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August 1, 2013
America’s independent lawyers predate the Revolution

By Gary Blankenship
Senior Editor

Kenneth Starr, a former U.S. solicitor general, former U.S. circuit court of appeals judge, and former Whitewater special prosecutor, cited some illustrious names when he gave the annual Chester Bedell lecture on the Independence of the American Lawyer.

Kenneth Starr Lincoln. Adams. Jefferson. Robert Jackson. Thurgood Marshall.

Interestingly, he omitted another example right in front of the assembled members of the Bar’s Trial Lawyers Section and Criminal Law Section at their yearly joint luncheon at the Bar’s Annual Convention.

That would be Ken Starr.

Starr, now president of Baylor University, delivered the Bedell lecture on June 28, two days after the U.S. Supreme Court issued landmark decisions on a pair of cases affecting gay marriage.

Starr, a fixture in conservative legal circles, had joined with New York attorney David Boies in one of those cases to argue for overturning a voter-approved California proposition that banned gay marriage. That action earned the wrath of some conservative colleagues.

(Starr and Boies had opposed each other on another high-profile case, Bush v. Gore in 2000, with Starr representing the Bush campaign in that contested election. In the California case, the court decided it did not have jurisdiction, which left intact a lower court ruling overturning the referendum results and legalizing gay marriage in the state.)

But then, maybe the listeners only had to consider the examples cited by Starr in his talk to see this was not an out-of-character action. He began with a pre-Revolutionary War example — John Adams successfully defending the British soldiers accused of murder in the 1770 Boston Massacre.

Adams earned $30 for the case — not a small sum in those days — but at the cost of temporarily losing half his practice, Starr noted. And, at the time, his wife, Abigail, was pregnant with their fourth child. Yet Adams took the case within 24 hours of being asked.

“He didn’t dally; he was not Hamlet,” Starr said. “Here is the independent American lawyer showing pluck and courage.”

With a touch of humor, Starr quoted what Adams wrote in his diary three years later: ‘“It was one of the most gallant, generous, manly’ — he liked himself a lot — ‘and disinterested actions of my whole life. One of the best pieces of service I ever rendered my country.’”

And then the future president went on to write: “The judgment of death against those soldiers would have been as foul a stain upon our country as the execution of the Quakers and the witches.”

Ten years after that trial, Massachusetts — still in the midst of the Revolutionary War — came calling for more public service from Adams. This time, he set his practice aside, locked himself up in his home for a month of study and work, and produced a constitution for the commonwealth. That document, Starr noted, is still used in Massachusetts today and became the model of the U.S. Constitution, drafted seven years later. It included lifetime tenure for judges.

Another notable Revolutionary-era lawyer was Thomas Jefferson. Before public service replaced his law practice, Jefferson had a wide-ranging practice — including a case about the theft of a bottle of whiskey.

“His contemporaries would call him bright, enthusiastic, and — this sounds like an understatement — intellectually curious,” Starr said. “Don’t we all need to show that intellectual curiosity?”

The 19th century produced Abraham Lincoln,who, from the time he became a lawyer in 1837 until he became president, “lived a life in the law.”

One of his most famous musings concerned a not unfamiliar perception about lawyers’ ethics.

‘“There is a vague popular belief that lawyers are dishonest,”’ Starr quoted Lincoln as writing. ‘“But let no young man . . . choosing the law for a moment yield to this belief. Resolve to be honest at all events, and if in your judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.’”

In the 20th century, Starr said Thurgood Marshall demonstrated another type of independence.

“He fashioned an elaborate, protracted litigation strategy that culminated in Brown v. Board of Education,” Starr noted. “He didn’t push as hard as some thought he should push, as early as he should push. But he chose his own way and his own time — the independence of judgment. . . . He knew he faced obstacles, but like Mr. Lincoln before him, he pressed on.”

Robert Jackson served as solicitor general and briefly attorney general for President Franklin Delano Roosevelt, including providing the legal opinion that justified seizing North American Aviation prior to Pearl Harbor. FDR put Jackson on the Supreme Court, and, several years later, Jackson was involved in hearing the case where President Truman seized steel mills, and the government cited Jackson’s prior opinion as attorney general to bolster its case, with the then-solicitor general telling Jackson during oral arguments that the government did “lay a lot of it at your doorstep.”

Starr quoted Justice Jackson’s reply: ‘“I claim everything, of course, like every other attorney general does.’ And then he added, ‘It was a custom that did not leave the Department of Justice when I did.’

“The dutiful lawyer had become the independent judge. He was saying what he had determined as a lawyer did not determine what he would conclude as a judge.”

In the same vein, Starr recalled, when he joined the U.S. Circuit Court of Appeals for the District of Columbia, that fellow Judge Harry Edwards told him, “‘Ken, you’ll know you’re independent when you in good conscience vote against the folks who put you here.’”

And that reflects the sentiment, Starr said, of his favorite president, Lincoln, who wrote, “No client ever had enough money to bribe my conscience or to stop my conscience’s utterance against wrong and against oppression. . . . My conscience is my own. It belongs to no man. I shall never sink the rights of mankind to the malice, wrong, or avarice of another’s wishes.”

[Revised: 10-20-2014]