In announcing that it was ousting Independent Counsel Robert Fiske, chosen by Attorney General Janet Reno to investigate Whitewater-Madison Guaranty S&L matters, a special three-judge court issued this statement: "It is not our intent to impugn the attorney general's appointee, but rather to reflect the intent of the act that the actor be protected against perceptions of conflict. . . As Fiske was appointed by the incumbent administration the court therefore deems it in the best interest of the appearance of independence contemplated by the act that a person not affiliated with the incumbent administration be appointed."
Makes sense. But what does not make sense is that the three-judge court then appointed a new independent counsel so closely affiliated with the previous two Republican administrations that it is absurd to expect he will be perceived as independent. Independence as contemplated in the Independent Counsel Act means an appointee should be neither a loyalist nor an adversary.
Mr. Starr's history includes the following: Law clerk to Chief Justice Warren Burger, a Nixon Republican. Law partner of William French Smith, then his counselor when Mr. Smith was Ronald Reagan's attorney general. A Reagan appointee to the U.S. Court of Appeals for the District of Columbia Circuit. George Bush's solicitor general.
Eddie Mahe, a Republican Party consultant, exulted after Mr. Starr was named to replace Mr. Fiske, who is also a member of the Republican Party: "Fiske was one of those Northeast establishment types that has nothing to do with being a Republican. Starr's a real Republican." Maybe too real insofar as this particular job is concerned. In addition to the matter of his close association with Republican politics and politicos, he also has publicly supported Paula Corbin Jones in her sexual harassment suit against President Clinton.
It is easy to suspect that politics is at the heart of this ouster and appointment. When Congress re-enacted the independent counsel act in June, with overwhelming Republican support, it expressly allowed the court to re-appoint Mr. Fiske, whose original appointment was made under another statute. But now that Mr. Fiske's early reports have not been damning enough of the Clintons, several Republican senators, including Senate Minority Leader Bob Dole, have called for his head. Ten Republican representatives sent a letter to the three judges asking that they oust Mr. Fiske.
All that mildly taints the decision of the judges (two Republicans, one Democrat) to get rid of Mr. Fiske. For them then to replace him with someone of Mr. Starr's reputation makes it much worse. It is not our intent to impugn Mr. Starr's integrity or skill, but rather we deem it to be in the best interest of the appearance of independence for a special counsel in a case like this to be as neutral as possible.