Legal Scholar's Anti-Sotomayor Letter Leaks, Causing Awkward Fallout

Laurence Tribe wanted Kagan to be nominated for the Souter seat--awkwardness ensues

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Laurence Tribe is a renowned constitutional lawyer and scholar at Harvard Law School. Sonia Sotomayor is the Supreme Court Justice Obama successfully nominated to fill Justice David Souter's seat in 2009. It turns out Tribe was against her nomination--in fact, he wrote a letter to the president at the time calling Sotomayor "not as smart as she seems to think she is," instead suggesting Elena Kagan. The letter, rather awkwardly, was just published. It's unclear whether the fact that Sotomayor and Kagan are now both on the bench makes this more or less embarrassing for the parties involved. Here are the key moments of the letter and some of the post-publication reaction.

The Letter

  • Kennedy's a Problem, Sotomayor's Not So Bright  In his analysis of the court's situation, Tribe wrote a number of sentences that, however insightful, clearly weren't meant for the public. For example, discussing the importance of a nominee that would be able to manage Justice Kennedy: "Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind." Souter, apparently, did have such a purchase, and Tribe thought Obama would need someone like Souter "to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty." How is this for a backhanded compliment? "I don't regard Kennedy as a lost cause for the decade or so that he is likely to remain on the court." Then there's the full assessment of Sotomayor:
If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don't need me to underscore, I am concerned that the impact within the Court would be negative in these respects. 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 ...
  • Kagan! Kagan! Kagan!  On the other hand, there's a pretty solid endorsement of Kagan (also included in the letter are some nice compliments to Diane Wood, another considered nominee):
I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike, if you'll forgive my reference to bowling. ... Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of  prima donnas to see things her way in case after case--techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time--are precisely the same techniques I can readily envision her employing not just with justices like Kennedy but even with a justice like Alito or, on admittedly rare occasions, with a justice like Scalia or Roberts.
  • Also: You're Doing Great and I'd Like to Help  It's the end of the letter that makes Salon blogger Glenn Greenwald's skin crawl. Here's the exerpt, which Greenwald, at least, interprets none too favorably:
If I might add a very brief personal note, I can hardly contain my enthusiasm at your first hundred days. I don't underestimate the magnitude of the challenges that remain, and I continue to hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment at the moment is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.


  • Tribe: This Was Confidential  The New York Times' Charlie Savage obtains a response from Professor Tribe, who declines to comment on a letter he saw as confidential, but does say he holds "Justices Breyer and Kennedy in the highest regard, both as friends and as jurists," and "regret[s] any contrary implication some may try to draw from [the] letter, taken out of context."
  • Also, a Gracious Revision Regarding Sotomayor  Another part of Tribe's response: "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."
  • Why This Letter Is Making Waves  "Professor Tribe, a longtime mentor to Mr. Obama, is arguably the most famous constitutional scholar and Supreme Court practitioner in the country," explains the Times' Charlie Savage, and "he criticizes several justices and other prominent judges" in the letter.
  • Sotomayor Shouldn't Be Embarrassed  "I'm quite sure it is the professor, Laurence H. Tribe, rather than Justice Sotomayor, who is mortified by the revelation that he had dissed the soon-to-be-nominee, a graduate of Princeton and Yale Law School, as 'not as smart as she seems to think she is,'" writes veteran Supreme Court reporter Linda Greenhouse at The New York Times. Also, says Greenhouse, "she got the job."
  • Is Obama Really a Paragon of Constitutional Faithfulness?  Glenn Greenwald takes the letter back to his frequent subject: abuses in the name of national security. "By the time Tribe wrote that gushing fanboy paragraph," he notes, referring to the letter's last paragraph (above), "Obama had already asserted the Bush-replicating state secrets privilege in order to protecttorture, rendition and warrantless eavesdropping from judicial review." Greenwald is not pleased by what he sees as a naked attempt to curry favor and procure a job.
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