David J. Garrow: Kenneth Starr's Boo Boo

Roundup: Talking About History

Kenneth W. Starr was a gullible and slipshod investigator. No, not in his all-too-thorough probe of Bill Clinton's dalliance with a White House intern, but seventeen years earlier, when he was the Reagan administration's point man in the background vetting of a Supreme Court nominee.

During the presidential campaign in 1980, Ronald Reagan had declared that if elected, "one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can find." A year earlier, Sandra Day O'Connor, then an Arizona Superior Court judge, had met Chief Justice Warren E. Burger, an inveterate political schmoozer, on a vacation outing. Soon thereafter, Governor Bruce Babbitt, a Democrat, promoted O'Connor to Arizona's intermediate appeals court. When the retirement of Justice Potter Stewart in June 1981 presented President Reagan with his first high court vacancy, Attorney General William French Smith already had O'Connor's name on his private short list. Starr, then Smith's top aide, later acknowledged that "there was a certain oddity to her being in the mix at all," since O'Connor was a "judicial unknown," but Reagan was intrigued by O'Connor's upbringing on an Arizona cattle ranch.

Starr flew to Phoenix to interview O'Connor, and then Smith called to invite her to Washington. On July 1, Reagan and Smith, with presidential advisers Michael Deaver and James Baker, met with O'Connor for forty-five minutes. Reagan had won the presidency as a fervent right-to-life supporter, and O'Connor was asked directly for her views. "She told Reagan she was personally against abortion," Joan Biskupic reports in her superbly thorough and perceptive biography. "She said she considered the procedure 'abhorrent.'"

When O'Connor's name was leaked to reporters as a possible nominee, anti-abortion activists objected, citing concerns about O'Connor's position as an Arizona state senator in 1970 on a bill that would have decriminalized abortion. The measure never came to a floor vote, but O'Connor had served on the committee that considered it. "There is no record of how Senator O'Connor voted, and she indicated that she has no recollection of how she voted," Starr wrote in a memo to Smith. Reagan and his advisers discounted the abortion opponents' complaints, and on July 7 the president announced O'Connor's selection. Journalists asked if he had personally confirmed O'Connor's right-to-life sentiments, and Reagan answered "yes." He was "completely satisfied."

But Starr had committed a huge error. On April 29, 1970, O'Connor had voted to repeal Arizona's anti-abortion law, and two prominent Phoenix newspapers publicly reported her vote. When asked by Biskupic to explain his oversight, "Starr said he had no reason to check local newspapers to see if her vote had been recorded. If Starr had taken such a step he would have discovered that the proposed legislation was front-page news and the subject of considerable controversy in Arizona eleven years earlier--and that O'Connor had voted for the measure to decriminalize abortion."

Instead of undertaking his own independent inquiry, Biskupic observes, "Starr had taken O'Connor's word for everything." In so doing, he had smoothed her way to a nomination that almost certainly would have been denied her had those old news clippings been discovered. But in those days Supreme Court nominees, even potentially pivotal ones, were not investigated with the rigor that journalists would deploy toward, or against, Harriet Miers and Samuel Alito twenty-four years later.

'Connor's status as the first female nominee to the high court certainly did not protect her from harsh criticism. The Nation lambasted O'Connor as "barely qualified" and complained that Reagan had chosen her "almost entirely because of her sex and not on the basis of individual merit." The Nation's editors further declared that "O'Connor's record is not even close to Supreme Court quality. She was not an exceptional lawyer or legal scholar, nor is she an outstanding judge." In front of the Senate Judiciary Committee, however, O'Connor acquitted herself flawlessly. Fred Barbash of The Washington Post described O'Connor as "the very essence of composure and self-confidence: even-voiced and even-tempered." She also reprised the denunciations of abortion that she had offered Reagan. She attested to "my own abhorrence of abortion as a remedy" and added that it "is simply offensive to me. It is something that is repugnant to me."

Biskupic observes that O'Connor's three days of testimony "revealed little," but she rightly notes that confirmation hearings, then as now, are "rituals designed to appease rather than to expose." No controversy over O'Connor's abortion record developed, and the Senate unanimously approved her nomination by a vote of ninety-nine to zero. ...

[This is part of a larger article reviewing biographies of David Souter and Sandra Day O'Connor: WHEN SUPREME COURT JUSTICES DISAPPOINT THEIR SUPPORTERS]

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