

You also seem to be conflating "the left" and "Obama". These are not the same things. Obama isn't especially leftist, anyway.

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