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Monday, November 01, 2010

Whoa...

Not sure how I missed this earlier, but Larry Tribe's letter to POTUS re: SCOTUS nominations from last year was leaked earlier in the week. His written candor is admirable (crazy?), though now he believes the gist of his counsel was misguided. Still, I don't think too many of LT's RA's will be Sotomayor's clerks anytime soon. When the story of the leak broke, Tribe was available for comment to the WSJ's Bravin:

Bravin caught up with Tribe today, who managed to retain a sense of humor about the revelation. “Ironically, I’m in the middle of a root canal procedure,” Tribe said in an email. “The endodontist has let me leave the chair long enough for me to say this much:

“I don’t comment on my confidential advice to the president, and I regarded the letter I wrote in May 2009 as confidential. The fact that it was leaked doesn’t change my policy. I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I certainly regret any contrary implication some may try to I draw from this letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her appointment were amply refuted by the closer study I was later able to give her record and that have been fully negated by her performance as a justice.”

Phew, glad that's all cleared up now. I guess the Zuckerberg effect has still not restrained people from tendering confidential advice or reactions in writing. 

Posted by Dan Markel on November 1, 2010 at 12:04 AM in Article Spotlight, Blogging, Current Affairs | Permalink

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Re: "now he believes the gist of his counsel was misguided"

That is quite charitable of you to assume that his opinion actually changed. Sounds more like a damage-control effort after the leak. He probably still believes he was right, that Kagan should have been the first pick, and that the second pick should have been someone other than Sotomayor.

He hasn't just killed his RAs' chances with Sotomayor; he's killed his own chances of being tapped to argue in the Court after such a now-public dissing of Kennedy, Breyer, etc. Then again, he was never as good there as . . . well, as he thinks he is.

Posted by: skeptical reader | Nov 1, 2010 4:39:43 PM

Amazing. For what it's worth here’s my synopsis of Tribe’s letter:

Sotomayor = bully & not-so-wise Latina
Kennedy = pawn
Breyer = inadequate Kennedy puppetmaster
Tribe = kingmaker
Kagan = awesome
Obama = awesome

I agree that Tribe has killed his chances of ever arguing before the Court again. No rational client would take the risk of hiring Tribe given the horrible judgment he’s exhibited and the problems he’s created between himself and the justices he offended via his intemperate letter.

Not that there’s much risk anyone would have wanted to hire Tribe anyway (maybe that’s why he pushed so hard for a government job?). No one has trusted him with a landmark case since he messed up the first Bush v. Gore argument in 2000 so bad that Al Gore replaced him with David Boies for the second argument. Just listen to the start of his argument, here:
http://www.oyez.org/cases/2000-2009/2000/2000_00_836

Note that Justice Souter had to help Tribe find something in the brief he put his name on:

"Mr. Tribe: Certainly not, Justice Kennedy, but I read U.S.C. Section 5... that is 3 U.S.C. Section 5 not as a requirement that, for example, one never add resources to checking how a particular ballot was cast.

"If you look at the language, I think it’s really much too casual to say of it that all of the laws must stay fixed in order to have the safe harbor apply.

"As I’ll try to argue in a few minutes, that’s not really a question for this Court, but for the Congress, but the language of Section 5 is that... and I’ll just read what I think are the key words,...

"Justice Souter: an you tell us where you’re reading from?

"Mr. Tribe: Actually, I’m just reading from a copy of the U.S. Code, 3 U.S.C. Section 5, not from any... the page I can identify...

"Justice Scalia: It’s in the appendix to the petitioner’s brief, I’m sure, isn’t it?

"Mr. Tribe: Yes, although I’m afraid I don’t have it in front of me.

"Justice Souter: Page 3A of the blue brief.

"Mr. Tribe: Thank you, Justice Souter.

"Page 3A of the blue brief, I am reliably informed."

Since Tribe blew Bush v. Gore, the landmark arguments have gone to superstars like Carter Phillips, Seth Waxman, Ted Olson, etc., not Tribe. According to Wikipedia, Tribe has done only 6 Supreme Court cases in the last decade, none of them landmark cases, and he lost 4 of them. He lost 3 in a row, ending in 2005, and since then no one’s hired him. So this letter is simply the nail in the coffin on Tribe's Supreme Court career.

Unfortunately for Tribe, he no longer has much of a scholarly reputation to fall back on:
http://harvardparody.wordpress.com/2010/07/08/im-larry-tribe-the-story-behind-the-parody-3/

http://authorskeptics.blogspot.com

Posted by: Brent Cooper | Nov 1, 2010 9:14:00 PM

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