(updated below)
On May 4, 2009, Harvard Constitutional Law Professor Laurence Tribe wrote a private letter to his former student, President Barack Obama, urging Obama to select fellow Harvard Law Professor (and Dean) Elena Kagan rather than Sonia Sotomayor to replace Supreme Court Justice David Souter, who had just announced his retirement. That letter was obtained and published yesterday by National Review's Ed Whelan. Tribe argued, in essence, that Sotomayor is not particularly bright ("not nearly as smart as she seems to think she is") while Kagan is breathtakingly brilliant. None of that is surprising: many liberals in the legal community revealingly looked down in scorn upon the perceived lack of intellect of the highly accomplished and intelligent Sotomayor (as Jeffrey Rosen's dissemination of the smears of his anonymous, cowardly "liberal" friends proved), while many Harvard Law Professors instinctively serve as boosters for their fellow Harvard academics. That's all par for the course.
What I think is most notable is the last paragraph of Tribe's letter:
For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court. And, 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 long come to play a more direct role in helping you to 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.
By the time Tribe wrote that gushing fanboy paragraph, Obama had already asserted the Bush-replicating state secrets privilege in order to protect torture, rendition and warrantless eavesdropping from judicial review; had, as the NYT put it, "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team"; The NYT's Charlie Savage had warned "of Obama's "continued support for [] major elements of its predecessor’s approach to fighting Al Qaeda," including "continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone"; Obama had demanded that there be no investigations of Bush crimes on the ground that we must Look Forward, Not Backward; and the administration had made clear that it intended to preserve and continue Bush's military commissions system (albeit with some revisions).
Given that liberal opinion leaders like Tribe were falling all over themselves in praise of Obama even as he pursued such policies -- rather than speaking out against them as they did under Bush -- is it really any surprise that Obama continued on this path? A mere three weeks after Tribe sent his reverent/employment-seeking letter, Obama announced that he would imprison some detainees at Guantanamo without any trials or tribunals at all -- a policy Tribe had previously denounced as the epitome of tyranny when Bush did it: "We can't put people in a dungeon forever without processing whether they deserve to be there." If even the leading liberal Constitutional scholar was sending Obama unqualified love letters as he embraced the worst of the Bush/Cheney policies, why would the President possibly have thought there was any reason to stop? He obviously didn't, and hasn't.
Not all was lost, though. In February of this year, Tribe finally got a job with the Obama administration which he had been so eagerly seeking. It wasn't the one he told the President he wanted -- a position overseeing the "rule of law" (no need for that) -- but rather a newly created position as DOJ adviser "focused on increasing legal access for the poor." There's no question that's an urgently needed function, but a mere two months later, in April, The New York Times reported that Tribe -- like all of the handful of liberals appointed to the administration -- had been relegated to a position of powerlessness and irrelevance:
For Mr. Tribe, volunteering to answer routine legal questions was a show of grass-roots support that grew out of his new role at the Justice Department, where the 68-year-old liberal legal icon -- who is also President Obama’s mentor and former teacher -- is now the "senior counselor for access to justice."
In that position, created especially for him, Mr. Tribe has been asked to suggest ways to improve legal services for the poor, find alternatives to court-intensive litigation and strengthen the fairness and independence of domestic courts. But Mr. Tribe has a small staff, a limited budget, little concrete authority and a portfolio far less sweeping than the one he told friends he had hoped to take on in Washington.
He is also largely invisible. The Justice Department is not allowing him to give interviews, apparently in part because of nervousness in the administration that his unabashedly liberal views might draw criticism or that Mr. Tribe, described by friends as having a big intellect and a healthy ego, might stray from his assigned lane.
One friend and fellow Harvard law professor, Charles J. Ogletree, said he was thrilled that someone of Mr. Tribe’s prominence was working on indigent defense issues. Still, he said Mr. Tribe had not been given responsibilities commensurate with his abilities and expressed hope that that would change.
I hope Tribe's expression of undeserved adulation, and his refusal to object to Obama's seriously misguided actions, was worth the "benefit" he received.
* * * * *
The former conservative/libertarian GOP Congressman from Georgia, Bob Barr, endorsed Democratic Sen. Russ Feingold today, illustrating that Barr actually appreciates and understands, rather than politically exploits, the notion of "limited government" (Barr: Feingold "is a man who understands the Constitution, who supports and fights sometimes against his own party to defend the Constitution"). Nothing is more absurd than watching Tea Party supporters march under the banner of the Constitution and limited government as they support candidates who will expand unrestrained and unchecked federal powers of surveillance, detention, and Endless War, while Democrats (like Tribe) who marched under a civil liberties banner during the Bush years now cheer for the Democratic politicians who have adopted those very policies. Kudos to Barr for being one of the few national figures to apply his principles consistently and without regard to blinding partisan tribalism.
UPDATE: In comments, David Mizner writes:
It's also worth mentioning that Tribe playing an important role in helping Obama get elected. He cut an ad for Obama and campaigned for him, calling him "the best student I ever had" and saying he would defend civil liberties. Had Tribe spoken out early in Obama's administration, he would've gotten a lot of attention, because he's both the foremost liberal constitutional scholar and a long-time supporter. But then to speak out would've been to admit that he'd been wrong about Obama. It also would've denied him the chance to work in the administration. Self first, civil liberties second.
Anyone who ran around hailing Barack Obama as a would-be champion of civil liberties and who has not by now retracted or at least severely qualified that claim is lacking in the Department of Intellectual Integrity, to put that about as mildly as I can consistent with accuracy.
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