An Interview with Judge Ken Starr

By: Jacob M. McNeill

Jacob M. McNeill: “Give me a brief overview of your life experience and career. I’m wondering what your college experience was like. What sort of courses did you take? What got you interested in the law and politics/government?”

Ken Starr: “I was drawn to capitol hill. I was a transfer student to George Washington University. I majored in political science and history. As both Akhil Amar and Winston Churchill say, ‘study history, study history, study history.’ I came to a fork in the road and had to choose between graduate school or law school. I took the graduate school path and went to Brown University to pursue a PhD in political science. I was guided to Brown, and while I loved Brown and much of the graduate school experience, political science at that time, in the late 1960s, was starting to focus on being quantitative. The acting chair of the department had a sign posted on his office door [that said] ‘If you can’t quantify it, it’s not worth talking about.’ Graduate students were required to take constitutional law, and that really sparked my interest in constitutional law. That was a signal that law school might be the more appropriate destination.

The acting chair of my department was a consultant for the state department and his specialty was Sub-Saharan Africa. I told him I really needed a summer job. He said, “you would be perfect for the following program” and so I became a consultant contract program officer to the state department. So, I developed programs, and then traveled with nominees from our embassies in various sub-Saharan African countries. I had the time of my life, got engaged to that young lady right over there (points to his wife). I proposed and she strangely enough accepted. But at that point I had felt that I was destined for law school all things considered. So I go to the highest renowned law school that gave me the most money, and that turned out to be the Duke Law School. Everything was very much about human beings. And it was about how humans are governed. Law school was very demanding but I did well and was encouraged to do clerkships and that sort of thing.

Jacob M. McNeill: “You clerked for Chief Justice Warren Burger. How was that experience? Were there times when you disagreed with him or founds his legal reasoning or decisions objectionable? How does a clerk handle that situation?”

Ken Starr: “I viewed my role as having to assist the Chief Justice. I did not have sufficient confidence in my own judgement to override his. It was my job to assist him and I did that. I do not recall any terribly sharp disagreements during my two years of service with him. He seemed to me to be very respectful of history and tradition and I had already moved into the camp of being Holmesian [Justice Oliver Wendall Holmes] in that sense: the life of law has not been logic, it’s been experience. We want the law to be logical, but law emerges out of the experience of the people, and he was very much of that school. In any event, I think my high-water mark was actually sitting down with him toward the end of the first year when he said, “I would like you to clerk a second year.” So I knew at that point I was being of help to him. I felt, to be honest, this is not false modesty, that there is so much to learn in any clerkship, that by the time you learn it you’re out the door.

Here’s an anecdote the readers of your blog may like. I’m serving in the Reagan administration as Chief of Staff to the Attorney General. I’m making a presentation as a DOJ representative to the Virginia State Bar. Lewis Powell was a lion of that bar. He was a member of the Supreme Court. He’s in the audience. I’m making a presentation about DOJ policy he didn’t need to be there for, but he was very kind to stay. He comes up to me after and says, “would you be willing to join Mrs. Powell and I for lunch?” It turned out that the one question he had, was whether my second year of clerking for Chief Justice Burger had impaired or hampered my progress towards partnership in a firm. I said, “my best reflection is I was actually helped by the second year because I was continually exercising judgement, even though it wasn’t the real judgement, but I had to say to the Chief Justice, “here’s how I analyze the case and here’s how I encourage you to vote.” Well, I was exercising a sort of apprentice judicial judgement. In many ways, it really helped me, even though I didn’t have some of the tools of the trade that my collogues who started in firms right away had. But one quickly finds out how to develop the tools of the trade.”HHe comes uop

“I think in this country we should have more of a tradition of resignations on grounds of principle, not law clerks, but we’re seeing that unfold in the UK. the United States, we have relatively few high-level examples of people resigning as a matter of principle. My view is you should if you cannot serve whatever the administration is in conscience and carry out the policy, then you should resign.”

Jacob M. McNeill: “In terms of your time as Special Counsel during the Clinton administration, with all the twists and turn that the investigation took, reflecting on it, are you surprised the route your career took? Are you surprised that all that happened?”

Ken Starr: “Yes and yes.”

Jacob M. McNeill: “Would you do anything differently?”

Ken Starr: “Many tactical things. The one big thing would have been more resistant to add-ons to the investigation especially taking on very time-consuming additional assignments. This is pretty ancient history, but the travel office firings, for example. These were add-ons through the Attorney General. Above all, it would have been helpful if during the Monica Lewinsky events Janet Reno [the then Attorney General] had another Independent Counsel ready to go and pass that investigation onto a new Independent Counsel.”

Jacob M. McNeill: “I want to talk about Brett Kavanaugh.”

Ken Starr: “Great!”

Jacob M. McNeill: Obviously, he was in the spotlight recently. What are your thoughts on how his nomination and confirmation hearings played out?”

Ken Starr: “I don’t think it was good for the Senate, I don’t think it was good for the Supreme Court, and I don’t think it was good for the country. I think things should have been brought out sooner rather than later. I don’t mean to criticize the world’s greatest deliberative body [the United States Senate], but people who are trained in the law should be very sensitive to the process. Felix Frankfurter said, ‘the history of liberty is largely the history of procedure.’ The Senate has procedures and they should have been more closely followed. I decried the disruption that unfolded: the heckler’s veto. But now having said that, that’s part of the democratic process and you can choose to do that, it’s just not helpful. I do think there needs to be procedural fairness to the person making the complaint. She should be treated fairly and compassionately. She should be listened to with respect. I also think the nominee is entitled to procedural fairness as well. Now having said that, I know Brett Kavanaugh.  I love Brett Kavanaugh. I have worked with him in different settings and have known him to be a person of integrity and decency, and so I believe Brett Kavanaugh. I have never said a harsh word against Dr. Ford. I am not questioning in any way her in any way, her motives, but they’re just two different people with conflicting stories. I know one of them very well and have worked with one of them very extensively, and I believe Brett Kavanaugh.”

Jacob M. McNeill: “ What do you think about the general climate in The United States today surrounding sexual misconduct and do you have any concern that people may be presumed guilty before being proven innocent?”

Ken Starr: “I understand that this was not a trial and there is not presumption of life tenure. I think the values of our criminal justice system inform the way we govern the process. We want people to have the right to be heard and treated respectfully. But I do think that overall, all too frequently, there is a rush to judgement, We need to hit the pause button and make sure that we listen to both sides and weigh both sides carefully, especially in a quasi-criminal setting including Title IX on University campuses, I do think that the criminal justice values even though there is no criminal procedure, should have procedural fairness in place when there are serious sanction in place.”

Jacob McNeill ’21 is a Sophomore in Morse College. He can be reached at jacob.mcneil@yale.edu

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