Patterico's Pontifications


Starr’s Oversight

Filed under: Blogging Matters,Judiciary — Patterico @ 6:43 am

Confirm Them reports on a New Republic review of a new book by Joan Biskupic about Justice O’Connor. From the review:

. . .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….

It’s hard to imagine such an oversight like this having much effect in the age of the blogosphere. The oversight would have been corrected within days.

Had Harriet Miers been nominated in 1981, she likely would have sailed through the Senate. Now that we have an “Army of Davids” with a universe of facts at their fingertips, the world is a different place.

UPDATE: Commenter steve tries to burst my bubble, and succeeds, by noting that O’Connor’s vote was indeed disclosed during her confirmation proceedings.

13 Responses to “Starr’s Oversight”

  1. So much for the theory that O’Connor “grew” in office. Between this horrible non-investigation “investigation” and submitting forged declarations to spare a killer the death penalty, it doesn’t look like Ken Starr has, either.

    Xrlq (003728)

  2. Umm … Ronald Reagan was never that set against abortion. He signed California’s decriminalization law himself. As has been pointed out, there is a difference between wanting to liberalize abortion and supporting Roe.

    Kevin Murphy (6a7945)

  3. Kevin – yes, that’s a fair point. I don’t see why a judicial candidate who as a politician took a political stance you disagree with should necessarily be rejected for judicial office. Isn’t the theoretical ideal that judges will ignore their policy preferences and focus on interpreting what the politicians have enacted into law?

    aphrael (e7c761)

  4. […] This is really good stuff from Confirm Them about book reviews at the New Republic, via Patterico’s Pontifications. […]

    Common Sense Junction » Blog Archive » Do Supreme Court Justices Lie? (9f4d0e)

  5. Kevin (comment #2), of course you’re correct that there is a difference between wanting to liberalize abortion and supporting Roe. However, I don’t know of anyone in the United States who supported the kind of radical liberalization of abortion law that O’Connor supported in 1970, who also supported overturning Roe v. Wade.

    Arizona’s H.B. 20 (which O’Connor supported in 1970) would have legalized abortion on demand throughout pregnacy; i.e. it would have allowed abortion for any reason all the way up until birth.

    In contrast, California’s Therapeutic Abortion Act signed by then-Governor Reagan in 1967 only allowed a physicians’ committee to approve abortions in cases where there was substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the woman, and in cases of rape and incest; and abortions after 20 weeks gestation were flatly prohibited.

    Andrew (08ba2c)

  6. I am not convinced this would have made a difference. Reagan liked O’Connor personally and was pretty set on nominating her after her interview with him no matter what his advisors preferred. I doubt Starr was encouraged to dig too deeply.

    James B. Shearer (fc887e)

  7. Well, maybe Starr will write his memoirs some day. As for Reagan, a top aide said: “One of the things he regretted most at the completion of his presidency in 1989, he told me, was that politics and circumstances had prevented him from making more progress in restoring protection for unborn human life.” It seems that Senator Barry Goldwater insisted on O’Connor’s nomination, just like Senator Warren Rudman insisted on Souter’s nomination. Didn’t you know? The Senate nominates, the president puts on a brave face, and then the Senate confirms.

    Andrew (08ba2c)

  8. Andrew, the idea that O’Connor was somehow forced on an unwilling Reagan is contrary to every account I have read about what happened.

    James B. Shearer (fc887e)

  9. James, there’s no question that Reagan was charmed by O’Connor. But Reagan was also charmed by Tip O’Neill. That doesn’t mean that Reagan would have appointed O’Neill as dogcatcher.

    The point is that Starr’s Memo was sugarcoated, probably at the urging of people like William French Smith and Barry Goldwater, in order to help foist O’Connor on Reagan. Surely you don’t think that Starr didn’t know how to investigate someone.

    Andrew (08ba2c)

  10. Kenneth W. Starr was a gullible and slipshod investigator

    Twenty-five years later, things haven’t changed much.

    Who Is Responible for the Forged Morales Declarations?

    Consigliere (3f8ad8)

  11. I was living in Arizona at the time of the O’Conner nomination, and I recall that her fondness for abortion was well-known and frequently discussed. It’s hard to believe that the Washingtonians were unaware of it. I expect that Starr just left that stuff out to keep it out of the papers and to fool Republican voters who weren’t paying much attention. The people making the decision knew exactly what they were getting.

    Doc Rampage (47be8d)

  12. “It’s hard to imagine such an oversight like this having much effect in the age of the blogosphere. The oversight would have been corrected within days.”

    What makes you think it wasn’t? O’Connor’s 1970 abortion vote was disclosed during the confirmation fight.

    If you can even call it a “fight.”

    The Biskupic book explains the state’s anti-abortion leader outed her. Her GOP allies, whose number included Chief Justice Warren Burger, rallied to shore up the party flank:

    “72-year-old Barry Goldwater made the rounds of the Senate, leaning on a cane, to reassure the Republican troops. He told them that O’Connor ‘epitomized the American ideal of a mother and wife.'”

    steve (ab55e3)

  13. The full text of the book “Pursuit of Justices” by David Yalof is available online. It’s pretty clear that Reagan tried to get at the truth before nominating O’Connor, but was prevented from doing so. Once the nomination was made, there was no turning back.

    Andrew (08ba2c)

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