Bench Memos

Law & the Courts

Larry Tribe’s ‘Low Point’?

New York magazine has a long and interesting article by Andrew Rice that explores whether iconic liberal law professor Larry Tribe—my constitutional-law professor three decades ago at Harvard—has sold out his principles in leading the coal industry’s attack on the Obama administration’s climate-change regulations. But what caught my eye was this passage concerning Tribe’s service in “a nebulous Justice Department job, ‘senior counselor for access to justice,’” early in President Obama’s first term:

Tribe was dealing with health problems, complications from an earlier surgery to treat a benign brain tumor, as well as the emotion and expense of what he described in the Washington Post as “a very contentious divorce” from his wife of four decades. (He told the Post that Kagan was one of his few confidantes.) But the low point came in the form of a leak. A blog obtained that 2009 letter to the president in which Tribe had mainly addressed the subject of future Supreme Court appointments, offering praise for Kagan and an uncharacteristically harsh assessment of another leading candidate, Sonia Sotomayor. “Bluntly put, she’s not nearly as smart as she seems to think she is,” he wrote, “and her reputation for being something of a bully could well make her liberal impulses backfire.”

As faithful readers will recall, it was I who made that letter public here on Bench Memos. If Rice’s account is correct, I’m both sorry and amazed that Tribe regarded the leak as a “low[er] point” than his “‘very contentious divorce’ from his wife of four decades.” That would seem to speak volumes about his inordinate desire to ingratiate himself with the justices. (We’re told that he “knows all of them personally, apart from Samuel Alito”—which I think means that he’s at least met them.)

Tribe is busy rebuilding a relationship with Sotomayor: he says that he “could hardly have been more wrong” about her, and the article reports that his forthcoming new book is “conspicuously complimentary of her.”

In the article, Tom Goldstein states his belief that “someone in the administration leaked [Tribe’s letter] to injure Larry.” I’ve already said all that I’m going to say on who my source was. But I can’t say that it strikes me as reasonable to assume that someone in the Obama administration would choose me to leak to. (Given my joke five years ago that Rahm Emanuel might have been my source, I do find it amusing that Tribe recalls that Emanuel complained on another occasion that Tribe “went to the Big Guy behind my back.”)

While I’m at it, I’ll highlight a couple other passages from the article that struck me.

In noting Tribe’s extraordinary influence over Justice Kennedy, Rice offers this nice line: “Today, Tribe calls Kennedy one of the Court’s great justices—an assessment not entirely free of self-identification.”

Rice also quotes Tribe’s defense of his representation of Peabody Energy: “I’m just not for sale.” Well, how about a short-term lease at a very high premium? 

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