…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. Dartmouth political scientist Brendan Nyhan harshly criticized Tribe, saying that he “has become an important vector of misinformation and conspiracy theories on Twitter.” 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.”