In May 2009, after Supreme Court Justice David Souter announced his retirement, Laurence H. Tribe, the prominent Harvard Law professor, wrote a two-page letter to President Obama that bluntly laid out his views about several justices and potential nominees.
The letter was leaked to Ed Whelan, a former Bush administration lawyer who is the president of the conservative Ethics and Public Policy Center. and he posted it on the center’s Web site on Thursday.
The letter is attracting considerable interest from court-watchers and legal scholars because Professor Tribe, a longtime mentor to Mr. Obama, is arguably the most famous constitutional scholar and Supreme Court practitioner in the country, and because he criticizes several justices and other prominent judges.
In the letter, Professor Tribe makes the case that Mr. Obama should appoint Elena Kagan – who had just been appointed solicitor general – to fill the vacancy created by Justice Souter’s departure. He argued that Ms. Kagan would be better than Sonia Sotomayor at persuading the court’s swing voter, Justice Anthony Kennedy, to side with its liberal bloc; Justice Sotomayor was an appeals court judge at the time. (He cited Ms. Kagan’s intellect and her ability, demonstrated as dean of Harvard Law School, to bring “prima donnas” into agreement.)
As it would turn out, Justice Sotomayor ended up in the Souter seat. But the following year, after Justice John Paul Stevens retired, Justice Kagan joined the Supreme Court.
Here are some excerpts of Professor Tribe’s analysis of current and former jurists:
· Appeals Court Judge Sonia Sotomayor: “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 fire power of the Roberts/Alito/Scalia/Thomas wing of the Court …” (See full story and his comments on other judges here at NYT)
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