Posted Oct 29, 2010 11:56 am CDT
Harvard law professor and constitutional scholar Laurence Tribe offered a spirited endorsement of Elena Kagan in a 2009 memo that noted the law school dean had the ability to persuade “a bunch of prima donnas to see things her way.”
The memo (PDF), leaked to conservative blogger Ed Whelan, bluntly advised against the appointment of Sonia Sotomayor to fill the seat of retiring Justice David H. Souter, a recommendation ignored by President Obama. The New York Times Caucus blog, the Wall Street Journal and the Washington Post all have stories.
Tribe wrote that Kagan would be better able to persuade swing voter Justice Anthony M. Kennedy to adopt liberal positions than Sotomayor, who didn’t have Kagan’s intellectual heft. “Bluntly put, she’s not 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 firepower of the Roberts/Alito/Scalia/Thomas wing of the court,” Tribe wrote in his criticism of Sotomayor.
The Washington Post contacted Tribe as he was in the dentist’s chair after a root canal. The paper reports that he paused as he was “trying to decide which was worse, the call or the surgery.” He later told the Times that his reservations about Sotomayor “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.”
Tribe, who later was appointed “senior counselor for access to justice” in the White House, also had this to say:
• On Justice Stephen G. Breyer: “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.”
• On Breyer and Justice Ruth Bader Ginsburg: “Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.”