Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
It's hard to separate the man, Kenneth W. Starr, from his new book, "First Among Equals." The man is the former Independent Counsel who hounded former President Bill Clinton into impeachment. The book is a paean to the United States Supreme Court, its conservative majority and Chief Justice William Rehnquist in particular. The result is a perfectly predictable and utterly unconvincing attempt by Starr to justify the Rehnquist Court's jurisprudential tack while denouncing the tack taken by its more liberal predecessors.
Starr's book has precisely the same tone and feel as his famous investigation of Monica Lewinsky and the Clinton White House. The analysis and conclusions are there and they are presented in a wholesome way, as if there could be no dispute about their validity and no doubts about the biases and alliances of their author. But there is something missing - something like the other side of the story or at least a more comprehensive telling of it - something Starr's legal and political detractors will notice right away.
Remember when Starr talked in 1998 about upholding the "rule of law" as if the "rule of law" consisted only of prosecuting people accused of obstructing justice and not of a larger picture of fair process and prosecutorial discretion? Well this book reads the same way. "[T]he post-[Chief Justice Earl] Warren Court has lacked its predecessor's almost missionary zeal to reshape society," Starr writes in the introduction. That sounds good as a conclusory statement. And you can almost hear the Mayberry-RFD-tone in which it would have been delivered by Starr. But surely the Rehnquist Court also has reshaped society with "almost missionary zeal," too, from its colossally transparent decision that put George Bush into the White House instead of Al Gore to its controversial decision last term to permit a school voucher program to survive in Cleveland.
Since its inception, in fact, the Supreme Court has reshaped society; sometimes to the benefit of conservatives, sometimes to the benefit of liberals. Like it or not, that's just the way it is. Starr would have been more intellectually honest to admit as much-- just as he would have been more intellectually honest back in 1998 to concede that the perjury case against the former president did all depend upon what the "definition of is, is" and that lawyers all the time tell their clients in civil depositions to parse words and not volunteer information. Starr obviously has a brilliant legal mind and the bonafides to offer unique insight into the inner thinking of the High Court's current residents. But when it comes to legal analysis and commentary, he simply ought to stop pretending that he is a paragon of objectivity and non-partisanship and that his book therefore has great legal and historical value.
Even its title isn't quite right. The Supreme Court is most decidedly not first among equals. It is absolutely supreme in the scheme of things and has no equal in the judicial branch of government. (You even could argue, and some do, that it has no equal in either of the other two branches of government). It is the last word on the law in this country and proves it every term when it decides a hundred or so cases and rejects thousands of others. Starr tries in the book to argue otherwise the same way he tried to argue in September 1998 that the infamous report he published relevant to the Monica Lewinsky investigation wasn't about sex.
Dahlia Lithwick, the great legal affairs writer for slate.com., also came to this conclusion when she recently read the book. She riotously describes it as "a mash note" to the Chief Justice and writes, cogently, that Starr only complains of judicial "activism" when it's the activism of the left and not the right. "First Among Equals" comes off as a schizophrenic book," Lithwick writes, "principally because Starr is too in love with the Rehnquist Court to notice that it's not all that different from its predecessors." For me, the book was schizophrenic, too, because it was written by a man who otherwise might have a been a Supreme Court Justices himself-- imagine Starr's allure to President Bush now had he not become politically tainted by the Lewinsky investigation!-- and who thus is both too near to it and too far from it to provide a sound review of its work.
Meanwhile, an otherwise atrocious book review of "First Among Equals" in the New York Times' Book Review by Dennis J. Hutchinson-- in which Hutchinson fawningly writes that Starr warrants "the aura of first among equals in the Supreme Court bar"-- makes a valid point about what this book should have been about. "One almost wishes," Hutchinson wrote, "that Starr had allowed himself more room to reminisce about his career as a lawyer and a judge.... The portraits of the justices are the most engaging part of the book..."
One almost wishes, indeed. Starr either should have written a pure memoir of his work before the Court as Solicitor General, which would have been interesting for the factoids it would have included, or he should have written a thorough, detailed defense of his conservative brethren on the Court. Since he did neither, the book is good only as far as it goes. It's a book conservatives will like; liberals and independents will not; and legal scholars will be disappointed with.