One wonders how Ed Whelan of the Ethics and Public Policy Center managed to get a hold of a private letter sent to President Obama by Harvard law professor Laurence Tribe advising him against nominating Sonia Sotomayor to the Supreme Court, but be that as it may, its contents are quite interesting and show just how nakedly political Tribe’s view of a justice really is and also how little he thinks of Sotomayor.
In the May 2009 letter (PDF link here), Tribe advises Obama to refrain from choosing Sotomayor because “she’s not nearly as smart as she seems to think she is” and also that she is a “bully” who would would be unable to try to persuade frequent SCOTUS swing vote Anthony Kennedy to a “pragmatically progressive direction,” something that Tribe believes former justice David Souter had managed to do on occasion.
Instead of choosing Sotomayor, Tribe advised the newly elected president appoint Elena Kagan, the then-dean of the Harvard law school whom Obama would later nominate to the Court for a different vacancy, because he saw her as being more skilled at swaying Kennedy given her experience “gently but firmly persuading a bunch of prima donnas” at Harvard Law:
Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.
If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, 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 Roberts/Alito/Scalia/Thomas wing of the Court…
[Elena Kagan's] techniques for mastering the substance of many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case — techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time — are precisely the same techniques I can readily envision her employing not just with justices like Kennedy but even with a justic like Alito or, on admittedly rare occasions, with a justice like Scalia or Roberts.
One can’t help but think that the disclosure of this patronizing letter will render much less effective whatever overtures Kagan and her left-wing court colleagues will make toward Kennedy in the future. I can’t imagine Sotomayor extending Tribe any sort of courtesy after he essentially called her a not-so-wise Latina, either.