James Leroy Wilson's blog

Thursday, May 26, 2016

Ken Starr has Bush the Elder to blame

Ken Starr was demoted from President to Chancellor at Baylor University for its handling of sexual assault accusations against members of the football team.

I haven't read the independent investigative report that led to this. My guess is Starr took a hands-off approach to athletics as something beyond his expertise. As President, he was responsible, but may not have been morally culpable. That's why he was allowed to keep his tenured professorship.

Still, he must wonder how it came to this. He should be on the Supreme Court. Instead, he'll be remembered as the out-of-control independent counsel who investigated Bill Clinton's sex life, and overseer of a university that put winning ahead of justice for women.

And the only reason he had either job was because he wasn't on the Supreme Court.

He was well on his way, but President George H.W. Bush failed him.

Here's what happened. In 1990, Justice William Brennan retired. Several people were high on Clarence Thomas. There was already a black Justice sitting, Thurgood Marshall. Bush's appointment of Thomas would have confounded liberal opponents by giving the court two black seats, and thereby claiming that the quality of the legal mind, not race, was the main factor. 

But Bush passed on Thomas that year. And he passed on Starr, who clerked for Chief Justice Warren E. Burger, had been a federal appeals judge, and was the sitting Solicitor General. Bush chose the potentially less controversial David Souter instead. Souter became part of the Court's "liberal" wing.

Marshall retired the next year. Bush finally appointed Thomas, giving opponents ammunition that he was appointed only because he was black. The Anita Hill hearings were a result. I don't think they would have happened the previous year.

Ken Starr could then have filled the Marshall vacancy.

But Bush wanted no fuss either time. Souter was safer than Starr and Thomas in 1990 because he wasn't as well known. And in 1991, Thomas was "safer" than Starr because Bush felt he had to nominate a black person.

If Bush had appointed Thomas in 1990 and Starr in 1991, the Court would have become more solidly conservative, somebody else would have investigated Clinton, and somebody else would have become President of Baylor University.

Maybe things would been worse. Maybe Starr would have been ill-suited for the Court. But I suspect that's probably where he most belonged and where he probably would have done the least harm.

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