Friday, October 29, 2010

Ouch: What Larry Tribe really thinks of Sonia Sotomayor

Ed Whelan has a letter that Larry Tribe wrote President Obama in order to forestall the nomination of Sonia Sotomayor to the Souter seat. Tribe was worried that neither Justice Breyer nor Justice Ginsburg would be strong enough to sway Justice Kennedy on key cases.
Bluntly put, 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 on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.
Meanwhile, Matthew J. Franck focuses on how revealingly Tribe writes about his goals for a Supreme Court justice. It has nothing, of course, to do with a straightforward, unbiased interpretation of the Constitution.
In the first sentence of his letter, Professor Tribe, a teacher of constitutional law at one of America’s great educational institutions, declares that the Souter vacancy presents the president with “an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” On the second page of the letter, Tribe goes on to say that he would like a justice who can “advanc[e] a humane and yet suitably cautious conception of the rule of law and the role of courts in the pursuit of justice.” That line sounds fairly anodyne taken by itself. But a moment later he describes (and flatteringly attributes to Obama) a “simultaneously progressive and yet principled, pragmatic and yet constrained, approach to law and justice” as the goal for which to aim.

In this fog of words, pay attention to the “yets” and to the dominant adjectives. Tribe desires a Court that moves the country in a “progressive” direction–not one that is guided by neutral principles of the rule of law, derived from a Constitution that has its own integrity. He wants a “pragmatically progressive” Court, to be sure–but that only means not frightening the horses as you go about a business that would be too shocking if it were too obvious. He wants a “humane” jurisprudence, “yet suitably cautious.” A “pragmatic” approach and “yet [a] constrained” one. (Hang on, wasn’t “pragmatic” serving earlier to rein in the “progressive” stuff? But now it’s the pragmatic that needs constraining. Go figure.) It must be “simultaneously progressive and yet principled.”

It’s nice to see that in Professor Tribe’s legal world, “progressive” is at odds with “principled.” It’s equally interesting to note that the goal is clearly progressivism, and that the qualifiers cautious, pragmatic, constrained, and even principled are all about giving the American people that spoonful of sugar that makes the bitter medicine go down.

The importance of this letter goes beyond what it says about the personalities involved. It reveals that when they think we are not paying attention, liberal jurists and their political allies are quite frank with each other about their view of the Supreme Court as just another political institution, and the Constitution as a document that does not shape the Court’s behavior but is instead shaped by it. This is actually just the way many legal scholars talk and write among themselves, but they usually take pains to conceal this instrumentally political view of judging when they enter the political arena, such as in testimony during Supreme Court nominations. The Tribe letter shows that in the back channels of political maneuvering, they revert to type.
Tribe is trying to dismiss his letter and say that he didn't mean any insult to either Justice Breyer or Justice Kennedy despite his open writing about Kennedy's apparent wavery approach to decision-making and Breyer's weakness in persuading Kennedy.

Another nice touch in this all-too-revealing letter is how Tribe ends the letter by asking for a new position to be created in the Justice Department on the rule of law just for Larry Tribe.