Bench Memos

NRO’s home for judicial news and analysis.

Larry Tribe on Larry Tribe’s Letter


Charlie Savage of the New York Times has posted the text of an e-mail from Larry Tribe concerning his May 2009 letter to President Obama (the topic of four previous posts of mine today):

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 can say this much: I’ve long held Justices Breyer and Kennedy in the highest regard, both as friends and as jurists, and I regret any contrary implication some may try to draw from my letter, taken out of context. I would also stress that the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the President made his decision and were happily negated by her performance as a Justice thus far.

Two quick comments:

1. Ah, yes, how could anyone possibly strain to read Tribe’s letter as reflecting at all negatively on Justice Breyer or Justice Kennedy! Surely the context of the full letter would dispel any such inferences that might be drawn from passages “out of context.” Yeah, right.

2. So was Tribe ill-informed about Sotomayor and acting recklessly when he wrote to Obama to try to sink her candidacy? Does he now think that she is “as smart as she seems to think she is”? And, if so, is that because he now thinks that she’s smarter than he previously did? Or because he now thinks that her own assessment of her smarts is lower than he previously thought it was? Or is Tribe just scurrying now to salvage his relationship with Sotomayor?

Update—A reader adds:

The substance of Tribe’s comment clears everything up for me.  As of May 4, 2009, when Tribe wrote his secret letter, Sotomayor had only been the leading contender for next Democratic appointment to the Court for five years.  Five years just wasn’t enough for Tribe to learn enough about her to realize how wicked smart she was.  But in the next 22 days, before Sotomayor was nominated, he finally managed to learn enough about her to be impressed with her intellect, not to mention her good manners!


Subscribe to National Review