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In 1989 Starr made the unusual decision to step down from lifetime appointment to the court to become George Bush's solicitor general, the lawyer who argues Administration positions before the Supreme Court. As solicitor general, he was considered by liberals to be an improvement over Charles Fried, who had been accused by them of politicizing the job to pursue the Reagan agenda on such issues as abortion, the rights of the accused and affirmative action. All the same, when a seat opened up on the Supreme Court in 1990, Starr was too well known as an opponent of abortion rights, and yet too moderate for the Republican right wing, for the cautious Bush White House to place him on the court. The prize went to David Souter. After Bush lost to Clinton, Starr joined the Washington office of the high-powered Chicago-based law firm Kirkland & Ellis. If he had missed the chance for the Supreme Court seat, he would at least have the compensation of a million-dollar-plus income.
Then came the call to be special prosecutor, and with it instant charges that Starr was too partisan for the job. He was chosen to replace a more moderate Republican, Robert Fiske, following an unusual luncheon attended by Judge David Sentelle, the head of the three-judge panel that named Starr, and conservative Republican Senators Jesse Helms and Lauch Faircloth, one of Fiske's loudest critics. Sentelle and Helms have denied discussing Starr's appointment. By that time Starr had nearly entered the Virginia Republican Senate primary that Oliver North eventually won, and had considered writing a Supreme Court brief supporting Paula Jones' argument that her case should be allowed to go forward while Clinton was in office. Citing questions about his fairness, the New York Times called for Starr to resign almost as soon as he was appointed.
Even now, however, it's not hard to find Democrats around Washington who scoff at the idea of Ken Starr as the right-wing avenger. "Not the Ken Starr I know," says Alan B. Morrison, who co-founded the Public Citizen Litigation Group with Ralph Nader, and has often argued before Starr's court. What does matter to Starr, he says, is the nature of his suspicions against Clinton. "Ken thinks the President behaved badly," Morrison says. "In his mind, having an affair with a 21-year-old intern would be bad behavior for anybody."
Criticism of Starr's role in the Lewinsky affair begins with his entry into it. He got the authority from Attorney General Janet Reno and a three-judge panel to expand his jurisdiction, but not until days after he had wired Linda Tripp to tape Lewinsky. Starr's defenders say he was simply pursuing a credible lead that walked in the door. "There's a pretty decent argument it's related to what he's already doing," says John Barrett, who was an attorney in the Iran-contra probe of Lawrence Walsh. But to Starr's critics, the wiring of Tripp was outside his legal authority because its connection to Whitewater was so tenuous. Starr also arguably subverted the protections built into the independent-counsel law by making it impossible for the Justice Department to conduct its own investigation, as it is legally required to, before he started taping Lewinsky. "It sounds like the Justice Department was presented with a fait accompli," says Wake Forest University professor Katy Harriger, author of a book on independent counsels.