TED KOPPEL
(Off Camera) And joining me now, Kenneth Starr. He's the dean of the Pepperdine University Law School. He was the independent counsel on the Whitewater investigation of the Clintons, US Solicitor General under the first President Bush and a judge for the US Court of Appeals. Let's talk first of all, Judge, about these assaults, some of them actually physical, most of them these days, though, verbal. I, I noted at the very beginning of the program, going back to the days of, of, of the calls for the impeachment of Judge Warren that it's not new ...
KENNETH STARR, FORMER FEDERAL JUDGE
Right.
TED KOPPEL
(Off Camera) ... to this country to have these kinds of assaults. Nevertheless, it seems to be particularly widespread and vitriolic these days. Your, your response.
KENNETH STARR
Yes, the stakes are very high. Feelings are running extremely high. But you're so right. Chief Justice Warren was the subject of calls for impeachment. William O. Douglas was, as well. But there is, I think, now a more focused set of issues and concerns that are leading a number of our political leaders to be very, very stringent in their comments and, and criticisms. And I think it does raise issues with respect to the independence of the judiciary that we need to be very mindful of.
TED KOPPEL
(Off Camera) Well, let's parse that a little bit. I, I don't think any judge would complain about being criticized. None of us is above criticism. But when the calls come, explicitly or implicitly for impeachment, not because a judge has committed any crime, but because the judge may hold a, a set of views that are, that are inconsistent with those, of those calling for the impeachment, what do you think of that?
KENNETH STARR
I think it's unfortunate. I completely agree that as a coordinate branch of government, the judiciary is appropriately subject to criticism. That's our system. Justice Brennan put it very well in a different context when he said, in a democratic society, debate should be robust, uninhibited, open-ended and it's gonna make us uncomfortable. That is good. But where we do, in fact, step over the line, in my judgment, is when we say, or our political leaders say that we so fervently disagree, that we think that impeachment is appropriate or necessary. When those judges are, whether right or wrong, exercising their independent judgment, under Article Three of the Constitution.
TED KOPPEL
(Off Camera) So, if, if Majority Leader DeLay were to come to you and say, Judge Starr, I've always admired you, you think I need to stifle it for a while? What would you tell him?
KENNETH STARR
I would say, criticize but criticize in the spirit of Justice Brennan. Be robust but don't go all the way over to say that a conscientious judge or justice, exercising his or her judgment, should be impeached or, or to call for impeachment.
TED KOPPEL
(Off Camera)What ...
KENNETH STARR
-I, I would say moderate the tone a bit.
TED KOPPEL
(Off Camera) When you were quoting Justice Brennan a moment ago, you referred to his admonition that debate should be open-ended. Which, of course, in the framework of the US Senate, is what the filibuster is, is all about. What are you views on the filibuster, as it relates specifically to judicial appointments?
KENNETH STARR
Well, the Senate has the raw power and has, in fact, used it once famously, in the process of considering the proposed elevation of Abe Fortas to the Chief Justice-ship. But I think it's imprudent and unwise for senators to invoke this important device. I think it is more apt, more appropriate for legislation but not for, for judging, I think, or for ruling on judges and voting on judges. I think that does trench on the independence of the judiciary. But even more so, I think that in our system of separated powers, the President does deserve a vote on his nominees, up or down. And especially when we're talking about the courts of appeals. We're not even talking about the United States Supreme Court.
TED KOPPEL
(Off Camera) -Expect, I think we are talking here about the US Supreme Court, aren't we? I mean, it, it is everybody's expectation that everything that is going on right now is just sort of a dry run for what is assumed will happen sometime, if not in the next few months, then certainly in the next year or two. And that is that President Bush will have one, two, possibly three appointments to the Supreme Court. So, what happens in the US Senate now is exceedingly important. Would you go so far as to do away with the filibuster?
KENNETH STARR
I would not do away with the filibuster, in terms of Rule 22. But I would say, be judicious in its application. And I don't think that that's been happening. And I regret that.
TED KOPPEL
(Off Camera) So, you're, you're opposed to the invocation of the filibuster, in this case. But you wouldn't go so far as to get rid of it.
KENNETH STARR
I'd be very cautious about getting rid of it. I think that the filibuster rule's a part of our traditions. But I think it needs to be, like a lot of tools in the tool chest, very cautiously used.
TED KOPPEL
(Off Camera) Judge Starr, always a pleasure, thank you very much for joining us.
KENNETH STARR
My pleasure, Ted.
Koppel clearly doesn't ambush Starr. The conversation starts out discussing the heated rhetoric over judicial decisions, and then moves into the filibuster. But Starr never says it shouldn't be done, only that we should be cautious. He clearly draws a line between using it for judicial nominations and using it over legislation. And when he talks about it being "part of our traditions," he may have in mind its broader use, not this specific application. In fact, he says that it's never been used before in this way, which pretty much rules out judicial filibusters as being "part of our tradition."
I think it's not as clear as Rush would like, but if Starr's actual position is somewhere between where Kaus places it and where Rush puts him, it's much closer to Rush's view.
