Contempt Page 2

  Harding, a Church of Christ–affiliated institution, is about sixty miles northeast of Little Rock. It’s well respected, but it’s definitely not Harvard. The superintendent seemed a bit crestfallen, sharing the disappointment Mrs. Mahan had already expressed. She viewed Harding as a backwater and encouraged me to study in Washington, D.C. Check out the foreign service, she said, maybe become a diplomat.

  But Harding was a natural choice for my family. My brother taught economics there, and with a generous scholarship, it was readily affordable.

  My tenure at Harding started with promise. I majored in political science, with the goal of becoming both editor in chief of the college paper and student body president. To that end, I ran for class representative as a freshman and won. I also worked hard as a junior reporter for the Bison and penned an editorial column called “Starrdust.” Then, at the end of my freshman year, I got my first lesson in realpolitik.

  After crafting an editorial criticizing the administration for spending too much on capital projects at the expense of building up the faculty, I was socializing in the student union when I felt a tap on my shoulder. The college president, Clifton Ganus Jr., a mountain of a man, said, “Young man, come with me.”

  He sat me down in his office—my only time in the president’s suite—and read me the riot act. In the president’s view, my sharp-edged editorial had hurt the college, and he proceeded to reprove me as if I were a child who had disrespected his parents.

  “This is high school all over again,” I thought. Instead of being humbled, I came to the realization that I needed to transfer. Mrs. Mahan had been right.

  Even though I had been elected representative of the sophomore class, I had already been feeling restive at Harding. I had started questioning Church of Christ traditions that seemed to rest on unduly narrow interpretations of Scripture. If pianos and organs were not permitted in worship, why allow the song leader to brazenly use a pitch pipe? What about the use of hymnals? No Scriptural authority for that. If wine was mentioned throughout the Bible, why did we insist on total abstinence as a matter of doctrine?

  With questions about both Harding’s theology and intellectual rigor, I went home to San Antonio for the summer and began to plot my next step. My interest in politics still strong, the District of Columbia—and Capitol Hill—began drawing me like a magnet. I ended up at George Washington University in D.C. It wasn’t Princeton, where I initially hoped to transfer, but highly regarded and generous with financial aid. My parents were supportive; their attitude was that I needed to go where I felt called, to use my gifts where they led.

  Not long after my arrival in Washington in September 1966, I was hired as a staff assistant to Representative Robert Price, a Republican from Pampa, a small city in the Texas Panhandle. My job was to handle constituent correspondence from the 18th Congressional District of Texas. The job sounded important, but all I did was sit at a little desk just outside the congressman’s office and respond to constituents’ letters, which were mostly about agricultural and ranching policies, as well as veterans’ issues. Not the most exciting task, but I worked hard at crafting these missives. Maybe too hard. One of the office staff good-naturedly dubbed me “Baron de Starr” for my florid writing style.

  My other job was to be at the congressman’s beck and call. On Thursday afternoons, when Congress was in session, I’d drive him to Dulles airport for his flight back to Texas. Price was a hardworking rancher and a “sage-brush rebellion” Republican in a region dominated by Democrats, as most of Texas was at the time.

  I treasured those trips. Regaling me with his philosophy of life, the congressman articulated a commonsense wisdom and sense of duty that has served me well to this day. Price believed that he owed his constituents his best judgment, not always the popular decision. That sometimes put him at odds with his staunchest supporters.

  After being upset by a reaction from his political base, he surprised me one day by saying, “You’ve got to do what you think is right. If they don’t like it, then they can go f*** themselves.” A devout Baptist and Sunday-school teacher, Price seldom used vulgarity. But he felt strongly about this, and he got his point across: you have to vote your conscience.

  In the late fall of 1966, just as I was digging into the culture of Capitol Hill and my studies at GWU, I received one of those letters that young men of my generation feared: a notice to report for a Selective Service physical.

  The Vietnam War was heating up. At the time, I was mildly sympathetic to the war; the conflict had not yet become the quagmire that prompted campus unrest across the nation. My one exposure to Arkansas politics during this period was hearing Senator J. William Fulbright make a very powerful antiwar speech. But he held anti–civil rights views, which I found repugnant, as part of his Faustian bargain to retain his Senate seat from Arkansas.

  Although avoiding the draft was a great preoccupation of my generation, I honestly wasn’t unduly worried. Though definitely not eager to be drafted, I would have served had the call come.

  But first I wanted to get my undergraduate degree. I had made the assumption that full-time students automatically received a deferment. Apparently not so. I found myself on a bus filled with nervous young men headed south on I-95 to a medical facility in Richmond, all of us facing the reality that we might soon be serving in uniform.

  After being poked and prodded all that morning, I appeared to be passing the physical exam with flying colors. Then, as I left, a doctor grabbed my right arm and, pointing to a patch of skin, asked, “What’s that?”

  I didn’t know specifically, but for years I had seen dermatologists for various skin conditions.

  “That’s psoriasis,” he said. “The military’s experience is that psoriasis is a chronic condition. Young man, would you believe it? You are 4-F.”

  It was good detective work on the doctor’s part, because I hadn’t mentioned my condition. I wasn’t covered with skin lesions, so I was hardly suffering. I honestly thought the diagnosis was providential. My studies at GWU and my job on Capitol Hill would continue.

  As other classmates went off to war, I lived off campus, went to school in the morning, worked forty hours a week for Congressman Price, and got paid for twenty. I wore a suit to school every day and didn’t get involved in either the school paper or campus politics. I was determined to get good grades and I did. It helped that I could study at night in the gorgeous Main Reading Room at the Library of Congress.

  I became close to several faculty members in the GWU political science department and developed an interest in going to law school, thinking maybe I’d teach political science at the college level. My mentors steered me to a new Ph.D. program at Brown University, in Providence, Rhode Island, where I could earn a doctorate in three years.

  But I first had to make a detour to Harvard for a 1968 summer program to fulfill a language requirement for my degree at GWU, and that detour was also providential. It was there that I met Alice Jean Mendell. I sat behind her in Intermediate Spanish and “pulled her pigtails.”

  From New York, Alice was a student at Skidmore College and also working on fulfilling a language requirement. I was drawn to her—more than she was to me—but eventually she warmed up and agreed to be my girlfriend. I had dated throughout high school and college, but Alice was my first serious relationship. When the summer ended, we began a tale-of-two-cities commuter relationship—between Saratoga Springs and Providence.

  Unfortunately, the poli sci department at Brown wasn’t as appealing as the one at GWU had been. I loved Brown, but there was a strong push within the department to make the discipline a “science” by emphasizing computers and statistics. I got along great with the faculty, but the department chair displayed a worrisome sign on his door: “If you can’t quantify it, it’s not worth talking about.”

  I was interested in ideas, and the process of government, not statistical analysis. I viewed t
he Ph.D. as an entrée to college teaching, not to conducting polls or slicing and dicing election data. My thesis adviser suggested I finish the doctorate at a program in England, where political philosophy, not numbers, remained the focus.

  But I didn’t have any money for studying abroad. Since the course I liked best at Brown was constitutional law, I decided to go to law school instead of finishing the Ph.D., hoping to teach law eventually. In the meantime, I needed work.

  Happily, my department chair guided me to a post as a contract program officer with the U.S. State Department in the Bureau of Educational and Cultural Affairs. At the height of the Cold War, America and the Soviet Union were competing for the hearts and minds of the Third World, and this program brought young people from those parts of the world to take an in-depth look at America. The State Department wanted people to have personal experiences of Western democracy, and it was my job to escort my charges all over the country, where we were often hosted in people’s homes.

  As a result of my work, I got to know big-city mayors and people working with World Affairs Councils. I saw America through new eyes. And I also had space to plan the future. I lived off the State Department per diem, saved my salary, and began applying to law schools.

  Duke University gave me the most scholarship money. That and its growing reputation made the decision to enroll there easy. Alice and I got married in August 1970 and one week later I started law school.

  My experience at Duke couldn’t have been more different from my time at Brown. I loved the entire experience and came to joke that I was a refugee from academia. My class was small enough to be close knit, and I paid little attention to politics, just studying hard. I did well enough that after graduation in 1973, I received a yearlong clerkship in Miami with Judge David Dyer, of the U.S. Fifth Circuit Court of Appeals.

  Headquartered in New Orleans, the Fifth Circuit at that time covered a vast region, from Key West to El Paso. The judges heard appeals arising from a bewilderingly wide range of cases, from criminal convictions to class-action lawsuits against huge corporations. Clerks analyzed cases, made recommendations on rulings, and assisted judges in writing opinions.

  Clerking for Judge Dyer was not just an honor but a delight. A lawyer who had been successful as a corporate litigator in Miami, Dyer had a rigorous legal mind and a winsome personality. I once asked the judge’s executive assistant, who had worked with him in private practice, the secret of his success as a lawyer. She simply responded: “Juries really liked him.” Be likable: a good lesson for anyone who practices law on his or her feet. I took note.

  There in Miami I fell madly in love with the entire judicial process, loving it even more than law school. Lawyers representing clients are required to be more interested in victory than the truth. For judges, there’s no such thing as a victory or a loss. Lawyers represent clients and causes. Judges seek to follow the law. That is a very affirming way to spend the workweek.

  My bold ambition was to clerk for a justice of the Supreme Court, a prestigious post that would make a move into teaching law school possible. That required the enthusiastic recommendation of someone with clout, like Judge Dyer. My goal was still a long shot since I hadn’t gone to Harvard, Yale, or another elite school, which had virtual strangleholds on prestigious clerkships.

  To get an edge I began accompanying Alice at night to the University of Miami. While she took classes toward an advanced degree in higher education administration, I immersed myself in researching a then-hot topic in American constitutional law—whether a federal court could constitutionally order a state or locality to conduct a new election based upon voting rights violations. Thanks to my evening studies, I wrote an article that was quickly published in the New York University Law Review.

  As my year with Judge Dyer drew to a close, I was set to begin the practice of law in California with a major firm, Gibson Dunn & Crutcher in Los Angeles. But before Alice and I packed our bags and headed for the West Coast, I figured I should at least try for a Supreme Court clerkship. I mentioned my ambition to Judge Dyer. He smiled and responded: “I’ll call Lewis.”

  “Lewis” was Supreme Court justice Lewis Powell, who promptly invited me to visit him in his summer chambers in Richmond, Virginia.

  Justice Powell had a reputation for choosing clerks from among the “first in class” ranks. That wasn’t me. More relevantly, he was also renowned for working prodigiously hard. He noticed the law review article listed on my résumé and inquired when I had had time to write it. I explained my nocturnal visits to the University of Miami Law Library. He seemed impressed.

  Still, unsurprisingly, he didn’t select me. Disappointed, but grateful we still had a plan, Alice and I moved to Los Angeles. She got a job at the University of Southern California in college administration; I practiced law with Gibson Dunn. Almost immediately I began arguing motions in court, something few baby lawyers in large firms get to do.

  Life in California was good to Alice and me. We explored the state and for the first time had a little money in our pockets. We got involved in the First Congregational Church of Los Angeles, attracted by the church’s beautiful liturgy and music. Though I had never moved away from my Christian roots, in my faith journey I had left the Church of Christ and was clearly now a seeker. My own beliefs were evolving but remained focused on the centrality of Scripture and the overarching importance of grace.

  In 1973, like everyone else, I closely followed the scandal dubbed “Watergate.” What was aptly described as a third-rate burglary would lead to a constitutional crisis and the impeachment of a president.

  Though by now, having been heavily influenced by Representative Price, I was a registered Republican, my partisan commitments didn’t keep me from seeing that the evidence against a GOP president was overwhelming. The blunder by Nixon’s “plumbers” had metastasized into a massive cover-up. The president had violated the rule of law by participating in an obstruction of justice.

  This obstruction was a violation of one of the beliefs I hold dearest: The law has integrity. The facts have integrity. You are not to twist, torture, or manipulate the law or the facts, as Nixon had done. Republican loyalties aside, I was relieved when the nation’s thirty-eighth president resigned on August 8, 1974, and averted an inevitable trial in the Senate.

  Meanwhile, Alice and I started looking for a house on the west side of Los Angeles. We were ready to put down a deposit on a small cottage in Pacific Palisades when in January 1975 I received life-changing news.

  Though Justice Powell had not chosen me to clerk for him, he had picked up the phone and recommended me to Chief Justice Warren Burger. Before I had traveled to California, I had interviewed with the relatively new justice, William Rehnquist, and with Burger’s screening committee. I had heard nothing for months, but now I heard what I had dreamed of for years: I had been offered a Supreme Court clerkship by Chief Justice Burger.

  The day I received the offer was one of the happiest days of my life. My colleagues at the law firm were also pleased. They sent me off with their blessing, telling me to come back in a year, and I fully intended to.

  Alice and I put aside the down payment and moved to Washington. Then Alice found an attractive position at Georgetown University requiring a two-year commitment, so we purchased a small town house on Capitol Hill nestled just behind the Supreme Court.

  I don’t know what I expected when I arrived at the majestic Supreme Court Building. Maybe the Fifth Circuit on steroids. But I was unprepared for the tension of daily life inside the Court, which was deeply divided along ideological lines. Chief Justice Burger led the conservatives; Justices William Brennan and Thurgood Marshall headed up the liberal faction. Justice Powell—and at times Justice Potter Stewart—were the all-important swing votes.

  The Chief Justice had a great respect for history and tradition. He venerated the democratic process and was strongly inclined to uphold legislative
choices. A son of Minnesota, Burger passionately believed in the dynamism of our federal system. As a traditionalist, he was reluctant to open new frontiers by interpreting the Constitution in a way to achieve policy goals, no matter how noble.

  But there was a widely held perception that the Court, under Burger’s leadership, was dismantling the liberal jurisprudence of Chief Justice Earl Warren. After all, Burger had been nominated by President Nixon, largely because he had been reliably conservative on law-and-order issues. As a judge on the D.C. Circuit Court of Appeals, which had been unrelentingly liberal on criminal justice controversies, Burger had authored numerous lower-court opinions dissenting from his court’s pathbreaking decisions.

  I was honored to be working for Burger, a kind, grandfatherly man, but uncomfortable with the intra-Court divisiveness. The Chief was sometimes criticized for hogging the great cases and assigning the “dogs” to other judges. Still, I was honored when Burger asked me to stay on an additional year. He was going from three to four clerks and wanted some continuity. That proved to be a glorious year.

  As senior law clerk, during the October 1976 court season I wrote a bench memo for Chief Justice Burger on a complex securities law case that was widely considered a “big-time dog.” I laid out the facts and presented how I believed it should come out.

  “If you have any interest, I’d like to work with you on the opinion,” I said. The Chief agreed and assigned the “dog” to his own chambers. After the draft opinion was circulated among the justices, Justice Stewart, one of the Chief’s strongest critics, wrote “Fine piece of work. Please join me.” High praise indeed. “Join me” meant to add his name to the majority opinion. Even though the case has faded into insignificance, that was one of the proudest moments in my two-year stint at the Court.

  As the second year of my clerkship drew to a close, Alice and I were not eager to return to California. The lure of D.C. and Capitol Hill had gotten to me. Besides, Alice was pregnant with our first child, and moving seemed like a big challenge. Fortunately, Gibson Dunn had opened a Washington office. I became a Washington lawyer.