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. Continue reading

Morning Ethics Warm-Up, 3/21/19: Planes, Tribe and McCain

Good morning!

I’m pretty groggy after one intense early morning seminar, five delayed flights,  the long trip home from San Diego, and a midnight arrival back in Virginia, but my ethics alarms seem to be functioning…

1. Today’s air travel ethics saga: I travel as light as possible for trips of two nights or fewer, carrying only my stuffed soft briefcase and a garment bag the is almost empty. I will not become part of the selfish flying hoards who lug ridiculous roller-boards onto the plane, slowing the loading process and hogging the limited storage space. (The airlines should charge passengers for bringing the luggage on board, not for checking it. Morons.) The barely filled garment bag (I wear my suit on the plane) always fits somewhere,  and even when they announce that all bags must be checked at the gate because there is no more space in the bins, I have always been allowed to bring my bag on board…until last night. Two rude and officious American gate monitors ordered me to surrender my bag or, they threatened, be forced to take a later flight. (“Hmmm..what does “later flight” mean to American since this flight is late taking off and the other four flights I’ve been booked on this trip were also late?” I queried. They just didn’t listen to what I was saying, and kept reciting the policy that I had to store one bag overhead and another under my seat.

I have always believed that you can’t take bureaucratic bullying passively, so I asked if there was a supervisor I could talk to. There was: a harried middle-aged guy with a bad toupe. He did listen, as I explained that I knew my own travel supplies, and that unless every compartment was filled with cement, I could easily find a place for my bag, because in nearly a hundred flights, I always have. Furthermore, I pointed out that it was unfair to treat me , one of the few passengers who carries minimal baggage as a matter of consideration and ethics, this way when other passengers were abusing the privilege of carry-on luggage. The guy said that he agreed with me, but since he hadn’t seen my confiscated bag, he couldn’t assess whether I was right or his subordinate Gate Nazis were. Having made my stand, I thanked him, and made my way down the jetway. Continue reading

Saturday Night Ethics Update, 3/10/2018: 16-Year-Olds And The NRA

Good evening.

(The combination of an early morning seminar, a $^%%#! D.C. marathon that closed down access to the venue, and a lost power cord rendering my netbook useless conspired to prevent both late posts yesterday and early ones today: I’m sorry. I’m back at my desk, chagrined but unbowed…)

1 Why not 10? Why not 2? Poor, declining, Twitter-addict Lawrence Tribe’s ridiculous claim that the voting age should be lowered to 16 was so self-evidently silly that I assumed no one serious would adopt it.  But, as H. L. Mencken kind of said,  “No one ever went broke underestimating the intelligence of the American public,”  and as I’ll say now, nobody can underestimate the level of irresponsible proposals that anti-gun zealots will float in their desperation to gut the Second Amendment.

Last week, Temple University’s Laurence Steinberg, a professor of psychology, issued a Times op-ed arguing for Tribe’s new voters, ignoring his own profession’s conclusions that children that young, in addition to not being, you know, adults, also have not mastered stable reasoning ability because their brains are not fully formed. Never mind, says the prof:

“The last time the United States lowered the federal voting age was in 1971, when it went from 21 to 18. In that instance, the main motivating force was outrage over the fact that 18-year-olds could be sent to fight in Vietnam but could not vote. The proposal to lower the voting age to 16 is motivated by today’s outrage that those most vulnerable to school shootings have no say in how such atrocities are best prevented. Let’s give those young people more than just their voices to make a change.”

Wow, what a well-reasoned argument! I can”t wait for the proposal to lower the voting age to minus-eight months out of outrage that those most vulnerable to abortions have no say in how such atrocities are best prevented. Yes, it’s true: the anti-gun Left is willing to follow President Trump with President Kendall Jenner, as long as we let the government and police have all the guns.

Maybe Temple psychologists and lapsed Harvard Law professors should lose the vote, since they apparently can’t reason above the level of 16-year-olds. Continue reading

Of COURSE! “Think Of The Children!” Takes The Next Irresponsible Step!

Why do I I keep over-estimating the integrity of progressives?  I think this is because so many of my friends, classmates, colleagues and family members would call themselves liberals, and I cannot believe they would ever allow their ideological passions to bring them to such a devolved state. I believe, indeed I know, that they are smarter than that.

But the gun debate is like Twitter: it magically lowers IQs. I have read dozens and dozens of screeds, essay, calls to arms, and, of course, debate transcripts, and anti-gun zealots have yet to come up with an honest argument, much less a persuasive one. Employing various levels of civility, they typically  begin by vilifying their opponents, proceed to making sweeping generalizations, usually with the help of misleading or fraudulent statistics. Then come the rationalizations and the emotion-based fallacies: If it saves just one life…”;”Guns mean more to Republicans than the safety of out children…; “If other countries can do it…”; “This has to stop!…” ; “Nobody needs a gun…”...and on, and on.

These are childish arguments, now framed by Rationalization # 57. The Universal Trump, or “Think of the children!”

 #57 is designed to end arguments before they start, using a conversation-stopper, dripping with sentiment, that only heartless curs and brutes can ignore. Bias makes us stupid, and since almost everyone is biased toward children, Rationalization #56 has the effect, and the intentional effect, of spraying Stupid Gas far and wide to ensure that reasoned analysis is impossible. It is an assertion that bias not only trumps legitimate objections to a course of action, but that it should….

Yet I did not see it-I DID NOT SEE IT!—that the next illogical step in the anti-gun crusade would be to turn the job of advocating for gun bans and confiscation to actual children. This is brilliant, when you think about it. They can’t make less sense than the adults in the debate, and since they are children, and in the case of Marjory Stoneman Douglas students, survivors, they guarantee that their adversaries will hold their fire. (Well, not me, but most of them.) Some of the most villainous despots in world history have used children this way. It’s cynical and cruel, but since these people believe that the ends justifies the means, let’s trot out the kids!

So there have been youth lie-ins, protests and walk-outs. There is, of course, an on-line petition  at Change.Org, where bad ideas go, and a looming march with this crystal objective:

“The mission and focus of March For Our Lives is to demand that a comprehensive and effective bill be immediately brought before Congress to address these gun issues. No special interest group, no political agenda is more critical than timely passage of legislation to effectively address the gun violence issues that are rampant in our country.”

And what would such a magic bill consist of? Hey, we’re just kids! We demand, and the adults are supposed to deliver! Isn’t that how it works? Continue reading

Morning Ethics Warm-Up, 1/21/2018: Bad, Worse, Worst, And Beyond Comprehension…

Good Morning, Everyone!

1 Whew! This guy was almost on the Supreme Court! Retired Harvard Law School Constitutional law prof Lawrence Tribe. whose recent misadventures on Twitter have become the cause of mirth and dismay in the legal world, tweeted this:

The premise of the 2015 post “A Nation of Assholes” was that a President Donald Trump’s crudeness, incivility and boorishness would permanently degrade the culture through the influence the office of the Presidency traditionally has on the young. Bill Clinton, for example, made blow-jobs cool to high school students.  This, Ethics Alarms held, was alone good reason to defeat him. However, I did not see his influence affecting the likes of Larry Tribe, as well as Trump’s adult adversaries in academia, the news media, and the Democratic Party, all of whom have allowed their own discourse to head into Tarentinoville because of Trump Derangement. This, in turn—you morons!-–minimizes and normalizes Trump’s vulgarity.

The President has not, unlike Tom Perez, Senator Kamala Harris and others, used any vulgar words in his public utterances or tweets. The infamous “shithouse” line was used, if it was used, in a private meeting, whereupon CNN took it into the living rooms of America an estimated 200 times.

And by the way, Professor, #SchumerShutdown is accurate, and TrumpShitdown isn’t even clever unless one is about 11.

2. And speaking of assholes… Bill Maher had a blinding moment of clarity, and ranted this yesterday on his HBO show (I have to rely on Ann Althouse for this quote, because I would no more watch Bill Maher than I would chew off my foot):

“I’m down with #MeToo. I’m not down with #MeCarthyism. Something is way off when Senator Kirsten Gillibrand can go unchallenged saying ‘when we start having to talk about the differences between sexual assault and sexual harassment and unwanted groping, you are having the wrong conversation.’ Can’t we just be having an additional conversation? Can we only have one thought now? I get it that Al Franken had to become roadkill on The Zero Tolerance Highway — a highway, it seems, only Democrats have to drive on — but do liberals really want to become The Distinction Deniers, the people who can’t tell or don’t want to see a difference between an assault in a van and a backrub by the watercooler? Masturbation is normal and healthy. But not in the park. Giving up on the idea that even bad things have degrees? That is as dumb as embracing the idea of ‘alternative facts.’ I get it when Trump’s side doesn’t want to talk. He only knows 88 words. But we are supposed to be The Conversation People. Justice requires weighing things. That’s why Lady Justice is holding a scale, not a sawed-off shotgun. Senator Gillibrand went on to say, ‘You need to draw a line in the sand and say none of it is okay.’ Yes. Agreed. But we can’t walk and chew gum anymore? We can’t agree that groping and rape are both unacceptable and one is worse?…”

Not quite Ethics Hero material, but for a hero of the young Left to make this point can’t be anything but good. Maher isn’t really a progressive, and he’s certainly no feminist (Does Proudly Promiscuous Bill fear the knock on his own door from #MeToo in the middle of the night? I’d bet on it…); he’s a self-serving libertarian who hates Republicans. Nevertheless, he knows, as my father would say, which side of the bread his butter is on, so for him to challenge the witch hunters is, for him, principled and courageous. Quick observations:

  • Did Senator Gillibrand really say that?
  • Why did Senator Franken have to become roadkill, Bill? Because those wild-eyed progressives you pander to are ruthless and obsessed, that’s why.
  • Bill’s periodic virtue-signals during his rant are obvious and undermine the force of his message. “A highway, it seems, only Democrats have to drive on”—what does that mean, exactly? That Republicans should have to drive on the same highway Bill is condemning? No, that makes no sense. That Democrats are being absurd, and Republicans are being reasonable? No, Bill doesn’t want to say that. What then? Oh, Bill has no idea, he just knows that if it sounds like Republican-bashing, that’s good enough for his typical, half-stoned fans.
  • I am about to add the “alternative facts” jibe to my list of misleading comments that I am pledged to correct every time I hear it. This was a live TV gaffe, not by the President but by Kellyanne Conway. Repeating it ad nauseum as if it was an official statement of policy is a lazy cheap shot at this point.
  • In Althouse’s comments, someone claims that Maher’s reference to “88 words” was a coded reference to Trump being a Nazi (H is the 8th letter, so “Heil Hitler” is “88”) Is Maher really that slimy?

3. Why would it be wrong to use the death penalty on the Turpins? My position on capital punishment is that it is an essential tool for society to establish what it regards as the worst possible violations of societal and cultural standards, the crimes that civilization must reject in the strongest possible terms if it is to survive.  Treason, terrorism, mass and serial murder, and kidnapping children for ransom are reasonable crimes to ethically justify death by execution. What David Allen Turpin and Louise Anna Turpin reportedly did to their 13 children is arguably as bad or worse than any of these. We just don’t have a name for the crime. It would have to be some combination of torture, imprisonment, child abuse, depravity, and sadism–and even that doesn’t describe it.

I believe the nation, our jurisprudence and civilization would benefit if what the Turpins did henceforth was punishable by death, even if, as I hope, the opportunity to use the law never occurs.  Unfortunately, there is no law on the books now to permit killing them.

Too bad. Continue reading

Morning Ethics Warm-Up: 1/12/2018: Sigh. It Never Ends. (Part I)

Good Morning.

Blecchh.

I can’t begin to describe how much I would rather discuss something else. But I don’t control the universe, why, I don’t know.

1 Is this Plan K? Oh, probably. Sigh.

With the rapid demise of Plan E, this time around, anyway—that’s the “let’s remove President Trump because he’s mentally disabled” plot, which was quickly reactivated once Plan J (“Let’s force the President to resign like Al Franken because of unverified sexual misconduct accusers that voters knew about when they elected him”), the over-heated reporting of alleged vulgar and arguably racist comments the President may have made in a non-public meeting would suggest that “the resistance” and the mainstream media (but I repeat myself) will be fulminating and demanding dire consequences for the foreseeable future.Plan K will be “Vulgarity and undiplomatic statements about immigrants pretty much exactly like how Trump began his Presiential campaign is grounds for impeachment” or something similar. Please send me the link to the first appearance of this argument, will you?

This obviously will never end, and I despair. Democrats will never accept their obligations as citizens and regard the elected leader of the Unites States as legitimate and entitled to do his job until he is either defeated or prevails in the next election. They would prefer to dangerously divide the nation and undermine its institutions, perhaps doing permanent damage.

Yesterday, Times op-ed writer Nicholas Kristoff wrote another Trump/hate/fear-mongering piece indistinguishable from dozens—hundreds?— that have been written and published since January of last year. “Trump’s Threat To Democracy,” it was called—ironic, since the only current threat to democracy is not the President, but Kristof and his fellow travelers seeking to overthrow an elected government “by any means possible,” via Plans A-J and whatever’s next. His screed is an appeal to the authority of two Harvard profs, because as we have seen in the sad cases of Larry Lessig and Lawrence Tribe, you can find previously distinguished Harvard professors who will say almost anything to polish their progressive creds in the age of Trump Derangement.

Steven Levitsky and Daniel Ziblatt have a book coming out–no, I won’t plug it—that argues that Trump displays what they call “the four four warning signs” that a political leader is a dangerous authoritarian:

1.The leader shows only a weak commitment to democratic rules.

2. He or she denies the legitimacy of opponents.

3. He or she tolerates violence.

4. He or she shows some willingness to curb civil liberties or the media.

“A politician who meets even one of these criteria is cause for concern,” they say. Of course, as the professors show  in their examples and  Kristoff proves in his column,  what constitutes evidence of those “warning signs” is a subjective judgment that can be manipulated and built on biased political calculations. He writes, Continue reading

“Hello. Yes, Once Again, I Want You To Meet Larry. You Remember That He Was A Respected Harvard Law Professor, But The Scourge Of Anti-Trump Mania Has Left Him Silly And Obsessed. Won’t You Help Sufferers Like Larry With A Generous Donation?”

 

The steady deterioration of former Harvard Law professor Lawrence Tribe is truly a cautionary tale. Bias makes you stupid, but Larry had IQ points to spare, once.  Trump Derangement makes you stupid, and this strain of political hostility is far, far worse than the Clinton, Bush and Obama strains. Once Tribe was infected, his intellect was in peril.

Then he became addicted to Twitter. I tell my legal ethics seminar attendees that Twitter lowers a lawyer’s IQ by anywhere from 40-60 points. Once, Larry could have sustained that and still given me a good game of Scrabble. On top of his ossifying liberal bias and the ravages of Trump Derangement, however, Twitter delivered the coup de gras to his gray matter.

We saw the beginning of this in 2016, when he shattered a basic legal ethics tenet–Larry used to teach this stuff–with a mind-blowing tweet. After Trump’s election, Tribe began making silly claims that the President was impeachable,  and took to Twitter to spread batty “resistance” conspiracy theories, while calling a White House aide  “non human.”

Now it seems beyond dispute, sadly, that Lawrence Tribe is in the end throes of Anti Trump Brain Virus infection. Continue reading