How Bitter Will The Next S. Ct. Nomination Be?
on Mar 1, 2005 at 5:44 pm
Every day, it seems still more clear that, if Chief Justice Rehnquist retires, the fight over his replacement is going to be nastier than any confirmation that came before it. Reasonable people of all political stripes always bemoan that fact, but it seems almost inescapable.
Today’s illustration is a piece by Ramesh Ponnuru in the National Review Online going after Larry Tribe for a discussion of the Ninth Amendment in a Green Bag piece he wrote a couple of years ago. Is the National Review tackling a disagreement about the meaning of that constitutional provision? No, Ponnuru takes issue with the fact that Tribe “very strongly implied†that he had “made an extensive Ninth Amendment pitch†in the Richmond Newspapers case a quarter-century ago. Ponnuru thinks that strong implication is inaccurate.
Feel free to read the Tribe and Ponnuru pieces yourself. But there is a broader point here: what is a serious publication like National Review doing publishing something so profoundly silly as this long piece? Could it be a short blog post somewhere? If it’s accurate, perhaps. But this is umpteen words in the print version of the National Review.
The only thing I can figure is that the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms. Tribe is an icon of the left who probably would be involved in a nomination fight, so the National Review has now joined the Weekly Standard – you’ll remember its recent piece concluding that sentences in a book Tribe wrote a couple of decades ago had an “uncomfortable reliance†on a book by Henry Abraham, to whom Tribe had sent an advance copy and whom Tribe credited – at trying to take a (lame) crack at Tribe’s personal credibility. Ponnuru seems to hit a new low, however, in spending a lot of words trying to make such a trivial point about an essay that is actually about the death of Tribe’s father – a subject that Ponnuru essentially back-handedly mocks.
Thankfully, these personal attacks in advance of the nomination haven’t gone beyond Tribe. But there isn’t much optimism that we’ve yet hit rock bottom. This is certainly the kind of thing that everyone says illustrates how the process is broken.
Full disclosure: we do regularly work with Larry Tribe on Supreme Court litigation. I didn’t talk with Tribe at all about the issue before writing this post. I do vaguely remember reading the Green Bag piece and thinking at the time that it was over the top, but that it was probably cathartic for Tribe, who is obviously trying to grapple with a very emotional issue.
FYI, for those who don’t know me, this is one of only a handful of times I’ve decided to editorialize a bit on the blog. I’m not a person who is at all active in partisan politics. People who know the firm know that we litigate what are perceived as liberal positions (e.g., that the nomination of Judge Pryor is unconstitutional) and conservative positions (e.g., arguing for the right of pervasively sectarian institutions to receive tax-free bond financing). I spent this morning mooting the states’ side of the Ten Commandments cases. The only stands I’ve ever taken on any nominee by any President were all in favor of Bush nominees: writing in support of Jeff Sutton; writing lengthy posts suggesting that John Roberts would be a great Chief Justice; and giving a bunch of interviews a couple of years ago saying that Janice Rogers Brown would be a very powerful nominee. So this isn’t just liberal push-back. I genuinely think that we are losing sight of substance in favor of personal attacks.
