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12/04/00
9:40 a.m. |
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Tribe is perhaps best known for his treatise American Constitutional Law, which as CNN reported repeatedly throughout the oral arguments, is the most cited constitutional treatise of the 20th century. This is quite an accomplishment, which is nonetheless somewhat diminished when you realize that the pool of competitors for citation is small. There are good reasons that few have written such a book: The scope of such an endeavor is broad, and the risk of bias in relating some of the most controversial cases in our history is enormous. Even in previous years, before the boom in Supreme Court cases and newly discovered rights, those who attempted to write similar works were giants: men like Joseph Story and Thomas Cooley. It therefore takes some measure of hubris to produce such a work, but that is one quality not found lacking in Mr. Tribe. While his treatise does prove to be a useful reference work, most serious scholars will tell you to take its conclusions with a grain of salt, for these conclusions are infused with Tribe's own particular and often partisan views about the law. For a more vivid view of Tribes ideology, however, one needs look no further than a sample of the cases in which he has been involved. Tribe has been a significant advocate of expanding the right to privacy. As such, he served as attorney for those who sought unsuccessfully to persuade the Supreme Court to create a constitutional right to assisted suicide. In the same constitutional vein, he has been particularly adamant in his advocacy of the right to abortion, arguing unsuccessfully that if the government pays for medical services for the poor, it must allow the doctors at clinics receiving these funds to provide abortion counseling. Tribe's rhetoric in these cases can be a bit overheated, as in an abortion case in which he represented a group of Democratic members of Congress. In this case, Tribe drew on Abraham Lincoln's 1858 speech, in which Lincoln stated that the republic could not long endure "half slave and half free," as support for the need for the judicially created right to abortion rather than leaving the question to the states. Given this analogy, there is little doubt which position Mr. Tribe finds analogous to pro-slavery. Tribe has long been an advocate of gay rights. In Bowers v. Hardwick, he argued unsuccessfully in an effort to strike down state anti-sodomy laws. He subsequently had greater success in the case of Romer v. Evans, in which the Supreme Court struck down as unconstitutional a law that prohibited the granting of special protected status on the basis of sexual orientation. The decision of the majority of the court in many ways mirrored Tribe's friend-of-the-court brief, right down to the fact that neither the decision nor the brief even mentioned the Bowers case. Tribe has also handled a number of First Amendment cases. In one such case, he represented the dial-a-porn industry, arguing unsuccessfully for a different scope of community standards to allow for speech that would otherwise be obscene. While he supports free speech where it is indecent or arguably obscene, he has a much more narrow view of the related right to free association, arguing for instance that private groups must admit voting members of the opposite sex even if they are a single sex group. His views on property rights similarly tilted. He represented Berkeley in defense of their rent control law, and argued on behalf of the Hawaii Housing Authority's expansive taking of private property for public use that was simply the redistribution of private property from one individual's hand into another by government regulation. Finally, he represented Laurence Walsh in his brief in support of the constitutionality of the Independent Counsel Statute — a brief that put him at odds with Ted Olson, who was the plaintiff challenging the constitutionality of the act. Tribe succeeded, but his conviction seems to have been moored more fully in partisanship than in the Constitution, for he repudiated this position after the Clinton impeachment. Tribe's creative solutions to the current election crisis raise similar partisanship questions. In a New York Times article from November 12, 2000, Tribe recommended that to solve the voting confusion in Palm Beach County (confusion from a butterfly ballot the Florida Supreme Court subsequently ruled to be legal), a "corrective election" should be held. To control for possible changes in votes, Tribe suggested that the voters sign affidavits that they would not change their intended vote (a useless and unenforceable step), and that the election officials freeze the vote totals for Bush and Nader, so that only Gore and Buchanan's totals could change. I suppose this is a perfectly reasonable solution, if you are seeking a way to skew a recount so that only Gore may pick up votes, and new votes at that. Even so, this creativity seems to be bounded far more in partisan opinion than by law. Professors at leading universities garner a certain respect for their positions based upon the presumption of scholarship. Some take the high road and offer dispassionate scholarship, while others fall prey to the siren song of popularity, and use the prestige of their office to place the imprimatur of scholarship on what is little more than their own political or legal opinion dressed in the regalia of impressive sounding legal prose. Tribe was once seen as a great scholar, but the more he participates in one-sided political endeavors, the less he looks like a scholar, and the more he looks like a partisan. |
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hen it came time for
Gore to find a lawyer to argue his case, the choice was obvious: Harvard
Professor Laurence Tribe. An experienced appellate lawyer, Tribe was once
considered to be on the Democratic short-list for the Supreme Court, but
his consistently liberal positions have virtually foreclosed any hope
of judicial appointment now. His performance to date in the election dispute
suggests that he is following this liberal tradition.
