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Bench Memos

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Tribe to Obama: Justice Kennedy Is a Prima Donna in Danger of Drifting Rightward



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Larry Tribe’s central argument in his May 2009 letter to President Obama (which I first discuss here) is that Elena Kagan would have an extraordinary capacity to influence Justice Kennedy:

Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind. 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.

Among other things, Tribe argues that the techniques that Kagan demonstrated as Harvard law school dean

for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the same techniques I can readily envision her employing not just with justices like Kennedy but even with a justice like Alito or, on admittedly rare occasions, with a justice like Scalia or Roberts.

It’s of course not news that the Obama administration expects that Kagan—who herself has described Kennedy as the “least predictable” justice and as the “swing vote” (a label he says he abhors)—will have extraordinary influence on Kennedy. But that expectation seems like quite an insult to Kennedy.



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