Thursday, February 18, 2010


Ken Starr as the President of Baylor University

[I brought this back up to the top for a bit because the comments are so interesting-- give them a look]

It's official: Pepperdine Law Dean Ken Starr will, in fact, be announced as the new president of Baylor. While we are all still adjusting to this news, I do want to confirm what I said in a prior post: This is a great choice.

Though I collaborate with both liberal groups (such as the ACLU in the project announced last week) and conservatives (for example, the Supreme Court brief I wrote last month for the Washington Legal Foundation), it is fair to say that I disagree with Dean Starr on many issues. As a former prosecutor, there were aspects of the Clinton investigation which deeply troubled me. However, I think that Dean Starr has proven himself at Pepperdine Law as someone who will put the institution first, is a strong leader, and who will finally bring stable leadership to Baylor.

I have known Ken Starr for several years, been to his home a few times, and we have discussed our work at length. I have found him to be gracious, strikingly intelligent, and humble. I know this last will shock people, but hopefully people also know the value I put on humility, and that it is something I look for in others.

Over at Baylorfans, a poster implied that I (or any faculty member) would say something nice about any new Baylor president. That is a reasonable assumption, but isn't really accurate. Rather, I would be silent if I did not approve (I am somewhat politic, after all). Obviously, that is not the path I am choosing.

What do you think of this choice?

With the arrival of Dean Starr, what does this mean for the law school? Does main campus even involve itself in law school affairs?

It means the University President will be a Constitutional scholar with a national reputation. I don't see how that can be bad.
Also, my understanding is that Starr has done wonders for pepperdine law school. Perhaps more involvement in this instance would be a good thing.
How can hiring such a polarizing figure provide the unity that Baylor needs right now? Alienating a large percentage of alumni can't be good for Baylor's fund raising needs, especially as they relate to all the unfunded and under-funded projects related to the 2012 plan.

I know I'm among a large group of young alumni who are mortified and embarrassed by this news.
Thanks for a different perspective on the hire. I have to admit almost all my other Baylor connections have responded negatively. I'm trying to keep an open mind but it does seem a strange hire after dismissing the last president for failing to promote unity among the Baylor family. No hire would be universally cheered but Starr's history makes him immediately divisive.
I am sorry, I did not mean in my original post to suggest in any way that I oppose or even disapprove of Dean Starr as the new president. To the contrary, I think he is an exceptional pick and demonstrates a willingness on the part of the regents to pick the right person for the job, not the right Baptist for the job.

I simply meant to pose the question of what this means to the law school. As TJ noted, Dean Starr has received praised for his work at Pepperdine. I simply wonder if the same status quo will continue at Baylor Law School, or whether some change will come with Dean Starr's arrival.

An outside perspective and constructively critical look at the current administration of Baylor Law School would no doubt be good. With someone of Dean Starr's status providing that perspective and criticism, the law school would certainly benefit

Laura, I wonder what it is that makes Dean Starr so polarizing that you would be mortified by his selection to lead Baylor. I don't think that Dean Starr has been criticized in his academic role. In fact, he is regularly asked to speak at many of the top law schools in the country so that others may learn from his perspective.
Well, it's not President Alberto Gonzalez. So there's that.
Starr is a terrible choice. He is a nationally divisive figure. I’ve never met the man and don’t doubt that he is engaging and even friendly. That does not make him a good prospect to lead Baylor University. The university has been engaged in a bitter, internal war for at least 15 years. Sloan was also divisive figure, but mostly in a parochial Baylor sense. Starr brings a national bitterness. Besides the Clinton issue, he is currently the attorney fighting to keep Prop 8 on the books in California. He didn’t have to take up the cause or case, but he did. He is at the front lines of the culture wars. We don’t need him. He only exacerbates the problems at Baylor. I find it impossible to believe that we could not find someone competent and not divisive from day one, to fill the job of president.
Can anybody tell me why his involvement in the Clinton case will in any way adversely effect his ability to be an effective administrator?

Shouldn't the real issue be with any faculty member that would somehow be holding a 15 year old grudge against the man for his involvement in that case, for being silly, vindictive, and close minded?

As far as Prop 8, he is taking the anti-gay marriage position. He is now president at a school that has a fairly strong history of not being in favor of homosexual rights. I can understand why you might like it, but I can't for the life of me figure out why it would disqualify him to be the president of Baylor. Maybe he couldn't be the president at UT or some other hippie organization, but it seems fairly consistent with the views of Baylor.

Oh, and just to be clear, I don't care who the new president is. Unless it effects the football team, then it doesn't worry me in the slightest. Is Art Briles still the coach? Is Robert Griffin's rehab on track? As long as the answer to those two questions is yes then I'm good.

The only real opinion I have is that I'm glad they didn't just go out and hire a Baptist preacher (something we've done in the past) but someone with actual experience, and success, in running a school and in administration.
Since I didn't go to Baylor undergrad like many BU lawyers, my concern skews to what he can, and if he possibly will, do anything to rescue the sinking ship that is Baylor Law School.
I think when something like this happens it should lead to an overall review of school departments including the law school. Unfortunately, I was at Baylor Law when a new president took over and nothing changed since.
If nothing else, it seems like Baylor would have a shot at another capable professor if he'd be willing to keep up with his teaching. A NEW and discerning eye on the law school sounds like a good thing.

Like RRL, I worry more about Baylor's prominence in football. If they can continue to suck like they have for the last 25 years, I'll be happy with the new addition to the Baylor family. But that may be based more on the fact that I'm an A&M grad than anything else.
Dallas_ADA - you may beat us on the football field (though that is getting less and less certain with every passing year), but every time I go to College Station I am reminded that there are worse things than having a bad football going to Texas A&M.

And despite your uncalled for hostility. Despite your unnecessary shot at me and my beloved Baylor Bears. Despite the fact that you support a school most closely affiliated with the national socialist movement of 1930s Germany. Despite all of that, I will still welcome you to my tailgate next year when Baylor plays Fake Army, because I'm that kind of guy. I forgive.
I think most people's concern stems from the public relations problem this could have with Baylor and recruitment. I'd say I'm pretty much the anti-Starr as far as politics go, but that wouldn't keep me from applying again, because I knew that going to Baylor was not going to put me around people that shared my religious and political convictions, and just didn't care.

But it might keep some otherwise liberal/leftist students from applying to a fine law school/undergraduate institution because they don't want to go to the school being managed by a fairly right-wing figure.

Of course, most universities in this state are, but don't tell my fellow Horns that.
Nicely said, Mark
Well if his only job was to sit behind his desk and push paper all day maybe it wouldn't interfere with his job as president of the university. He will be the public face of the university and him being a divisive figure interferes with one of the basics tasks he has in front of him: uniting the Baylor community and creating a positive image of Baylor university. His Prop 8 activity indicates that he will continue to be the same divisive figure he was in the 90s. As I said before I cannot believe we could not find someone who was both competent (Starr well may be) and not so divisive. The regents picked one of the most divisive figures nationally that has not run for office. It is a mistake and an unforced error. What we really need is to reform the regent selection process.
Ok, so if he would've been on the other side on Prop 8, and he was going to the California Supreme Court to argue against the ban, would you have a problem with that as well?

I assume you will say "yes", in which case my question is, why do you think it is a bad thing to choose someone as president of a university that not only has opinions on things, but has the skills, and willingness to use those skills, to do something to advance a cause he believes in?

So, he is divisive (I guess). So what?? We could pick someone that wont offend anybody, that has no discernible opinions about things, that has no history or paper trail, and who gets along with everyone because they don't have any thoughts.

Or, we could pick a person who:

-clerked for both the 5th circuit and the US Supreme Court;
-served six years on the federal judiciary;
-served four years as the US solicitor general;
-has served for five years as the Dean of Pepperdine Law School; and
-has a long history of representing clients of various interests and on both sides of the political spectrum in meaningful constitutional law cases in front of the the US Supreme Court and various other appellate courts.

Yeah, I can't imagine why that would be good for Baylor.
Apparently the guy likes to multitask, so here's hoping that Baylor Law can convince him to teach a Con Law class or two as an adjunct.
What side of the Prop 8 divide he falls on is unimportant to me in regard to if he should be the president of Baylor. I not against him because of his position on same sex marriage. I am against him because he is an extremely political actor and divisive. As I was discussing with a friend earlier today, What if it was Janet Reno and see was coming off being dean of some law school for the last 5 years". I wouldn't think she would be a good fit either. The particular persuasion of his politics is not the issue, it is the fact that he can be viewed as a partisan political actor is the issue. I don’t mind him or anyone else being invested in their cause, he is free to do whatever he wants, but that does not mean he is a good pick for the president of a large university. Plenty of people are fiery about their issues, but aren’t enmeshed in overtly political issues and haven't been accused of the various excesses that were levied at Starr. I don’t want Baylor University to become synonymous with Starr’s political views and causes. Baylor is bigger than that. They are not the same thing and will skew the public perception of what Baylor stands for going forward. Starr has great credentials and more baggage than just about anyone else that could be picked for this job. We don’t need his baggage.
Just who isn't viewed as a "divisive" if they have an opinion about something? Somehow some of you guys are saying this guy would be a bad fit simply because he took a stand on an issue. What strikes me as unfair is that simply because he has had national exposure on a couple of issues and his beliefs on those issues, he immediately has "baggage."
it's probably that exposure that led to him even being a candidate in the first place. That he was successful at what he did and gained prominence/notoriety should lead one to believe that he might actually be capable at the jobs he has.
RRL, being Polish I would have never gone to any institution that closely resembled anything from 1930s Germany. But it does suprise me that the Poles were able to organize and kick off the the Communist/Russian yoke before Baylor students got together to allow dancing. What's even more suprising is that I think the Polish Army has more victories in the field of battle than Baylor does against A&M!

In fact, I think you would have fit in well down at A&M.
Your blind passion in the face of defeat, your exclusion and mocking of other groups, your need to denigrate others to make yourself feel good about your football teams chances, all sounds like a page out of the Old Army handbook. Join us RRL. You know there's a bit of Maroon blood in you. I'll bestow the honorary degree at your next tailgate. Shall we make a wager now or wait until we know the status of RG3?
No school other university at our reputation level or higher, with the possible exception of the school he is at right now, would ever consider Starr for President. None. That says a lot. Baylor in attempting to make its name as a national school if gaining attention once again for all the wrong reasons. He hurts our prestige nationally. Most people will think it is a joke when they hear Starr is the president of Baylor. That is not a good thing, other than deflect from our all-world atrocious football program..

"No school other university at our reputation level or higher, with the possible exception of the school he is at right now, would ever consider Starr for President. None."

What basis do you have for this claim? Did you call the board of regents of every other university at or above our reputation level?

I'm guessing not, so in retort, every school or university at our reputation level or higher would have jumped at the chance to higher Kenneth Starr. All of them..

"Most people will think it is a joke when they hear Starr is the president of Baylor."

There is that quote from Pauline Kael, noted liberal, that she couldn't believe Nixon had won, since no one she knew had voted for him. I believe that is applicable here. I'll help you correct your sentence so it is accurate:

"Most people I KNOW AND HAVE SPOKEN WITH THAT THINK EXACTLY LIKE ME think it is a joke when they hear Starr is the president of Baylor."


First, that is the worst part about you going to A&M, your betrayal of your heritage. You're like the French.

Second, the Polish army doesn't have more wins than anyone, at anything, ever.

Third, Baptists didn't allow dancing on campus. I'm a Methodist man, I thought that was stupid too. Don't saddle me with that crap.

Fourth, I don't wager on Baylor sports. It is bad enough already without losing money.

And finally, you know exactly what you can do with your honorary Fake Army degree.
RRL, I can't bear to see someone enticed by the Aggies into a life of sin and sheep molestation. If you should ever be in dire straits, surrounded by a bunch of hooting maroon-colored hooligans, know that we'll give you asylum down in Austin. Bevo accepts all who come to him in the fullness of time.
No it is based on articles like this:

Hello Regents and Liberty.
Dude, I read that article. You're going to have to show me where it says, or even provides evidence for:

"No school other university at our reputation level or higher, with the possible exception of the school he is at right now, would ever consider Starr for President. None."

I didn't see it. Not saying it isn't in there (yes I am), but just need you to point it out for me.

What I do think it says is, you find Christian/right wing teaching funny, or scary, or wrong, because you disagree with it. And so YOU think that article proves people are laughing at us, because that is what YOU are doing.

Sadly for YOU, we don't all agree with you. Or think like you. Or find it sad when our school hires a overly qualified person that happens to disagree with us.

But, I'm sure none of those facts will stop you from continuing to claim that your worldview is somehow the majority worldview.
Really Anon, that sounds an awful lot like Baylor Law. It's a religious school, and I tend to be touchy about when people get preachy at me... and I had no (as in zero) problems of a religious nature at Baylor.
I think it's pretty clear to anyone who's taken PC that if there is a God, he stays the hell away from the second floor of Baylor Law School.
I thought that article was a fairly even-handed description of what differences one might encounter at a religiously affiliated law school. In no way did it seem like it was negative towards the school, its dean, profs or students.
In fact, after reading that article, I can see much more clearly why Starr was considered for the job at Baylor.
While I agree that many people will not support the new President because of his place in political history, I think it wrong to assume that he will not be successful in improving the school.
I, however, would assume that there is no one out there that can somehow magically bring together the BU factions. It will obviously take lots of work as many of the stakeholders are entrenched in their demands.
The fact remains that this guy seems qualified for the job!....and Baylor will lose to the Aggies again next year.


Don't compare me or my people to the French. Lest I remind you, the Poles held out for over 1 month and destroyed 30% of Germany's artillery in WWII while getting invaded on the other front. The French...well they surrendered.

As for betting, it doesn't have to be money. You having to put up your honorary degree in your office for a week or so would suffice. If you win, I'll let you get your crayolas and make me a Baylor undergrad version just like your own.
So Prof., what topic would you like to debate Ken Starr on at the next Federalist Society function? I hear he'll be in town.
Oh, we could do a retrospective! From Jaworski to Starr, federal prosecutors at Baylor, narrated by Mark Osler, former AUSA.

Seriously, this needs to happen. Get people on it. Serr and Bates, stat!
Thanks for your thoughtful post, Mark. I am hopeful.
I would have been very happy with another somewhat polarizing but accomplished attorney and law prof. who had some political views many considered extreme, but got things done.
To me, Starr makes more sense though. His resume is superior, he has a longer track record of success as an administrator, and his "extreme" views tilt in the "right" direction for Baylor.
I hope this works. the more I read, the better I feel. There have been several comments from Pepperdine faculty that disagreed with him politically but are sad for their loss.
My hunch is that the "extreme" views are more a function of the media, i.e., "He gave $ to planned parenthood!" when in fact it was to a church camp = "he is responsible for Prop. 8!" when in fact he was a lawyer arguing that it was constitutional.
University presidents are primarily fund-raisers. Is Starr going to be an effective fund-raiser?
I think that many of the negative reactions to this announcement stem from the fact that most non-lawyers who hear the name Ken Starr think of the Clinton impeachment but don't know of Dean Starr's many accomplishments. A few years ago when I found out that he was the Dean at Pepperdine Law I was very surprised at first. Then, I read about the many things has done in his career. If you look at the man's resume and ignore the Clinton impeachment for a moment you realize that this is exactly the kind of person who would be desirable as a university president.

After that, the question then becomes: how does the Clinton impeachment figure into evaluating Starr as a potential president? To some, it is Starr's unpardonable sin. To others it is Starr's crowning moment. For most of us, it is a good lesson on the dangers of concentrated power in the hands of a government official (here, a prosecutor).

I think that over time that last group will be able to see past the Clinton issue and evaluate Starr for how he runs Baylor. We certainly should not ignore Starr's faults, but they don't need to keep him from doing good for Baylor and other causes in the future.
I could post this on FromMalibuToWaco but nobody would go there unless I told them to and I’m not about to do that. Requesting people read your blog post is a small step above requesting people read your tweet and once step below asking someone to look at your turd. So I’m donating my whimsy to the Razor. You’re welcome.

Reasons I like Ken Starr by Jonathan Swanburg

I’m pro Ken Starr for the following reasons:

a) Four or five years ago he saw me standing at an on-campus bus stop and offered me a ride to class. I cautiously accepted and he happily drove me to the business school. He introduced himself as Ken and we talked about the weather. The awkward sexual tension generally associated with getting in a stranger’s car was kept to a minimum.

b) Every time he took on a case he would practice arguments in front of the students at the law school, allowing a small panel to act as judges. Everyone in the room became a better advocate by watching him.

c) I dated a girl that referred to him as Uncle Ken. Apparently he spent a lot of time at her parent’s house and she couldn’t say enough good things about the guy. In addition to being a liberal, she was also a girl that supplied my roommate with weed in exchange for compensation which, by many, would classify her as a drug dealer.

d) He took Pepperdine from third tier to first tier in 5 years.

e) Future law school graduations will be extended by two to three hours in order to accommodate Dean Toben’s lengthy discussion of Ken Starr’s “intangibles” thus allowing the graduates and their families more time to savor the moment.

That is all.
This comment has been removed by the author.
I have grave concerns about naming Starr as the new president of Baylor as well, though my fears stem not from who he really is, but the mythology and image that he has nationally. He may be the most reasonable, genteel, intelligent, open-mainded, academically solid choice out there, but if people see him as a right wing ideolog, then that will have effects on Baylor. It will influence the type of people who give money to Baylor -- and the strings they will attach to it. His image will influence the kind of student that wants to come to Baylor and be associated with that kind of image. In the end, I am not as worried about the man as I am with the baggage he brings with him.
Anon. 10:01--

I think there is a good point in what you say. However, my impression is that over time that did not happen at Pepperdine-- it did not become more right-wing or perceived as more right-wing while he was there. In part, he seemed conscious of that, and encouraged people of various viewpoints to speak there and brought in a diverse group of faculty.

That's the best precedent I can look to, and it gives me hope.
One thing that strikes me is that it's got to be impossible to function at the level of the law the Starr comes from without getting branded by the media as some sort of an extremist. That's partially our fault. As consumers of media, we are completely uninterested in reasonable, centrist decisions.

I've not read any of Starr's work from the D.C. Appeals Court (and I'm not a lawyer, btw). But I find that when people are screaming about right-wing crazies or liberal commies it's not really true.

When the media is up in arms about the activists on the Supreme Court (whichever way), I find it interesting to read the oral argument transcripts and then the opinions. What I find more often than not are reasonable, thoughtful, and well-formed arguments on both sides.

I don't see a whole lot of ideology driving the cart with spurious arguments tossed out after the fact to support a foregone conclusion.

Looking at the notable cases Starr has worked on, I see a mix of issues, not some fiery-headed right-wing circus freak.

Let's call the independent counsel stint a neutral. Yeah, I know it seems anti-Dem or anti-Clinton, but perjury is perjury.

Since then he's done pro bono work on a death penalty case, and is working against at least part of SOX. Not to mention one of the first to file suit against the McCain-Feingold Act. Not exactly Republican ideologue hallmarks.

The Alaska school case Morse v. Frederick was kind of no-brainer in favor of the school. You can't really pin him as a but job for that one.

So his right-wing claim to fame hinges on Prop. 8 support, and defense of the Tobacco Company Lawsuits when he was at Kirkland & Ellis.

Okay, that sticks out. He argued against gay marriage and won in front of the California Supreme Court. But is that enough to brand him forever as a right-wing ideologue; a complete embarrassment to the university? A divisive figure?

Well, opinions are divisive. Beliefs are divisive. The question is about how much debate a person is open to, i.e. whether or not a given controversial conversation is allowed to take place and have each side considered for its merits.

In that regard, I have high hopes for Starr. Surely with his background he would understand the need for critical debate in an academic setting.

As for how he behaves as President. I sincerely hope that he does not take an active, hands-on role in the Law School or any other School. I hope that he immediately reaffirms certain core principles of liberal education, namely academic freedom and faculty governance.
interesting: I wonder what the Razors would consider "core principles of a liberal education." I'm betting there is some good debate on whether "academic freedom and faculty governance, or anything else for that matter" is or isn't a part of the "liberal education" in America today.

I agree there is some good debate material there, and I'd love to see it.

But I wouldn't want to phrase it as "liberal education in America today." I think that's both too broad and too narrow.

Too broad because there are a lot of junk colleges and universities around, and we shouldn't include them as potential models.

Too narrow because, liberal education in America today is overall not nearly as rigorous as it was even one generation ago, let alone two or three. I don't think there's a reason to debate only in terms of what seems comparatively good now.

If that's all we're after, we'll only ever achieve comparatively good.

Perhaps we should start by defining faculty governance and academic freedom before we start slinging around whether or not they are core values of a liberal education.

I'll try to be more brief in the future. I'm new, but I really like this blog and the discussions that take place here.

Cheers everyone, and Happy Mardi Gras!

Dean Starr's record and resume, the recommendations of folks left and right, his obvious intelligence, his reputation as a gentleman who listens, reflects, then acts, all bode well, in my view. I'm sure that everyone was surprised at the Dean's selection. Disappointment, even hostility, would certainly have followed announcement of any name up0n which the Regents may have settled, so I am not surprised, and I do not think that the Dean and the Regents were surprised, that a fair amount of vitriol would attend their choice.

Fortunately, so I believe his record attests, Baylor's new president is pretty well equipped to deal with this sort of thing, probably better than most.

There is reason for optimism.

"Suaviter in modo, Fortiter in re."
Proverbia latinae tam 100 A.D. sunt. Licet, Claudio Acquaviva ab 1543-1615 vixit. (Incidenter hic versionem conruptissimum probabiliter est)
Oh noez! I've been schooled by a classics scholarz! Please help me! I can't take it anymore!

I promise never to post on a law blog agin, until my rednek self lernz latin and stuff. and things. and things and stuff. or whateverz.


Okay, so what were we talking about before the posturing?

Yeah, I think it was Ken Starr . . . .
Mark, I am increasingly given to the impression that Dean Starr is a great person, and did some great things at Pepperdine. But I am still concerned over the baggage he brings. While dean of a law school, you mainly deal with lawyers who can, by and large, overcome perceptions (that is part of what we are trained to do.) But now he is the public face of an entire university. The constituencies are far flung and diverse and the president has a much higher national profile. Also his activities while dean (defending Blackwater, defending Prop 8, defending the school in the Morse case, etc.) were reasonable for a law dean because they could arguably be part of his legal mission. As a university president such divisive, high profile extra curricular activities are not imputed solely to the actor, but to the broader institution as well. I do hope I am proved wrong, but I am certainly keeping my eyes open on the chronicle job page all the same.

And MacViolinist, as someone who has worked in First Amendment law for 12 years, let me clarify that the Morse case was not a no-brainer, and the fact that the leader of an academic institution sided with and argued on behalf of those who would stiffle free speech is appalling. Coupled with his Blackwater ties, his defense of Prop 8, his defense of the tobacco industry... How does this not work out to a right wing ideology? But as I said before, I am not nearly as concerned about his views or ideology, I work with lots of people I don't agree with and I find such diversity of viewpoints stimulating and inspiring. My concern is that the baggage he brings will become the perception that students and donors have of Baylor.
Anonymous 10:01

Good points. I agree that it would be troubling to many if he litigated such issues while President.

On Prop. 8, I am not as critical of him as some people. I never would have voted for that proposition, and was surprised and appalled that it passed. However, it did, and that is a democratic expression of popular will. I think the better option is to take it back to the people, not try to win in the courts, and Ken Starr made clear that his argument was about democracy, not gay marriage.
I won't begrudge a lawyer his clients, but a defense of Prop. 8 on the grounds that it is "democratic" is exactly the kind of argument that makes me cringe. It dresses up an oppressive position in the clothing of freedom. It's a perversion of the rule of law. I'd feel worse toward Starr if it weren't the only argument he could've made, but still…
The idea that Prop 8 is oppressive makes me cringe. all laws are inherently moral in some respect. your morals may just differ from mine. Ultimately those laws are judged through a "moral" lens at some point, and attitudes can certainly change.
However, I fail to see how defending a popular vote as "democratic" is a perversion of the rule law. I think that's a bit of stretch, simply based on your own moral beliefs. Legally, it sounds to me like a valid and thoughtful argument for keeping in place a law drafted and passed by the populace at large.
while I understand there have been many immoral laws passed in the past, that doesn't mean any of them or the defense of them are perversions of the "rule of law." In fact I think the exact opposite and the time it takes and the work on the other side to get them overtturned are exactly the epitome of the rule of law.
Prop. 8 basically says a majority of the people in California have the right to tell a class of people whether they can get married. The majortity ought not be able to deny two consenting, non-related adults the ability to enter in to marriage. That privilege ought to attach as a right afforded all people in a civil society. It has little to do with morality (if one thinks it's immoral, then one does not have to marry a person of the same gender). It's analogous to miscegenation laws.
why would you only allow two non-related people to marry? Isn't that applying the same standard that the people of California did. Why would you limit two consenting adults simply by their familial relationship? If the risk is health of children, those people can always avoid having children.
Or why limit it to "two" people. Aren't you denying the same to groups of 3+ people who want the same rights?
Point is, it has everything to do with morality. Laws are simply an extension of what a society believes is accceptable behavior. Right now the society is in favor of limiting this type of "marriage." What you call a perversion of the law is simply based on your own beliefs of what is morally acceptable and what you believe is right, but Starr defending the vote as "legally sound" does not make him an oppressive individual with baggage.
Two things, quickly (it's lunch time! My favorite time of the day!):

(1) While all laws contain minimal moral content (cf. Hart), some moral propositions aren't laws, and some laws do not carry moral disapproval. Therefore, morality is an insufficient explanation for the totality of a given law. I understand that a majority of CA voters disapprove of gay marriage: but voter disapproval is not all that is required. We wouldn't let, for example, voters say that a black man cannot marry a white woman, because it would violate the equal protection clause.

I think this reasoning extends to sexual orientation, but not to say incest (which carries with it more than a moral disapproval) or polygamy (which creates many more problems on its own). While I agree anti-incest and anti-polygamy laws have a moral component, it's not just because we find them morally objectionable that they're illegal.

(2) I don't think Starr's stance on Prop. 8 makes him oppressive or includes baggage. I am not anti-Starr. I just think his legal argument on Prop. 8 is disingenuous, and to dress up what is essentially an example of "tyranny of the majority" in the cloak of democracy above and beyond the organic law that is supposed to protect certain minority rights and interests against an overzealous majority is in error. Honest error, but error.
Explain to me which laws don't contain a moral component? Either we prohibit behavior because we find it morally wrong, or we allow behavior because we find it wrong to disallow it? It's all based on your moral values.

what other reasons do you believe that anti-incest and anti-polygamy laws exist if not because society finds them socially unacceptable? While not trying to slide down the slope too much, I'll make the argument now that pretty much any of the arguments for/against these will
1) be based on morals or/
2) based on some of the same arguments that applied to miscegenation laws in the past.

you say that you don't characterize Starr in the terms I noted, but in the same paragraph call the position he took "tyranical, disingenuous, and overzealous,"
I think it's a bit odd to claim to believe that the man doesn't fit into those categories since that very position is the reason so many are upset at his hire and claim he is not fit for the job.

I'm sure you, like me, would hope that he wouldn't simply be a gun-for-hire and took on the positions to pad his resume. And if he did believe in the position itself, does that mean he is unqualified or a fault you are willing to forgive. In the first instance, you would have to admit that his qualifications in the eyes of his detractors are determined by moral positions and not much else. In the second instance, I think we would all be suprised!
A trivial example of non-moral laws are things like procedural laws, securities regulations, etc.

Additional reasons against incest might be the increased chance for genetic defects, the possibility for multi-generational exploitation (e.g., child molestation). For polygamy, they include increasing the complexity of divorce/separation/custody proceedings, and a rejection of the traditional misogyny apparent in polygamous cultures. I admit that polygamy is a lot harder to except to than incest (I share your distaste of slippery slopes) and say that much anti-polygamy/bigamy regulation is shaped by socio-cultural factors that are to a certain degree symbiotic with morality (e.g., anti-Mormonism in the US territories). Still, I don't think that agreeing that equal protection requires that we let any two consenting, non-related adults get married necessarily means that a fortiori we must allow multi-partner marriages.

However, I have to say that a decision along those lines would not be entirely inconsistent with my reasoning, were a court to follow it.

One may support a position in a disingenuous way, or support a position that is deemed tyrannical or overzealous with being so onesself. As much as they annoy us, I don't think defense attorneys actually support murderers, rapists and thieves, though they appear on their behalf often enough. Similarly, I don't think Starr is merely a hired gun: I'm sure he is against marriage equality, etc. That's OK, though.

I don't particularly care that he disagrees with me on these positions. Everyone is entitled to their own views, and I am aware of my own fallibility. If I required that everyone who hold office of any kind agree with me, I suspect I would be the only qualified person (in my eyes). I think Starr is qualified and will do a good job, even if I find fault with him on tangential and possibly irrelevant issues.

So... surprise?
Just for kicks, because I'm impressed this is still going:

1. Procedural rules, securities regulations, etc. - certainly they have a moral/ethical component. The idea of fairness. Without the basic understanding that we need to be fair in how we deal with one another, these rules would never exist.

2. You say that the possiblity of molestation is a reason to stop incest. I agree. But it is certainly a moral one. In a country with no moral compass, no regard for the protection of children, no concept of right/wrong, why would molestation be a concern?

3. Genetic defects seems to be the same. We don't want to encourage incest because it leads to genetic defects. We don't want genetic defects, at least in part, because those people born with such defects can have hard lives and be subject to ridicule. That is a moral choice, at least partially.

4. All of the reasons you give for being anti-polygamy are moral ones. Why should we/do we care whether someone gets a divorce, gets seperated, has custody of their child. Those are moral questions, bound up in a traditional understanding of family. And the voice of anyone standing up against misogyny is a voice that comes from a moral place. It violates the morals of a democratic society to subjugate women in that manner. It is an inherently moral argument.

Laws don't exist in a vacuum. Every law involves some choice made on the part of the person/people that created it. And that choice is a moral one.

The people in favor of gay marriage are making a moral argument. They are saying it is WRONG not to allow homosexuals to marry. And that argument is tied up in your very understanding of right and wrong.
i hopped on the razor to read what mark osler, who knows ken starr and whose opinions seem to be respected by many, had to say about the interesting and controversial naming of ken starr as president of baylor university.
for laughs, i figured i'd check out the comments. i got plenty.
there were some good points made, squeezed between the many, many ridiculously myopic, uninformed (or misinformed) opinions.
what stands out to me-- and i don't know whether starr will ultimately be a great success or massive failure as president of baylor university-- is osler's concise statement, "It means the University President will be a Constitutional scholar with a national reputation. I don't see how that can be bad."
the baylor community is highly combustible, and is liable to explode at any given moment. there's no telling if bill underwood could have brought the so-called "baylor family" together.
likewise, there's no telling if starr will be able to succeed in that task, among the many he is charged with.
however, endorsements far and wide from those familiar with starr's accomplishments as a higher education administrator-- completely unrelated to his handling (or mishandling, if you so choose) of the whitewater/lewinsky probe-- indicate that he has a great chance to be successful at baylor.
when i combine that with the endorsements of those who know him personally, and are familiar with his personal value system/integrity, i see no reason not to give the man a chance to be successful. at least give him a chance beyond june 1.
thanks, prof. osler, for the insight.
thanks to many of the rest of you (not all, by any means) for some good laughs.
i would now like to proclaim that, despite a nice opening victory for the u.s. hockey team, the canadians are going to run roughshod over the field. it's not even fair.
maybe starr could be tasked between now and june 1 to investigate how a country that has saddled us with nickelback, thinks "strange brew" is a think-piece film, and didn't have the wherewithal to hang onto warren moon could produce such ridiculously talented hockey teams.
I think we're talking past each other. I agree that laws have a moral component, and are motivated by values.

I think morality is a necessary but not sufficient condition for a law to exist. Most laws have some non-moral content; and some morals have non-legal content.

I think it is ethically wrong to deny homosexuals the right to marry, yes, becaue it is a violation of human dignity. I think it is legally wrong because it is an equal protection violation. The two concepts are related but distinct.

I understand that Starr may likely think that it is ethically wrong to permit homosexuals to marry becuase of his religion, a view that I do not share, but nevertheless respect his right to hold. I do not consider being having an honest belief I nevertheless think is wrong a moral failure, or a failure of character, certainly not one that would disqualify one from heading a private university.

If Starr believes that Prop. 8 is not an equal protection violation, that's one thing (and a perfectly valid, non-disingenuous legal argument).

If, on the other hand, Starr believes that equal protection violations do no matter because the majority of Californian voters agree that homosexuals should not marry, I think that's a disingenuous legal argument, and think so without passing a moral judgment on the character of the man who made it. Moral and good people may sometimes make bad or disingenuous arguments without suffering the taint of being labeled as morally objectionable people. Sometimes you have to dance with those that brought you. Therefore, the fact that Starr may have made such an argument does not lead me to infer that he is a person of low moral character or is a "bad" person, but rather merely that I disapprove of his legal argument in the case, as a purely professioanl matter.
The complications from a polygamist marriage are no more complicated than figuring out oil well leases and who's entitled to what. I blocked all of that out shortly after the bar exam, to the point that I have an irrational fear of fractions.

I agree with RRL that procedural laws and securities regulations are rooted in morals. What one does in the courtroom or on the trading floor are dictated by what is considered fair by society. All of my former-defense-attorney-judges seem to think it's unfair that I get to introduce the defendant's statement, so they allow them to circumvent the rules to talk about whatever they want when they take the stand. Hence, it's an issue of what the judge thinks is right or wrong.

I might add that while there is an increased risk of genetic defect with regards to incest, it's not absolute, and why should be prevent to consenting adults from marrying simply because the possibility exists? I might add that yes, the same genetic defect argument was made when miscegenation laws were being argued.

To not kill the point or the purpose of the original post, I'm just pointing out that the negativity behind the choice of Starr was based simply on his affirmation of his moral beliefs, not whether or not he was qualified to lead the University. I found it unfair, especially considering that the same argument is used to support positions that are considered to fall on the other side of the political spectrum.
The other point is that characterizing Prop 8 as oppressive etc is simply rooted in moral values, which is fine, so long as one admits that it is based on such values, and one doesn't try to rationalize the opposition to Prop 8 as being on the "right side of the law." Which is what I would say Starr's argument was when he supported the law.
kenn Starr as in the Monica lewinsky guy? I thought he had died.
two words: cautious optimism.

That's a great attitude, and one that others will adopt.
Three words: boom, boom, pow.
I look forward to seeing what kind of impact he has on the law school. BLS feels like a separate entity from the rest of BU. I would like to see him start a program where he speaks at the law school. His experience would be invaluable to us, regardless of our personal beliefs.
Anonymous 10:01,

I respect your work in first amendment law. I won't try to show a legal argument because I'm not equipped to do so.

But I don't think that 1st amendment rights are absolute. They are limited at best, and the rights of minors are even more murky.

In my opinion, sending a kid to school gives the school a certain amount of control over the kid's rights.

I call it a no-brainer because I can't imagine a situation where advocating a crime could be a defensible act of speech under the auspices of a school event.

Maybe I don't understand the case as well as I should. What if the sign had said "Murder Black People for Jesus?"

Would you suggest that is covered by the 1st? If not, why? What's the substantive difference? Maybe there's a glaring issue that I'm not seeing, but if so, I'm not seeing it.

If it's the nature of the crime, fine. I can deal with that. But then what you are talking about is that bong hits shouldn't really be a crime. And that's a completely different issue from the freedom of speech.

I agree that there's quite a bit to be considered. It would be fairly easy to label him as a right-wing ideologue. But I'm not so sure for the reasons I mentioned before.

To me there's enough on both sides to say that there's room to be hopeful.

On the other hand, there's enough on both sides to be very worried. There is also the issue that the board of regents hasn't made a good decision for the university in something like 15 years, and there's little reason to think they've made any kind of a major change.

We'll see what happens. Whether we want to or not.
I'm glad the Law School is happy. I'm glad Mark found Starr to be a congenial friend. I'm happy for those who are happy. After all, "rejoice with those who rejoice," as an ancient liberal once said. But. Ken Starr is not becoming dean of the law school (hey, was he even considered?). He is not becoming president of a state university (for which, contrary to certain former posters, he is ideal for: Texas=Republican, anti-Clinton, anti-gay marriage, anti--the list goes on. Oh, and fundamentalistic and legalistic..death penalty, anyone?) If you didn't catch the theme, the last disaster president we had was a Calvinistic fundamentalist; when hired, also seen as charming and brilliant. He had also been a dean, albeit briefly. Starr has NOT been a president. Zero experience. Never been elected by a broad, popular electorate, nor has he run for office. Now he must deal with an exceptionally diverse constituency. Charm and smarts go just so far (ask Clinton). He is not just commander-in-chief of the law school, but the religion department and the divinity school. Maybe he would be the best ever teaching Con law, but I, for one, sure as hell don't want him picking the next dean of the seminary or influencing the choice of religion professors. Perhaps, though, his life-long religion (hard-core, non-instrumental, farthest-right of the three branches of the Disciples Church), like John Kennedy's Catholicism, scarcely influences his thinking, his moralism. Perhaps he was only a conformist by regularly attending and teaching Bible classes while dean at Pepperdine and will be another as he, I'm sure, sincerely, demonstrates how little it all means to him as he joins a Baptist church in Waco. Perhaps. I do not care about the denomination or faith of any president...except the Religion of Fundamentalism. It is poison, and stronger than any creed. Perhaps Ken has been misunderstood, merely accidentally used often as a lawyer by such causes. His zeal in asking, yea, pursuing, the bid to prosecute the Lewinsky case, which he regretted later (it seemed to compromise his impartiality) to the contrary notwithstanding. Perhaps. Or that professors on committees, unlike the Regents who actually did the electing, did not consider that important. We'll see now, won't we? I wish to be optimistic. But anyone who believes that only water in their tank gets you into heaven is not usually interested in inclusiveness.
I'm so amazed at the myriad number of people who feel Ken Starr will be divisive. Will he be any more so than Robert Sloan, John Lilley - or heaven help us, the current interim has been with the alumni association? I think not.

Ken Starr did a job 12 or 13 years ago - one that you either despised or appreciated. It's done. Get over it. Remember that Paul wrote to forget those things which are behind and reach forth to those things which are ahead. I think it's time that every single one of us who love Baylor need to do - start with that clean slate on June 1. Give Ken Starr a chance - and give us a chance to get over ourselves. I love Baylor and have since I was a child when my father used to talk to me about "when you go to Baylor" - fifty years after that and 30 after I graduated I have a good feeling about Ken Starr and what he will do for my alma mater.
Dr. Osler:

I fully respect you but I totally disagree. I do not think Dean Starr is a good choice for many reasons. First, why are we getting another Dean of a school to be President of one of the largest Baptist Universities in the world? WE need a President who has been a President and can be Presidential. I think we also need someone who has pretty strong ties to TX or at least the Southwest. Second, how is he going to be an effective fundraiser with very little fundraising experience? I know we have departments for that but my experience has shown me that universities with gifted and experienced fundraisers at the top do better in this department and most other departments. Third, what happened to the idea of becoming a top tier school like a Yale or Harvard or Princeton? I do not think being a top tier school is everything but that bold ambition was one reason why I chose to attend Baylor for Grad School and seriously considered it for PHD work instead of another school like Duke, George Washington, Emory, etc. Fourth, I really do not see exactly what Dean Starr brings to the table other than some great success at a good law school from the West. How does this equip Dean Starr or anybody to be the President we need during these difficult and transitional times? Fifth,if we wanted someone with some "right leaning" credentials, why not go for Vice President Dick Cheney or political strategist Carl Rove? I do not like or respect either of these guys but at least they have accomplishments that could be useful in running a large institution--albeit dubious. Finally, how in the world is Dean Starr going to be anything more than another "transition" President? He does not have the academic chops for this task and I am very disappointed in my Bear Country for making such a choice. I am pretty certain he cannot cast a bold vision, help lead a bold vision, or be a bold visionary. Maybe I expect too much! As I close, I hope Dean Starr proves me wrong but I give him 2-4 years and then we will be doing this all over again!

Brint Hilliard,
BU Truett Grad 1999
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