POLITICS SEPTEMBER 30, 1991
When Joe Biden, the chairman of the Senate Judiciary Committee, began interrogating Clarence Thomas last week, he arrived with ammunition provided by the leading liberal lights of legal scholarship: Walter Dellinger of Duke, Paul Gewirtz of Yale, Cass Sunstein of Chicago, and First Amendment lawyer Floyd Abrams, among others. But according to those involved, the ?minence grise at the Judiciary Committee was Laurence H. Tribe, Tyler Professor of Constitutional Law at Harvard. Tribe, who has advised Biden, Edward Kennedy, and other senators and their staffs on past nominations, helped prep the senators for an aggressive inquiry into Thomas's views on natural law. In the unlikely event that the Judiciary Democrats decide to oppose the nomination, arguments developed in consultation with Tribe will form the basis of their opposition.
Tribe, who at 49 can no longer be called the wunderkind of the Harvard law faculty, is no stranger to the process of advise and consent. The author of many volumes, including a widely used textbook on constitutional law, Tribe came to wide national prominence in the Robert Bork confirmation hearings in 1987. In private, Tribe served as chief coach to Biden, traveling to the senator's home in Wilmington, Delaware, to stand in for Bork in an all-day mock hearing, videotaped by Biden presidential campaign operatives. According to several accounts, Tribe played Bork better than the nominee himself. In public. Tribe served as the lead witness against the nomination, testifying for nearly three hours. Documenting nearly every instance in which Bork had backtracked from his previously stated positions, Tribe argued that the nominee was not just "outside the mainstream" on issues such as the right to privacy, free speech, and civil rights, but inconsistent as well. The professor devastatingly called Bork's "recasting" of his views "illusory" and a "confirmation conversion."
When Thomas was nominated, Tribe seemed to hanker for a return to the role he played in the Bork affair. Only the basis of his opposition was in doubt. Tribe's first reaction-was that liberals would focus on Thomas's criticism of the Warren Court for "inventing new constitutional rights," as he told CNN on July 1. On further consideration, Tribe decided to argue from the traditionally conservative position of judicial restraint that Thomas was a potential activist who might invent new constitutional rights that would appeal to conservatives, such as a right to life for the unborn. In a July 15 New York Times op-ed piece, Tribe argued that natural law reasoning of the type Thomas employed in his writings was "troubling" because it has been used historically to "justify moralistic intrusions on personal choice." Going on to cite Thomas as the first nominee in fifty years to use natural law as a guide to the Constitution, Tribe ended with the claim that such views threatened "the fate of self-government in the U.S."
Tribe's article was itself something of a confirmation conversion. His own textbook cites Justice John Paul Stevens and retired Justice William Brennan as invoking natural rights to explain the reach of the liberty clause of the Fourteenth Amendment. Worse, this anti-natural law position seems to contradict the core of Tribe's jurisprudence, which is to elaborate rights not explicitly spelled out in the Constitution. Moreover, it makes a mockery of Tribe's own opposition to Bork, which rested in part on Bork's original intent literalism, which Tribe asserted was based on the bad idea that the people did not retain natural rights beyond those specifically mentioned in the Bill of Rights. Michael McConnell, a law professor at Chicago, pointed out in a rejoinder in the Times that Tribe had attacked Bork for not recognizing that the purpose of the Bill of Rights was "to preserve natural rights." McConnell is not the only one to find Tribe's Thomas-induced argument against natural law hypocritical. In the words of Robert F. Nagel, a law professor at the University of Colorado, "Tribe has always teetered on the brink of seeming to be politically opportunistic. This time he crossed it."
A few days after the attack, Tribe was backtracking, arguing in a letter to the Times that he was not against natural rights per se, and maintaining that he was taking no position on the Thomas nomination before the hearings. It is hard to make sense of his rapidly evolving position, except to say that Tribe believes in natural rights when liberals use them, and opposes them when conservatives do. Asked whether he plans to testify against Thomas, Tribe says he hasn't been asked. Pressed, he adopts the lingo of the candidate's demurral, saying that he has "no current plans" to testify.
In the Thomas nomination, Tribe seems torn between his desire to weigh in decisively and his fear of goading conservatives who consider him the leader of the mob that "lynched" Robert Bork. Such opposition has hurt his intellectual reputation and damaged his chances of ever passing a Senate confirmation himself. In 1990 the right-wing law journal Benchmark devoted an entire issue to a pre-emptive strike against a future high court nomination for Tribe. The issue was filled with articles documenting Tribe's inconsistencies, judicial activism, and ambition. One piece parodied the tide of Tribe's book God Save This Honorable Court as "God Save This Honorable Court — And My Place on It." The issue argued that Tribe has long nurtured a close relationship with Democratic politicians. Tribe's 1978 treatise on constitutional law is dedicated to Sargent Shriven In 1984 he held fund-raisers for Gary Hart, and in 1988, after Biden dropped out of the race, he worked for Michael Dukakis. It is assumed by many people that if Kennedy, Biden, Hart, or Dukakis had ever been elected president, Tribe would have been a first choice for the Court.
In retrospect, Tribe minimizes his role in the Bork hearings. Though opposing Bork may have seemed a sound political calculation in the midst of the Iran-contra scandal, when Reaganism was in apparent eclipse and a Democratic presidency just around the corner, it looks very different from the perspective of what appears to be the middle of an eternal Republican reign. Tribe says he was reluctant to testify because he "expected him to be confirmed and knew I would be making a great many enemies including him." He adds that he was persuaded to testify by his teenage daughter, who told him to forget about the future and follow his strong feelings about Bork. He says he does not think his testimony was particularly influential. After Bork was voted down, Tribe sent him a personal note suggesting they kiss and make up.
But the most dramatic way Tribe tried to neutralize his role was by loudly touting the next nominee, Anthony Kennedy. "It seems to be indisputable that Judge Kennedy's very considerable intellectual strengths are coupled with a deep and abiding commitment to basic constitutional values and principles," Tribe said. The subtext of his testimony was that Tribe was not a reflexive opponent of Republican nominees. Since his confirmation, Kennedy has voted as conservatively as any member of the Court. "I think I was overly optimistic," Tribe now says.
Tribe's tendency to position himself politically at the expense of intellectual consistency was demonstrated even more clearly in the 1989 flag-burning controversy, After the Supreme Court threw out an anti-flag-burning law in Texas v. Johnson, President Bush promoted the idea of a constitutional amendment, and Democrats began to scramble. A few, like Bob Kerrey and Daniel Patrick Moynihan, took the brave stand that flag burning was protected by the First Amendment. Biden, however, proposed a new statute to make defacing a flag a crime. Tribe helped him draft the law, advising him to use language that the court could judge "content-neutral," meaning that it proscribes an activity without punishing the ideas that activity might express. Again Tribe appeared before the Judiciary Committee as a witness, saying he believed such a law could pass constitutional muster. This contradicted the view in his constitutional law text that it is impossible under the First Amendment to protect the flag, as a symbol without suppressing the views of flag desecrators. Tribe's original view was vindicated, and his Judiciary testimony discredited, when the Supreme Court threw out the Senate statute.
Some Tribe defenders suggest his contradictions are the result of his training in advocacy. Lawyers don't have to worry about squaring the arguments they make from case to case; they just argue each case as hard as they can. Tribe, says a former student, "seems to forget the prior positions he argued with equal vehemence." This would be OK if Tribe were content with merely backing liberal political positions. Instead, he casts himself as a scholar with fixed opinions on the meaning of the Constitution. "He wants a lot of different roles," says the student The disinterested witness, the passionate advocate, and the insider." Sometimes the roles get tangled up.
The conventional explanation of Tribe's frenetic activism is that he is desperately trying to get on the Supreme Court. Although his ambitions in that regard are hardly a secret — and hardly objectionable — Tribe says that his decisions have not been hedged by ambition. He says that if his sole goal were a seat on the Court, he shouldn't have testified against Bork. He says he is troubled by the "relative spinelessness" of colleagues who have strong views but decline to testify in such cases. "It is ridiculous to plan a life around the remote prospect of one day being named a Supreme Court justice," he says. "I don't dwell on the degree to which I may or may not have dimmed those prospects." Tribe almost had me convinced until he called back from his car phone to give more examples of things he never would have done if he were someone who thought about advancing his own career. He said that arguing the losing side in Bowers v. Hardwick, the Georgia sodomy case, was a bad strategic move, since conservatives would surely object to a nominee who had defended the right of gay people to have sex with each other. Several of Tribe's defenders also put forth this example. But it's hard to imagine a Democratic president appointing a nominee who couldn't find a constitutional defense for consensual sex among adults, as four members of the Burger Court managed in 1986. If Tribe weren't so concerned with making it to the Court, maybe he wouldn't be so concerned with proving he isn't.
A likelier interpretation is that Tribe unwittingly hurt his chances by speaking his mind in the Bork hearings and has been desperately trying to restore them ever since. It's a sad spectacle, since barring a sudden change in the political weather, his frantic positioning won't bring him any closer to the black robe he covets. The poignancy is that Larry Tribe seems to be the only one who doesn't realize his prayers will never be answered.
Jacob Weisberg is the editor-in-chief of the Slate Group.
By Jacob Weisberg