Washinton Post Staff Writer
Thursday, October 28, 2010; 7:14 PM
Harvard Law Professor Laurence H. Tribe minced no words in a May 2009 letter to President Obama, his former student, urging him to nominate Harvard Law Dean Elena Kagan to fill retiring justice David Souter's seat on the Supreme Court.
The goal should be to keep Justice Anthony Kennedy "from drifting" to the right, Tribe wrote, which is something Souter was able to do.
But "neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind," Tribe opined of the justices.
So let's look at the possible candidates, he said in the letter, which was obtained by another former Tribe student, Ed Whelan, head of the Ethics and Public Policy Center, who posted it on his NationalReview.com blog.
How about appellate judge Sonia Sotomayor? "Bluntly put," Tribe said, "she's not nearly 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 conservative wing of the court.
Maybe you could pick Diane Wood, he wrote, who's really smart, but she's 10 years older than the real standout, Kagan, who combines "intellectual brilliance and political skill." Kagan would be "a much more formidable match for Justice Scalia than Justice Breyer has been - and certainly more than a Justice Sotomayor or a Justice Wood could be."
(Obama chose Sotomayor to replace Souter, and the next year he tapped Kagan to replace Justice John Paul Stevens.)
"If I might add a very brief personal note," Tribe began in a pitch for a job, "I can hardly contain my enthusiasm at your first 100 days," though big challenges remain. "I continue to hope that I can before too long come to play a more direct role in helping you meet those challenges, perhaps in a newly created [Justice Department] position dealing with the rule of law."
Tribe got the newly created job of "senior counselor for access to justice," which, the New York Times reported in April, "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." At least it's steady work.
When we reached Tribe on Thursday, he was still in a dentist's chair at the end of having a root canal. After a pause, trying to decide which was worse, the call or the surgery, he said he "couldn't comment on a personal recommendation made to the president that was leaked."
"Certainly I stand by what I said about Justice Kagan," he commented. "And any attempt to make negative inferences about my views of the other justices - whom I know personally and respect greatly - would be mistaken," he said, and "would fail to take into account the surrounding circumstances." Such as?
"Such as personal conferences with the president," he offered.
Negative inferences? "Not nearly as smart as she seems to think she is" and "something of a bully"? Don't have to infer much.Wake-up call
Speaking of legal matters, retired Supreme Court justice Sandra Day O'Connor issued a statement Wednesday about those 1 a.m. robo-calls to 50,000 Nevada voters. In the calls, O'Connor urged folks to support a ballot initiative whereby state judges would be appointed by the governor - from a list compiled by a judicial selection commission-rather than elected.
"I did not authorize the use of my recorded statement as part of automated telephone calls to Nevada residents, and I regret that the statement was used in this way," she said. "In addition, I view my efforts in support of judicial reform as consistent with the Code of Conduct for U.S. Judges."
No apology for waking everyone up? Well, maybe she figured it was Nevada and everyone would have still been up or not even home yet.
O'Connor's brief and carefully worded statement does not mean that her "recorded statement" isn't on a video on the Web site of the pro-initiative group Nevadans for Qualified Judges. She's the group's honorary chairman.
Conservative critics have called for her to stop hearing lower court cases - which she can do as a retired justice - accusing her of "flagrant political activity." Other legal ethics folks say O'Connor, who has sharply criticized the big bucks being spent in state judicial elections, is doing something closer to testifying on a matter of judicial import.
In any event, she has already ruled in her favor.Keep reading
Gen. Hugh Shelton's new memoir, "Without Hesitation," is a take-no-prisoners look at his time running the Joint Chiefs of Staff from 1997 to 2001.
It probably won't be a runaway bestseller. The first part, which deals with his personal odyssey from a small town in rural North Carolina to running the nation's military, is a bit slow, our former colleague Tom Ricks, now at the Center for a New American Security, says in his blog. And maybe time has diminished the public appetite for reliving those days with yet another memoir involving that period.
But things pick up considerably when Shelton writes of a senior Clinton Cabinet member proposing a pilot patrolling an Iraq "no fly" be shot down so Washington would have an excuse to go to war.
Then there's the State Department's opposition to pre-9/11 proposals to go after Osama bin Laden and the Taliban by invading Afghanistan. Many of the folks in charge in both the Clinton and Bush administrations take some hits in the book, such as Gens. Wes Clark and Tommy Franks and Sen. John McCain (R-Ariz.), who's accused of "wild mood swings" and "erratic temper tantrums in the middle of a normal conversation."
The heavy artillery, however, is saved for former defense secretary Donald Rumsfeld, and the Bush administration's decision to go to war in Iraq, which Shelton says amounted to "intentionally deceiving the American people" with "a series of lies."
Shelton, agreeing with Secretary of State Colin Powell's initial assessments - before Powell's extraordinary speech at the United Nations - writes that Iraq had been contained and was not a threat to this country. And there was "absolutely no link between" Saddam Hussein and 9/11.
It's ground that has been much plowed. Still, as Ricks notes, "these are pretty serious charges, given that they come from the man who was the nation's top military officer for four years immediately preceding 9/11."
Staff writer Robert Barnes contributed to this report.