- The Washington Times - Monday, February 16, 2009

BOSTON - What goes around comes around, according to prominent conservative attorney Kenneth W. Starr.

Mr. Starr told a group of Mormon lawyers Friday that President Obama faces an uphill battle over his Supreme Court nominees because, as a senator, he opposed two of President George W. Bush’s Supreme Court picks.

Mr. Starr, who was independent counsel during President Bill Clinton’s Whitewater and Monica Lewinsky scandals, said an aging Supreme Court means that Mr. Obama could nominate two or more people to the high court.

His nominations could lead to showdowns with Senate Republicans, who are angry that Democrats such as Mr. Obama who filibustered and voted against the Bush picks. Mr. Obama joined a filibuster against Samuel A. Alito Jr. and voted against confirmation of John G. Roberts Jr. as chief justice.

Mr. Starr pointed out that Mr. Obama enters office with healthy Democratic majorities in the House and Senate, but “the salience of this very enviable position, politically, for our president is brought home by the president’s own approach to the high court during his years of service as a United States senator.”

He added, “There is one historical factoid of note: He is the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee. Never before has that happened.”

White House spokesman Ben LaBolt declined to comment on Mr. Starr’s remarks.

During his speech at the Old South Meeting House in downtown Boston, Mr. Starr told a crowd of about 400 registrants for the annual J. Reuben Clark Law Society conference that they should consider some important “demographic facts” about the court. He noted that Justice John Paul Stevens is 88, four members of the Supreme Court are in their 70s and one is in his 60s.

“These two key facts, perhaps that was three, suggest that President Obama will, during his four years, or eight years, as president of the United States, make one or two or perhaps more appointments to the nation’s highest court,” Mr. Starr said.

Mr. Starr quoted from a Nov. 17 article in The Washington Times about a potential political showdown for Mr. Obama.

On another issue, Mr. Starr said he would not speak at length about his March 5 scheduled appearance before the California Supreme Court to argue in favor of Proposition 8, the state ban on gay marriage. Members of the Church of Jesus Christ of Latter-day Saints campaigned heavily for the measure before voters approved it on the November ballot.

“One of my precepts is never argue outside the courtroom, on the courthouse steps, so to speak, your case. At the same time, I recognize how important the issue is, so a compromise that occurred to me is simply to share with you several sentences, briefly, from two sources of law.”

Mr. Starr cited opinions from the California Supreme Court about constraints on the powers of public officials and an excerpt from the state’s constitution stipulating that marriage is a union between one man and one woman.