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Pepperdine Law School Dean Kenneth Starr with post-debate analysis

Friday, May 4, 2007

HH: Now I’m joined by Judge Ken Starr. Now Judge Starr and I go way back to when he was actually a real judge on the D.C. Circuit, and I was a wet-behind-the-ears clerk. Judge, good to see you. I call you Dean Starr now. You’re Dean Starr.

KS: I’ll go by either. Great to see you, Hugh.

HH: Good to see you. Were you here for any campaign tonight?

KS: No, I was here as a citizen. I was invited by the library. Pepperdine University, where I’m privileged to serve, has a close, informal relationship with the Reagan Library. We’re neighbors. And so it was a great night to be here.

HH: Great question tonight. Would it be a good day or a bad day if Roe V. Wade was overturned. We had nine good days, and we have Rudy could be.

KS: Yes.

HH: What did you make of that answer by Mayor Giuliani, your old colleague from Justice?

KS: Yeah, Rudy struggles with this issue, and he is a friend, my former colleague. He’s a stand up guy, and I think the United States people of the country saw that tonight. But he struggles with this issue, but I think he has a position, namely that he believes in the woman’s right to choose. But he also has a Constitutional issue with Roe V. Wade, and he would leave it up to the states.

HH: You know, I tried to take his side on this, because his answer, I’ve asked him on the air about this, I’ve asked Ted Olson about it as well, is you can be a strict constructionist and go either way if Roe is presented squarely to the Court again. You could either uphold Roe as a precedent that’s been there for thirty years, or you could strike it down. I think that’s what the Mayor was saying. Am I hearing him right?

KS: Well, I think that’s exactly what he was saying. I respectfully disagree with that, for a whole number of reasons that we could get into. Roe was deeply divided, the decision itself, at the time that it came down. It has never been accepted by the American people. It is not part of our culture. And the issues continue to be issues that need to be discussed in the democratic conversation. But I understand the position that there is respect for precedent, and I think that’s what the Mayor was lifting up tonight.

HH: Well, let me push you on that, then, a little bit, Ken Starr. Could a strict constructionist vote for Roe V. Wade? I’m never going to be on the Court, so I can tell you. No, I could never, ever uphold Roe V. Wade, because it’s a scar on the Constitution. But could a good, solid, Federalist Society conservative judge say yeah, it’s been here too long?

KS: No, I think it’s difficult to poll Roe V. Wade for the very reasons that the Supreme Court by unanimous vote decided not to Constitutionalize the right to die, the physician assisted suicide. They just said this is an issue that divides reasonable people, the Constitution does not yield up an answer, let’s keep the marketplace of ideas open, let’s have a debate, let’s have a conversation. But the Constitution doesn’t have an answer. That’s one of the reasons that Roe V. Wade continues to be such an unsettled issue.

HH: Now let me ask you as a loyal servant of many presidents, and who have done the work of the country for a long time. Were the questions that were asked tonight the kind of questions you want to hear presidential candidates answer? Did you get, were you engaged as someone with the vast amount of experiences you have?

KS: Well, this is such an artificial arrangement. There’s just too many persons. The idea of ten candidates, 90 minutes, you have 30 seconds, and we call time on you and so forth. So this is soundbyte politicking, which I don’t particularly find edifying. But you still got an idea of the character of the candidates, especially when they were having to answer some of the bloggers’ questions. I mean, the introduction of the internet, hey, the citizens get to ask you this, and some of those questions, you know, were really pretty probing and penetrating.

HH: And Ken Starr, a last question, the Mormon issue came up. And obviously, you’re Evangelical. You teach at a great Evangelical university. I’m unsettled by the number and frequency of these questions about faith in the public square in a candidate. It’s almost an Article VI problem, although it’s not the government acting.

KS: Yeah, I think they’re out of line, but for whatever reason, our friends in the media feel that they must ask this question. But I must say I think that the American people do think that it is vitally important for the individual who holds that office to a person of genuine belief, who believes in God, who has a genuine faith life, who has the sense that there is Divine providence, and that that person needs the direction of Divine providence, and the guidance of providence, and to be in a spiritual community. But whether that person is an Orthodox Jew, whether that person is LDS, Mormon or whatever, I thought we were beyond that. I thought it was part of the lesson of election of 1960.

HH: Dean Starr, a great pleasure. Thank you, Dean.

End of interview.

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