Saturday, October 30, 2010


In something of a conservative-side October Surprise, Ed Whelan has produced for National Review Online an extraordinary and amazingly revealing—and embarrassing—letter from Laurence Tribe to his former protégé Barack Obama (this is some major leakage from the White House, but that’s a story for another time), written in the weeks before the elevation of Sonia Sotomayor to the Supreme Court, which has set blogospheric drums a-beatin’ and even zetzed the sclerotic arteries of the MSM. 

The subject, inter alia, is Ms. Sotomayor’s unsuitability, and Mr. Tribe deploys his missive to advise the president of her limited brain-power, and to suggest she hasn’t got the wherewithal to steer the apparently empty vessel that is the mind of Justice Anthony Kennedy toward the more right-thinking (liberal-left variety) Tribe-Obama-Harvard-Establishment-approved port of Constitutional interpretation. To say nothing of helping guide the Court itself, unmoored for so long from its liberal bollards by ultra-conservative pilots, back into the safe slip (and glory days) of Justices Warren, Douglas, Marshall, et al.  “Bluntly put,” he writes, with all judiciousness, “she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court. . . .” 

Justices Breyer and Ginsburg haven’t got “much of a purchase on Tony Kennedy’s mind,” either, come to that: 

David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty. 

(Speaking of approved liberalism—if memory serves, Justice Souter earned those Tribal accolades the “stealthy” way, only after molting the conservative juridical skin with which he’d camouflaged himself to get the nomination to emerge as one of the most liberal members of the Court.) 

So, first, on behalf of Justices Sotomayor and Kennedy both: OUCH!! I have no use for either of them, but Mr. Tribe does—that is, if “one of the top constitutional law scholars in the country” ever wants to argue a case before the Court again. On the other hand, his letter is laden, dripping, oozing with praise for Elena Kagan (he owes her one, a big one, for closing the case on his plagiarizing), who now sits on the bench alongside the dumb bully and the void mind, and might be inclined to give him a more forgiving hearing. 

On the third hand, Mr. Tribe’s sullying of himself feels final, the ruination of his reputation inexorable, and not because of the name-calling and the dissing, but because of the pathetic grovelling and job-begging that comes at the close of his letter:  

And, if I might add a very brief personal note, I can hardly contain my enthusiasm at your first hundred days. I don’t underestimate the magnitude of the challenges that remain, and I continue to hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly-created DOJ position dealing with the rule of law, but my main sentiment at the moment is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.

He has gone to work for the Justice Department, but at a post considerably lower than the one he created for himself in his daydreams. Rather than “dealing with the rule of law,” he’s got a job helping poor people charged with crimes get access to legal counsel. Didn’t that used to be called the public defender’s office? In any case, it’s all the reward such a blatant piece of flattery to such a contemptuous and ungenerous president as the one who has given him so much pride and pleasure deserves.  

1 comment:

  1. The plethora of 5-4 decisions in the Court in recent years has been very bad, suggesting that ideology decides the rule of law and making the appointment of justices an ideological battle. If Supreme Court justices cannot convince each other by argument, what are the chances for real discussion among citizens? When is the last time a Supreme Court opinion - majority or dissenting - clarified in the public's mind what America stands for or the direction America should go?