http://www.salon.com/news/opinion/glenn_greenwald/2010/10/29/tribe/index.htmlOn May 4, 2009, Harvard Constitutional Law Professor Laurence Tribe wrote a private letter to his former student, President Barack Obama, urging Obama to select fellow Harvard Law Professor (and Dean) Elena Kagan rather than Sonia Sotomayor to replace Supreme Court Justice David Souter, who had just announced his retirement. That letter was obtained and published yesterday by National Review's Ed Whelan. Tribe argued, in essence, that Sotomayor is not particularly bright ("not nearly as smart as she seems to think she is") while Kagan is breathtakingly brilliant. None of that is surprising: many liberals in the legal community revealingly looked down in scorn upon the perceived lack of intellect of the highly accomplished and intelligent Sotomayor (as Jeffrey Rosen's dissemination of the smears of his anonymous, cowardly "liberal" friends proved), while many Harvard Law Professors instinctively serve as boosters for their fellow Harvard academics. That's all par for the course.
What I think is most notable is the last paragraph of Tribe's letter:
For all these reasons, I hope you will reach the conclusion that Elena Kagan should be your first nominee to the Court. And, if I might add a very brief personal note, I can hardly contain my enthusiasm at your first hundred days. I don't underestimate the magnitude of the challenges that remain, and I continue to hope that I can before long come to play a more direct role in helping you to meet those challenges, perhaps in a newly created DOJ position dealing with the rule of law, but my main sentiment at the moment is one of enormous pride and pleasure in being an American at this extraordinary moment in our history.
By the time Tribe wrote that gushing fanboy paragraph, Obama had already asserted the Bush-replicating state secrets privilege in order to protect torture, rendition and warrantless eavesdropping from judicial review; had, as the NYT put it, "told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team"; The NYT's Charlie Savage had warned "of Obama's "continued support for [] major elements of its predecessor’s approach to fighting Al Qaeda," including "continuing the C.I.A.'s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone"; Obama had demanded that there be no investigations of Bush crimes on the ground that we must Look Forward, Not Backward; and the administration had made clear that it intended to preserve and continue Bush's military commissions system (albeit with some revisions).
Given that liberal opinion leaders like Tribe were falling all over themselves in praise of Obama even as he pursued such policies -- rather than speaking out against them as they did under Bush -- is it really any surprise that Obama continued on this path? A mere three weeks after Tribe sent his reverent/employment-seeking letter, Obama announced that he would imprison some detainees at Guantanamo without any trials or tribunals at all -- a policy Tribe had previously denounced as the epitome of tyranny when Bush did it:
"We can't put people in a dungeon forever without processing whether they deserve to be there." If even the leading liberal Constitutional scholar was sending Obama unqualified love letters as he embraced the worst of the Bush/Cheney policies, why would the President possibly have thought there was any reason to stop? He obviously didn't, and hasn't.
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