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Laurence Tribe unfiltered on Sonia Sotomayor

By Al Kamen

Harvard Law Professor Laurence H. Tribe minced no words in a May 2009 letter to his former student, President Obama, urging Obama to nominate Harvard Law Dean Elena Kagan to fill retiring Justice David Souter's seat on the Supreme Court.

The goal should be to keep Justice Anthony Kennedy "from drifting" to the right, Tribe wrote, which is something Souter was able to do.

But "neither [Justices] Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind," Tribe opined.

So let's look at the possible candidates, Tribe said in the letter, which was obtained by another former Tribe student, Ed Whelan, head of the Ethics and Public Policy Center, who posted it on his nationalreview.com blog.

How about appeals Judge Sonia Sotomayor? "Bluntly put," Tribe said, "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" conservative wing of the court.

Maybe you could pick Diane Wood, Tribe wrote, who's really smart, but she's ten years older than the real standout, Kagan, who combines "intellectual brilliance and political skill." Kagan would be "a much more formidable match for Justice Scalia than Justice Breyer has been -- and certainly more than a Justice Sotomayor or a Justice Wood could be."

(Obama chose Sotomayor to replace Souter, and the next year he tapped Kagan to replace Justice John Paul Stevens.)

"If I might add a very brief personal note," Tribe began in a pitch for a job, "I can hardly contain my enthusiasm at your first hundred days" though big challenges remain. "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 [Justice Department] position dealing with the rule of law."

Tribe got the newly created "senior counselor for access to justice" job, which, the New York Times reported in April, "has a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington." At least it's steady work.

When we reached Tribe Thursday, he was still in the dentist's chair at the end of having root canal surgery. After a pause, trying to decide which was worse, the call or the surgery, he said he "couldn't comment on a personal recommendation made to the president that was leaked."
"Certainly I stand by what I said about Justice Kagan," he commented. "And any attempt to make negative inferences about my views of the other justices -- whom I know personally and respect greatly -- would be mistaken," he said, and "would fail to take into account the surrounding circumstances." Such as?

"Such as personal conferences with the president," he offered.

Negative inferences? "Not nearly as smart as she seems to think she is" and "something of a bully?" Don't have to infer much.

Staff writer Robert Barnes contributed to this report.

By Rachel Weiner  | October 28, 2010; 5:11 PM ET
Categories:  44 The Obama Presidency, Barack Obama, Supreme Court  
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Posted by: itkonlyyou341 | October 29, 2010 11:04 AM | Report abuse

As a former student of Professor Tribe's and a career Department of Justice attorney, I want to say that Professor Tribe is one of the finest people I have ever known. The following example of his simple humanity is revealing: In my first year, I was fortunate to have been in a "small group" section of about a dozen students that was taught by Professor Tribe. The next year, I signed up for his Evidence class, in which about 300 students enrolled. Early in the term, we were going over a point of law that confused me mightily. Out of the 300 students, Professor Tribe saw the confused look on my face. He addressed me directly, asking if I had a question. Initially I was horrified, because I was so lost that I could not even formulate a question. But I bumbled out something. Professor Tribe figured out what my confusion was, reformulated my words into the question that I actually needed answering, and provided a clear answer. It is rare that someone as brilliant as Professor Tribe would also be so caring of individual people. It is a loss for the country that, when he was at an age when he might have been placed on the Supreme Court, he was not.

Posted by: vista1969 | October 29, 2010 6:41 AM | Report abuse

As a former student of Professor Tribe's and a career Department of Justice attorney, I want to say that Professor Tribe is one of the finest people I have ever known. The following example of his simple humanity is revealing: In my first year, I was fortunate to have been in a "small group" section of about a dozen students that was taught by Professor Tribe. The next year, I signed up for his Evidence class, in which about 300 students enrolled. Early in the term, we were going over a point of law that confused me mightily. Out of the 300 students, Professor Tribe saw the confused look on my face. He addressed me directly, asking if I had a question. Initially I was horrified, because I was so lost that I could not even formulate a question. But I bumbled out something. Professor Tribe figured out what my confusion was, reformulated my words into the question that I actually needed answering, and provided a clear answer. It is rare that someone as brilliant as Professor Tribe would also be so caring of individual people. It is a loss for the country that, when he was at an age when he might have been placed on the Supreme Court, he was not.

Posted by: vista1969 | October 29, 2010 6:40 AM | Report abuse

You gotta love that Whalen, the guy who leaked the letter, is listed as " head of the Ethics and Public Policy Center,"

Who is the number two man there, Bernie Madoff?

Posted by: 54465446 | October 28, 2010 10:00 PM | Report abuse

OIFVet06 comes off as a slovenly overweight drunk..

Posted by: newagent99 | October 28, 2010 7:26 PM | Report abuse

yawn, so, she is just another overweight, pushy broad....what else is new.

Posted by: SofaKingCool2009 | October 28, 2010 7:17 PM | Report abuse


Apparently, Tribe is not as smart as he thought he was either. Kagan came off as a slovenly sorority house drunk during her Senate confirmation hearings. That description seems to fit her past life as well. As for Sotomayor, she was just a flat out liar, contemptuous of the Constitution and looking for a job, so Tribe was right about her, but not so right that he didn't get nudged to the bottom of Obama's bus like so many others who came bearing gifts, real or perceived.

Finally, after this story, Justice Kennedy will probably know not to be stampeded and intimidated by Kagan since that is why she was “plugged” into the Court by this president.

Posted by: OIFVet06 | October 28, 2010 7:11 PM | Report abuse

Tribe aint as bright as he believes.

Posted by: newagent99 | October 28, 2010 6:24 PM | Report abuse


not only is Tribe not bright, he has been
irrelevent for years and should retire.


The confidants and advisors of the president are an unfortuante bunch

Posted by: JohnAdams1 | October 28, 2010 6:21 PM | Report abuse

We have lost something when an advisor can not give an opinion in confidence. Have we reached a point that one must be guarded at all times? That would be dreadful. (I am not defending racism or other illegal bias but rather defending the ability and right to give a frank opinion to a friend.)
How did this letter become public?

Posted by: osler1 | October 28, 2010 6:20 PM | Report abuse

Tribe aint as bright as he believes.

Posted by: newagent99 | October 28, 2010 6:15 PM | Report abuse

Tribe aint as bright as he believes.

Posted by: newagent99 | October 28, 2010 6:06 PM | Report abuse

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