Bench Memos

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Tribe to Obama: Breyer’s Public Face Is Unappealing


One more post (in addition to my first two) on Larry Tribe’s May 2009 letter to President Obama urging him to nominate Elena Kagan to the Souter vacancy.

Apart from lamenting that Justice Breyer doesn’t have “much of a purchase on Tony Kennedy’s mind,” Larry Tribe also doesn’t think much of the “public face” that Breyer presents: 

Elena Kagan would … combine [a] personal modesty with an appealing public persona and would project a well-grounded image of justice as fairness and of law as codified common sense. In that regard, I think it’s clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been—and certainly than a Justice Sotomayor or a Justice Wood could be—in the kinds of public settings in which it has been all too easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer’s pragmatism seem mushy and unconstrained by comparison.


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