Bench Memos

Tribe to Obama: Sotomayor Is “Not Nearly As Smart As She Seems To Think She Is”

I’ve obtained a copy of an interesting letter that Harvard law professor Larry Tribe wrote to his protégé, President Barack Obama, in the immediate aftermath of Justice Souter’s announcement of his decision to retire from the Court. I will post a PDF of the letter shortly. [Update:  Here’s the letter.] In the meantime, I’ll call attention, in this post and two or three others, to some of its highlights.

The express purpose of Tribe’s letter is to urge that Obama nominate Elena Kagan to the Souter vacancy. But before making his affirmative case for Kagan, Tribe argues strongly against the alternative of nominating Sonia Sotomayor:

Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

Tribe then discusses possible candidates for a future Stevens vacancy and pointedly doesn’t mention Sotomayor even for that vacancy.

It’s perhaps a tribute to Tribe’s, er …, deftness that, as soon as Obama nominated Sotomayor, a New York Times article gave the impression that he had supported her selection:

Laurence H. Tribe, a Harvard law professor who served as an adviser in the process that led to Judge Sotomayor’s selection for the Supreme Court, said the White House had found concerns about her temperament unfounded, concluding instead that her background and her concern with the consequences of court rulings would be a “healthy antidote” to more formalist legal theories advocated by the Supreme Court’s conservative wing.

“The president’s inquiries into the way she interacts with others,” Professor Tribe said, “convinced him that she would be a positive force in the chemistry of the Supreme Court.”

Translation of this last sentence: “I couldn’t persuade Obama not to pick her.”

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