Bench Memos

Who My Source Was on Tribe Letter, and Why Tribe Wrote the Letter

I’ve received lots of inquiries since yesterday, and I’ve also seen lots of wondering in the blogosphere, about (1) who my source was for my former Con Law professor Larry Tribe’s May 2009 letter to President Obama, and (2) why Tribe saw fit to put his thoughts on paper. 

On the first, I’m grateful to my longtime buddy Rahm Emanuel  um, there’s nothing I will say—except that it wasn’t Tribe.

On the second, I can only speculate. Let’s assume, perhaps mistakenly, that President Obama would have been happy to talk with Tribe by telephone, or meet with him in person, on the matter of filling the Souter vacancy. There’s ample reason to suspect that Tribe would have seen such opportunities as woefully inferior vehicles for his lavish praise.


1. Could even Tribe actually say out loud to Obama anything like, “I can hardly contain my enthusiasm at your first hundred days”? And even if he could, how much better to have the sentiment memorialized in perpetuity (and his reminder of his job request in writing), rather than risk being quickly forgotten.

2. I’d bet that there’s not a chance in a million that Tribe didn’t contemporaneously send a copy of his letter to Kagan—to whom he was surely deeply grateful for her controversial kid-gloves treatment of plagiarism charges against him. Consider, by contrast, how weak a substitute it would have been for him merely to tell Kagan what he had orally told Obama.

Update:  Blogger Ira Stoll comments:

So now Justice Sotomayor knows that Justice Kagan knew that Justice Kagan’s Harvard Law colleague was trashing Justice Sotomayor to his friend the president behind Justice Sotomayor’s back. Not exactly great for relations between the two newest justices.

3. The letter form also would have enabled Obama, if he wanted others to be aware of Tribe’s views, to convey those views fully and efficiently.

By the way, I see that Tribe seems to be claiming that the full context of the views he expressed in his letter would have to include his “personal conferences with the president.” That’s curious, as his letter surely reads as though it’s meant to stand on its own. In any event, I wonder what a review of the White House logs would reveal about the occurrence of any such “personal conferences with the president.”

Update:  A reader nicely borrows Tribe’s own phrase about Sotomayor to answer the question why Tribe put his thoughts in a letter: “Perhaps he’s not nearly as smart as he seems to think he is.”


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