A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee.

Yesterday I was reading through an essay by Tribe and Joshua Matz that responded to a review of their jointly authored book To End a Presidency: The Power of Impeachment, published in May 2018. In that review, I ran across their statement (p. 97) that in their book they opened their analysis of the power of impeachment “by considering—and squarely rejecting—arguments that the Senate violated the Appointments Clause of the Constitution when it declined to hold confirmation hearings for Chief Judge Garland.” Wondering if Tribe had really reversed himself or whether I was somehow misreading that statement, I found confirmation in their book (well, in Amazon’s free preview pages of their book):

In the period between Scalia’s death and Trump’s electoral victory, some [sic] argued that the Senate was violating Article II, Section 2 of the Constitution by refusing to consider Garland’s nomination…. But we’re skeptical that the Senate violated the Constitution. While Article II, Section 2 requires Senate consent in order for a judicial nominee to be confirmed [sic*], it doesn’t impose an affirmative duty on the Senate to take specific actions when presented with a nominee—much less to do so within a particular time frame. [P. 76 (my underlining).]

For support, they even cite law professor Michael D. Ramsey’s fine Atlantic article on the matter. So I’m glad that Tribe’s second 180-degree turn has brought him back to the right place, where he was three decades ago.

Perhaps it’s too much to wish that Tribe and Matz had candidly acknowledged that Tribe (along with several hundred law professors) was among the “some” who, in the midst of the battle three years ago, argued the wrong position.

Conclusion? Knowing that few members of the news media or the public read scholarly books on Constitutional Law, Tribe will say one thing to bolster his status with MSNBC and the “resistance,” while actually holding the opposite position outside of a political context. The same undoubtedly applies to many, and probably most, of those 350 law professors who condemned the Merrick Garland gambit (I condemned it too, but not because it was illegal., and the unethical group of ex-federal prosecutors I wrote about yesterday.

Ed Whelan is being nice. I’ll be less nice. Professor Tribe lacks integrity. He abuses his reputation and perceived authority,  and his public positions cannot be trusted. He obviously will calibrate them to advance a partisan agenda, and  and his opinion ought not to be given any weight at all in public policy debates.

*From Wikipedia: “Tribe has stirred controversy due to his promotion of unreliable claims about President Trump’s fitness for office.[8][9] Dartmouth political scientist Brendan Nyhan harshly criticized Tribe, saying that he “has become an important vector of misinformation and conspiracy theories on Twitter.”[8] According to McKay Coppins of The Atlantic, Tribe has been “an especially active booster” of the Palmer Report, “a liberal blog known for peddling conspiracy theories.”

14 thoughts on “A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

  1. Professor Tribe lacks integrity. He abuses his reputation and perceived authority, and his public positions cannot be trusted.

    Tribe is a piker. Let’s talk about John Brennan and Jim Clapper when we’re talking about people who abuse their reputation and perceived authority whose positions cannot be trusted.

    Tribe is an obscure nobody compared to these two unrelentingly vicious creeps.

    • Both of those testified to Congress asserting… lies. How are they still breathing free air?

      Oh, I know: Comey and Hillary have not be prosecuted for crime the rest of us would have long since been jailed over, so what is a little thing like lying to Congress?

  2. I made a comment a day or two ago regarding Napolitano’s claim that Trump obstructed justice.

    I have come to dismiss all lawyers who proffer legal opinions as contributers to the various pubditry shows. Finding a contributor role on most channels where you are reliably pushing a pro Trump legal argument is going to be damn near impossible. Dershowitz staked out that claim on Fox so he can promote his book The Case Against Impeaching Trump. Fox likes Dershowitz for the same reason MSNBC or CNN will pay Napolitano; they are seen as arbiters of truth because they hold favorable political ideologies to the opposing side. See if their guy agrees with us he must be telling the truth.

    What many fail to remember is that these guys are first and foremost independent contractors who sell professional services to those willing to pay. We are not in a law class where the faculty member will be able to argue both sides but does not get paid to take a side.

    Tribe, like Napolitano probably makes more money as an “expert” for all his anti-Trump opinions than he does practicing law.

    The danger of these legal pundits, I would wager, is that far too many lay people think these lawyers are giving us some absolute legal truth. They forget that in court two sides will argue two completely different interpretations of the law.

    It matters not if a defendant is known to be guilty, the lawyer must advance the best arguments for the client. It just so happens that Tribe’s clients want him to argue against Trump just as Fox like Dershowitz arguing in favor of Trump.

  3. Chris,

    Your position is valid. Tribe and Dershowitz are selling opinions. However, Dershowitz has been more consistent and compelling, in my never-to-be humble opinion.


    • JVB
      I agree. Dershowitz has been very consistent in terms of his civil liberties positions. I feel much more comfortable relying on Dershowitz’s opinions than virtually all others.

      I simply believe looking for objective legal information on any of the various slanted punditry shows with pretend to be news shows is a fools errand.

    • Chris, I don’t think a legal pundit should be analogized to a defense lawyer. I think a legal pundit should be incisive, consistent and,ultimately, right on the law more often than not.

      • OB
        I used the attorney client analogy to reflect the current state of cable and broadcast programming that claim to be objective.

        Call me cynical but does anyone think MSNBC will pay someone to give an incisive objective analysis that is at odds with their overall editorial slant? I don’t.

        I don’t blame lawyers that proffer opinions for money on TV but I temper their opinion with the knowldge that the producer of the show would last 2 seconds if they booked someone that might invalidate the show’s host’s positions. Thus, I believe some guest’s opinions are based on what the market will pay for.

        I might feel otherwise if both sides were represented on these shows.

      • OB
        Doesn’t your assessment require the client wants an incisive objective legal perspective? What if they don’t.

        • In other words, what if the client wants their ears tickled, in a fashion that does not end up with legal liability? I suspect the ethical lawyer would commence to tickle, at an appropriate hourly rate.

          Any lawyers who think I am wrong, in theory or in fact, are welcome to educate me.


          My first interaction with a lawyer in a professional capacity was just a week ago, so what do I know about lawyer ethics except what I read here?

          • Let’s just put it this way, boys: If I were hired to go on TV or the radio or give an opinion to a newspaper or magazine reporter, I’d try as hard as possible to give the the RIGHT answer based on the law and the facts. If I tried to do anything else, I’d be ruining my reputation among my peers in the profession. There’s nothing more valuable in that line of work than your professional reputation, i.e., what other lawyers think of your ability and integrity. There’s no more damning thing to be heard of a lawyer from a third lawyer than, he or she “isn’t a good lawyer.” No different than any other trade or profession.

              • Well, TV lawyers are pretty high on the arrogance scale so that’s probably a fair inference. The vast majority of them don’t really practice law any way.

                • And Larry Tribe has tenure so he doesn’t care what people think of what he says on twitter or on TV. I suspect he’s sort of schizophrenic. Probably has a scholar identity and a gadfly identity . Both independent of each other.

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