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Being Ken Starr

A Candid Conversation with the Solicitor General, Lawyer, Judge, Professor, and Dean

by David Hiller

Ken StarrIf you know two things about Ken Starr, it might be that he moved to Malibu, California, to take the helm at Pepperdine University School of Law in 2004.If you know one thing about Ken Starr, it's probably something related to the Whitewater Investigation.

Ken and I are old friends, having worked together in the Department of Justice nearly 30 years ago. With Ken in Malibu and me in Chicago, Illinois, I called him up to talk about his storied career, his tenure at Pepperdine, and whether he still wants a seat on the Supreme Court.

Hiller: You have had one of the most successful and incredibly varied careers in law and public service. Did you plan it this way?
STARR: No, I was very fortunate and blessed. I was a complete ignoramus in law school about professional opportunities. I knew nothing. Happily, an associate dean took me under his wing and guided me toward clerking. It was clerking for a wonderful federal judge, David Dyer, that proved to be a springboard for training and also understanding public service opportunities.

Did you have other mentors or advisors along the way?
Without being told, "You sure do need a mentor, and you need one badly," I think I began sensing that it was wise to identify with a senior person of accomplishment and integrity. Thus I was mentored by Judge Dyer, and by the second judge for whom I was privileged to clerk, Chief Justice Warren Burger. It was through Chief Justice Burger that I came to love the Department of Justice, where I was privileged to serve for two tours of duty.

How did you come to be in the Department of Justice for the first tour?
A senior partner of the law firm where I was at the time, William French Smith, was very close to Ronald Reagan. I had come into Bill Smith's orbit, and even though we hadn't worked closely together, after the election he tasked me with various responsibilities in Washington, which I was very happy to carry on.

Did your early years in the Reagan Administration have a lot of influence on your career?
By virtue of my experience as a law clerk and then remaining close to both my judge and to Chief Justice Burger, it was natural in the Reagan Justice Department to be thinking about the judiciary and judicial appointments.
David, you remember working on a Supreme Court vacancy when the justice for whom you served as a law clerk, Potter Stewart, made it known to Bill Smith that he would be stepping down at the end of the October term in 1980.
So being involved in the process of identifying potential candidates, working collaboratively with you and others, such as the now Chief Justice John Roberts; our friend, Judge Carolyn Kuhl; and our friend Hank Habicht, we all collaboratively worked on the question of the Supreme Court vacancy and the vacancies on the Federal Court of Appeals. I was in the arena where judges were being selected. Happily I wasn't in the room--or the vote might have gone negatively because I knew my weaknesses all too well--but I found myself nominated by the president of the United States to go on the great court of appeals where Chief Justice Burger had served with such distinction.

You mentioned the young John Roberts, now chief justice of the United States, who worked as a special assistant with you in the Justice Department. Did you foresee this kind of future for him?
We certainly foresaw the likelihood that he would make a very fine judge, but I don't think any of us had the audacity or temerity to think one of our numbers was actually going on to the Supreme Court of the United States, other than our senior officers such as Ted Olson and Rex Lee. We were in our 20s and 30s, and we certainly did view John as someone who in the fullness of time would make a spectacular judge, but I did not have the foresight to see him succeed the chief justice for whom he had clerked, William H. Rehnquist.

You mentioned a number of people who were in Justice at that time, Ted Olson, Rex Lee, Rudy Giuliani, and many others. The number of luminaries from the Reagan Administration is extraordinary. How do you explain the convergence of so many people who have gone on to do so many important things?
I think Bill Smith had a tremendous eye for individuals with legal talent and also a deep commitment to public service. The country already had a lot of talented lawyers. He found people who had a desire to serve the public.
Rudy Giuliani is a wonderful example of that. As a young lawyer, he became the number-three person at the Justice Department, yet he stepped down, not to go into private practice, which he could have done and it would have been very lucrative, but he took a pay cut to return to his hometown to be the United States attorney for the Southern District of New York. Of course Rudy went on to serve as mayor of New York City. That's the kind of person Bill Smith wanted to attract into the Justice Department, people of great ability, but also people who are motivated by public service.

Let's fast forward a bit. What brought you to Pepperdine?
The phone rang one day when I was serving in the solicitor general's office and the person on the other line was my then boss Attorney General Dick Thornburg. I substituted for him at his request as a judge of a moot court competition on Pepperdine's campus.
I knew of Pepperdine by reputation but had never been on campus. When I came out from Washington, D.C., I was struck by several things. One was how gracious and collegial and welcoming the community was. Secondly, I was impressed by the extraordinarily high caliber of the student advocates. I thought that the briefs were extremely well done, and they were all done by students, and the advocates were at a very high level of accomplishment. I've been privileged to judge moot courts at a number of law schools around the country, including the Potter Stewart Competition at Yale Law School, and these Pepperdine students were the very finest.
The very kind now Dean Emeritus, Ron Phillips, a legendary leader of this law school who served for 27 years, invited me to come teach a two-week course. So, my vacation in 1993 was traveling to Malibu from Washington, D.C., with my family and staying here in the community. And that was it. I was absolutely in love with Pepperdine at that stage.

Can you talk about the impact on the School of Law of being part of a Christian university?
It is an ennobling feature in that it is a welcoming and very ecumenical community that nonetheless is very openly and thankfully Christian in its orientation and worldview. I think that translates into the most intense desire to serve of any law school I have ever seen. All law schools have very good programs and are mindful of the obligation of the legal profession to be of service; it is a matter of degree and intensity.

Is there a conflict between Christian values and what we sometimes talk about as neutral principles of law?
I think that the Christian worldview sets the stage for carrying out one's calling or one's vocation, and if anything, gives fuller vocational meaning to what one studies and what one does, than would be the case, with all respect, with a purely secular perspective.
One sees the eternal value in a community that is governed by law and appreciates the remarkable and rich background of American law in English common law sources. These common law sources are based on very important principles in Western civilization that all servants--including the monarch himself or herself--was under both God and the law. These are principles that are very easy for us not only to understand, but to embrace in the modern setting. That includes a foundational freedom: the freedom of conscience.
Working in areas of freedom of conscience and religious liberty is just one of the vital areas where this institution--as a Christian institution--is increasingly involved.

But is there a temptation, when an attorney or judge is called up to interpret the open text of law, to read one's own religious values into them that you need to guard against?
I think to the contrary, that the Christian worldview teaches humility. One of the injunctions is "Render unto Caesar what is Caesar's." There is in fact an important place for governmental institutions to bring peace and tranquility so individuals can live meaningful and productive lives. When one reads the great philosophers that inspire our own founding generations, many are deeply and inadvertently Christian in their perspective.

You talk about a call to service. Stepping beyond Pepperdine for a moment, how do you assess today the service commitment of the legal profession around the country?
I think it has been in decline for a generation. But I am optimistic that the rising generation of lawyers is much more committed in a practical way to being of service to bench, to the bar, and to community. Instead of focusing broadly on notions of systemic institutional reform, which is always a lively subject, so many of the law students of today--and especially here at Pepperdine--are asking: "What can I do right now, if only in a small way, to help incrementally?"
We had students literally around the globe this past summer: 10 students in Kampala, Uganda, working at the elbow of the chief justice of the Ugandan Supreme Court and other judges, in addition to several law students in Sophia, Bulgaria, who were called upon to make presentations in conferences on issues involving religious liberty.

When you visit Pepperdine and see its beautiful campus up in Malibu, you do wonder whether you're able to connect the students to the real world. How do you connect students to the real community, especially in Los Angeles, which has so many problems and is just down the coast?
It's a wonderful platform from which to spring forth and be of service. It's marvelous to be able to study, to have friendships, to be mentored, and to learn in this very beautiful and caring place, and then to spring forward. Our students are very involved in our partnership with David Starr Jordan High School in downtown Los Angeles. The program helps high school students who are interested in learning more about law school, and we recently hosted a number of those students here on campus.
We also have an enormous outreach to Skid Row, to some of Los Angeles' neediest residents, at our Union Rescue Mission Legal Aid Clinic, which continues to be recognized around the country as a premier example of Christian legal aid. We also have a special education legal clinic that does marvelous and important work with families dealing with the education system.
One of our goals is to be peacemakers. Our Straus Institute for Dispute Resolution trains a wide swath of our student body, as well as a large number of judges, lawyers, and even laypersons, who participate in our programs both here on campus and elsewhere. Those individuals go out into courts in Los Angeles and beyond and use these skills to resolve disputes, restore families, and bring about reconciliation. We use this campus as a gathering place for training, for reflection, for inspiration, for learning, and then we go forth.

You're not from California; you're from Texas and Virginia, so how would you say you and Mrs. Starr have taken to your new home in California?
I actually began professional life here in Los Angeles at Gibson, Dunn & Crutcher many years ago. But you're right, most of my professional life has been back in the Washington, D.C. area. I was indeed born and raised in the great state of Texas. We love being back here. It's a special place and we feel privileged and blessed to be part of this community.

A lot of the Los Angeles community is famously liberal. Have you found overall that you've been welcomed and treated well?
It's a very welcoming community. Pepperdine is famously so, but we have really enjoyed being in the Greater Los Angeles community and Southern California more generally. So however you may vote in the voting booth, people here tend to be very gracious and hospitable.

Back on the subject of the law school, your national rankings have continued to rise. What drives that sort of thing?
The rankings are very deeply flawed, and one of the reasons is that they don't measure--and really can't be expected to measure--the culture of the school. But what drives the rankings more than any other single factor is the law school's reputation with other law schools, which may seem like an odd way to measure the energy levels and the abilities of our students.
We accept the reality of the rankings and are thankful that we are at least moving in a positive direction. I think one of the reasons is that there is increasing recognition of how highly productive our faculty is. Our scholarship is really top flight, yet we have not sacrificed our culture of caring about the students and mentoring the students. That's one of the reasons that we continue each and every year to attract students from all over the country who were admitted to higher-ranking law schools. They find the mission of the school, the culture of the school, and the opportunities for international service truly extraordinary, so much so that they will come here instead of Top Ten schools.

When you mention the name Ken Starr, many people think of Whitewater, the Monica Lewinsky scandal, and your role as independent counsel. Does it bother you that you're associated so closely with that particular part of your career?
It is just part of the call to duty. I accept it. It was obviously a very controversial time for the country. The investigation was widely controversial and bitterly criticized, but for my part, I'm content with the fact that it was simply a response to a summons to serve.
Sometimes the call to service brings with it a responsibility that is not particularly an attractive or happy one. I knew when I accepted the call from the three-judge court to become the independent counsel that it was not career-enhancing to be involved in the investigation of a very charismatic and popular president. But that was my duty under the law that Congress had passed, and the attorney general had determined that there needed to be an independent counsel investigating these matters, including the Lewinsky matter. I simply tried to do my duty.

Speaking of being called to duty, the one thing missing from your incredible resume is being a justice yourself on the Supreme Court. Now, you're only 62, would you still like to be considered by the next president for a seat on the Court?
I think any lawyer, especially one who was privileged to serve for a short period as a judge, would be honored and flattered, but there is this flinty reality called politics. I have a sense that my time in that respect has passed. I was very honored to be considered--I am told--for possible appointment to the bench many years ago, but the nod went in another direction. To paraphrase the Apostle Paul, "I'm very content where I am."

With all the things that you and Mrs. Starr are involved in, do you have any spare time at all, and if so, what do you do with it?
Well, I really am a dull fellow. I do enjoy my work here immensely, and I am also of counsel to Kirkland & Ellis. My golf game is a complete non-starter. I do worry about being a good father--and now grandfather--and getting out on the track and running, but the golf clubs are still in the closet

David Hiller was previously publisher, president, and chief executive officer of the Los Angeles Times. Prior to that position, he was president, publisher, and chief executive officer of the Chicago Tribune Company. He came to Tribune from the Chicago law firm of Sidley & Austin. Prior to that, he served two years at the U.S. Department of Justice as special assistant to Attorney General William French Smith and as associate deputy attorney general. During 1979 and 1980, Hiller was a law clerk to U.S. Court of Appeals judge Malcolm Wilkey and Supreme Court justice Potter Stewart. He received a bachelor's degree from Harvard College and a law degree from Harvard Law School.