gay porn teen porn teen porn sexy women horse sex free sex videos free sex videos ]]> http://www.scotusblog.com/wp/how-bitter-will-the-next-s-ct-nomination-be/comment-page-1/#comment-6287 Centerfield Thu, 03 Mar 2005 22:47:16 +0000 http://www.scotusblog.com/wp/uncategorized/how-bitter-will-the-next-s-ct-nomination-be/#comment-6287 <strong>Nil nisi bonum</strong> Without trying to plunge Centerfield's readers into a mire of legal subtlety, I would like to call attention to a situation that began to emerge twenty-four hours ago. Tom Goldstein, the proprietor of Goldstein & Howe, mentor to dozens of... Nil nisi bonum

Ramesh Ponnuru and Tom Goldstein continue to duke it out over whether Larry Tribe presented a fictional account of his argument in the Richmond Newspapers case. There’s even a n…

Even before the Chief Justice retires, newspapers and the blogosphere are focused on the question of the upcoming confirmation wars. (I won’t link here to all of the news reports and commentaries; Howard Bashman has comprehensively linked to the releva…

Jonah Goldberg, a fellow not easy to croggle, is “simply amazed that Ramesh [Ponnuru’]s smackdown on Larry Tribe . . . hasn’t gotten more play. I just read it over the weekend and I’ve been waiting for the blowback. Basically,

My own take is that it doesn’t work very well; the editorializing becomes a bit of a distraction. Fun distraction for readers, but probably not one that furthers the blog’s mission.

TG responds: I agree with this by and large. Hence the fact that I very rarely do it — I really can’t count 5 times in the blog’s history. In this case, I decided that it was best to create a separate blog for it because the further things I have to say clearly are my own personal views.

His email reveals he’s at Covington, and his firm biography reveals he went to Harvard law: http://www.cov.com/lawyers/dremes/biography.html.
Was Remes a student of Tribe, or does he otherwise know him? Google reveals Remes recently filed an amicus brief on behalf of Tribe’s side of a case: http://www.goldsteinhowe.com/blog/archive/2003_01_05_SCOTUSblog.cfm#87231553.

It may be Remes has no connection to Tribe, and in posting he’s acting simply as a lawyer concerned about Tribe being (in his mind) unfairly attacked. If so, that’s great.

Of course, if Remes has some sort of connection to Tribe, it should have been disclosed up front, just as Tom properly disclosed his conection, as it would tend to suggest Remes is acting as some sort of proxy for Tribe, who so far hasn’t issued the rebuttal to Ponnuru’s article he promised, although perhaps he is planning to do it in the form of a letter to the editor of the National Review. Some clarification, either way, seems in order.

TG responds: I disagree with this suggestion, although as with all the other posts I’ve read I respect it enough to put it up. It seems to me that there is a never-ending loop to this in which, for example, Brent Cooper is asked to disclose his contacts with people. If someone decides they want to provide context for their remarks, that’s fine. As I suggested in response to an earlier comment, I think people should take with a grain of salt the merits of comments when they don’t know the background of the author. But it doesn’t seem to me that there is merit to the idea that there is some sort of obligation to make a broader disclosure. Just my 2 cents.

LAURENCE TRIBE’S FRIENDS [Ramesh Ponnuru]

Actually, Jonah, there has been at least one attempt to defend Professor Tribe. It’s by Tom Goldstein, who notes in a partial disclosure that he “regularly work[s] with Larry Tribe on Supreme Court litigation.” His defense adopts several strategies to sidestep the issue of scholarly misconduct:

1) Mischaracterize what I wrote. Goldstein says that my criticism of Tribe is merely that he “very strongly implied” in 2003 that he had made a bold Ninth Amendment argument in a 1980 case when he didn’t. That’s part of the criticism in my article. But it’s not the entirety of it. And it’s important to note that it’s not the case that Tribe wrote one stray sentence or paragraph that strongly implied something false. The whole Tribe article makes no sense except as an attempt to portray his record in the 1980 case as different than it was. For example, since Tribe didn’t make anything close to the bold Ninth Amendment argument he later claimed to have made, there is ample reason to doubt Tribe’s 2003 account of having withstood pressure from powerful figures to back away from that argument.

2) Mischaracterize what Tribe wrote. That 2003 “essay . . . is actually about the death of Tribe’s father—a subject that Ponnuru essentially back-handedly mocks.” First of all, Tribe’s essay was not simply “about the death of Tribe’s father” and did not purport to be. It was about how that death gave Tribe the courage to be bold before the Supreme Court. I take it that Goldstein chooses the locution “essentially back-handedly mocks” since he can’t quote any examples of my actually front-handedly mocking the topic of Tribe’s father’s death. I did not mock that topic in any way. (Goldstein’s decision not to link to my article was strategically wise.) I didn’t, for example, suggest that Tribe’s treatment of it was “over the top,” as Goldstein does. I do, at one point, say that the “incident” which my article concerns—Tribe’s publication of an essay that seems to falsify his record—was “weird.”

3) Speculate about my motives. Goldstein believes that I am trying to damage Tribe in advance of a confirmation battle over Chief Justice Rehnquist’s replacement. I’m supposed to be under the impression that if Tribe’s credibility is damaged, there will be no other liberal law professors to write op-eds and testify against whoever Bush nominates. That’s nuts. I did the story because I thought it was an interesting story. Its timing reflects when I learned about the story.

My article stuck very closely to Tribe’s own words and to the record of the Supreme Court case involved. When I had to characterize, e.g., legal briefs, I tried to do so in as restrained and sober a way as possible, allowing for evidence that went against my thesis. (There was a very little bit of that.) I did not speculate about Tribe’s own motives. I did not do a lot of editorializing. I did not, for example, call Tribe slippery and dishonest. I am willing to say that, however, about one of his defenders.

TG responds: I may be alone in this, but I think this kind of vituperative response — e.g., slippery and dishonest — is illustrative of the mindset that my original post described. I thought Ponnuru’s original story was, as I said, silly — and I think his reply is silly too. That’s not my ducking the substance of these three points, the answers to which I think are pretty straightforward. I imagine (again, I haven’t talked to him about it) that Tribe thinks the piece in terms of his father’s death; Ponnuru thinks it’s about how that death gave Tribe the courage to be bold in the S. Ct. I think Ponnuru back-handedly mocks the death of Tribe’s father (through the use of scare quotes); Ponnuru thinks that’s insupportable. These are all judgments readers can make for themselves by reading the pieces, as I said in my post (which I don’t think anyone actually believes was intended to hide Ponnuru’s article, a piece that had been out for several days but had almost exclusively been mentioned in the conservative blogosphere). I leave it to those who’ve read both pieces to make whatever judgments they want.

But I don’t really see much of an answer to my basic point — that this enterprise is silly, a real stretch. Ponnuru implicitly denies that he was motivated by a desire to undermine Tribe pre-confirmation. So be it. My personal opinion of his level-headedness was higher before this posting on the Corner, but others can judge for themselves. (The hyperbole does run a little wild with the idea that my post suggested that Tribe was the only person who would oppose Bush’s nominees.)

I know that others delink these pieces in their minds from the looming confirmation battle. I don’t personally. Tribe does have a singular place in the S. Ct. confirmation process.

Now, Ponnuru’s post and David Remes’s response in his comment did inspire me to take a look at the substance of Ponnuru’s claim — bottom line, it appears that Ponnuru is (actually, to my surprise given the vehemence of his post) just wrong — and I’ll add an update to my original post on that score when time permits later tonight.

TG responds: I think this gets closer to my point, but maybe by proving it. I don’t think that the original post really conveyed that the commentator was speaking to my supposed liberal bias and relationship to Professor Tribe through something other than personal knowledge. My point was that the merit of a comment should be measured by the extent to which the reader is confident about what the reader knows. I’m not sure about the court@court.gov example. That was a post that equally disagreed with what I had written, and it wasn’t trying to suggest to the reader that the author knew some fact about me personally.

This comment says that I have a different political point of view than Ramesh. That I think is entirely fair and accurate. But I imagine that I fall into a place in the blogosphere that is underrepresented among authors of not being particularly partisan. It’s certainly true that I donated money to Kerry rather than Bush. So did millions of moderate people, just like millions of moderates who gave to Bush rather than Kerry.

The remainder of this comment seems pretty overstated. I won’t repeat it because it will then just come across as the use of scare quotes. I never said anything that approaches what’s described above regarding all attacks on liberal academics. I wrote in my post, and continue to believe — with some who agree and others who don’t — that these particular attacks on Tribe — the newest as something that seems profoundly silly — are targeted at him because of the prospect of a confirmation fight.

I agree with some of Tom’s original post. For example, Ponnuru’s discussion of the circumstances of the death of Tribe’s father is somewhat disrespectful, at least in effect, though I don’t think Ponnuru’s intent was to actually mock his death (I think Ponnuru was trying to show how Tribe used his “private” grief for dramatic effect in his public story, but if so it came off a bit clumsy). And there’s some logic to suggesting that the National Review may have given extra prominence to this story because of the upcoming confirmation hearings, though even if true that seems acceptable, as the upcoming hearings probably make Tribe a more newsworthy figure.

However, the comments last night arguing it’s incorrect to link this article to the Weekly Standard article on Tribe from September 2004, as part of some coordinated effort to hurt Tribe’s credibility preparatory to confirmation hearings, seem correct. Keep in mind the history of the Weekly Standard coverage. Several years ago, the Weekly Standard ran articles attacking Stephen Ambrose and Doris Kearns Goodwin as plagiarists. Last year, someone tipped the Harvard law dean to Ogletree’s plagiarism, and the Weekly Standard did an article on that once it surfaced. Then, Tribe himself opined on Dean Velvel’s blog about the problem of plagiarism, which led a law professor to tip the Weekly Standard about Tribe’s own borrowing from another scholar in a 1985 book (which Joseph Bottum mentioned in his article, and in more detail on Dean Velvel’s blog). Indeed, someone on The Volokh Conspiracy seems to see the Weekly Standard story on Tribe as closely linked to its earlier story on Ogletree: http://www.volokh.com/archives/archive_2005_02_27-2005_03_05.shtml#1109777023.

Remember also, the Weekly Standard article on Tribe came out last September, weeks before anyone knew Rehnquist was sick. So how could it have been part of a preemptive strike on someone who would likely play a role in confirmation proceedings on Rehnquist’s successor?

So the comment of “A Former Scotus Clerk Again” of 10:50 p.m. last night seems about right: conservative journalists are combing through the work of prominent liberal public intellectuals, Tribe’s come under scrutiny because of the tip last September to the Weekly Standard, and digging into Tribe’s more recent work has taken some time, and four months later has produced Ponnuru’s story. Ponnuru’s article on Tribe may not be the most important piece of legal journalism ever, but there’s nothing particularly nefarious about the timing.

TG responds: So now we begin to see some of the dilemmas created by comments. I freely permitted this one like all others but it would be more valid I think if it came from someone other than Anonymous at fakeaddress@yahoo.com. The commentator holds him or herself out as knowing me, but seems more to state conclusions than explain their basis. Larry Tribe isn’t my mentor. David Boies gladly would have worked for George Bush if he’d been hired. And my personal views aren’t remarkably liberal. I tried to lay that out in the original post principally through my expressed opinions on the President’s nominees. So my view is that this isn’t the kind of comment that people should give particular weight to until the author wants to explain the basis for it. Nonetheless, it certainly is entitled to be posted as a comment on the blog — just take it for what it’s worth.

Still, the most bitter confirmation battle yet? I just don’t see how anything could ever possibly be as contentious as the Bork hearings, or even Nixon’s first two appointments.

NRO’s Ramesh Ponnuru thinks Harvard law professor Laurence Tribe of “falsifying as fact what was, in truth, fantasy” — what Tribe himself has called the…

Mr. Ponnuru is simply wrong when he dismisses the Ninth Amendment argument as “a mere rhetorical flourish” in Professor Tribe’s merits brief in Richmond Newspapers. The characterization is unwarranted and unfair.

Professor Tribe devoted seven pages of his merits brief (Part II-D, pp. 53-59) to the argument that Ninth Amendment preserved the public’s right to observe criminal trials. The section, whose heading even quotes the Ninth Amendment, began as follows:

“D. Even if Not Otherwise Enumerated, the Right Is Implicit in Ordered Liberty and Is Among the Rights or Privileges ‘Retained by the People.’

Even if this Court should conclude that the right of members of the public to be present as observers at criminal trials finds insufficiently specific ‘enumeration in the Constitution,’ that fact alone could ‘not be construed to deny or disparage’ the existence of such a right, as one ‘retained by the people.’ U.S. Const., Amend. IX.

On the contrary, a Ninth and Fourteenth Amendment right, privilege, or immunity of access to criminal trials would follow directly, even without more specific textual enumeration, from the central role of such a right in the ‘Anglo-American regime of ordered liberty,’ Duncan v. Louisiana, 391 U.S. 145, 149-50 n.14 (1968) — a role at least informed, if not unambiguously guaranteed, by the First and Sixth Amendments, and one undeniably revealed in ‘this Nation’s history and tradition.’ Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977). . . .”

Professor Tribe then spent the next six pages supporting the proposition that the public right of access can be considered one of the unenumerated rights secured by the Ninth Amendment. The section concludes as follows:

“It follows that our right to attend criminal trials — to watch as silent observers the necessarily public drama of criminal justice — is secured not only by the texts of the First and Sixth Amendments, and not only as an interstitial inference from those two provisions taken together, but also as a cornerstoine of the Constitution’s fundamental structure.

Without that right, none of the other guarantees of liberty or of the rule of law could be assured. Both because the right has been honored by centuries of Anglo-American practice, and because its denial would leave a treacherous void in our constitutional scheme, that right must be counter among those ‘retained by the people.’”

Half of Professor Tribe’s 4-1/2 page reply brief was devoted to jurisdictional arguments. In the two pages devoted to the merits, Professor Tribe noted that appelles had not “addressed any of the reasons offered by appellants for concluding that the First, Ninth, and Fourteenth Amendments, in conjunction with the Sixth, have long secured a right to attend and observe criminal trials.” Ponnuru discounts this as a “stray comment,” but what more was there to say on a point the other side had failed to address?

In short, Mr. Ponnuru built his article on a premise that the briefs show is unfounded.