Laurence Tribe

After the angst of Justice Brett M. Kavanaugh’s confirmation proceedings, even Justice Elena Kagan is talking publicly about the damage to the Supreme Court’s credibility. I asked constitutional scholar Laurence H. Tribe and ethics guru Norman Eisen about the status of the high court and what could be done to shore up its standing with the American people...Tribe: The risk to the Supreme Court, as I suggested in a recent New York Times op-ed that Justice John Paul Stevens referenced before Judge Kavanaugh’s confirmation, is that the court will lose the trust of the American people — trust without which it can’t perform its vital functions as a balance wheel of democracy and a protector of vulnerable individual rights.

Roughly two dozen Harvard Law School professors have signed a New York Times editorial arguing that the United States Senate should not confirm Judge Brett M. Kavanaugh as an Associate Justice of the Supreme Court. Harvard affiliates — including former Law School Dean Martha L. Minow and Laurence Tribe — joined more than 1,000 law professors across the country in signing the editorial, published online Wednesday. The professors wrote that Kavanaugh displayed a lack of “impartiality and judicial temperament requisite to sit on the highest court of our land” in the heated testimony he gave during a nationally televised hearing held Sept. 27 in front of the Senate Judiciary Committee....As of late Wednesday, the letter had been signed by the following: Sabi Ardalan, Christopher T. Bavitz, Elizabeth Bartholet, Christine Desan, Susan H. Farbstein, Nancy Gertner, Robert Greenwald, Michael Gregory, Janet Halley, Jon Hanson, Adriaan Lanni, Bruce H. Mann, Frank Michelman, Martha Minow, Robert H. Mnookin, Intisar Rabb, Daphna Renan, David L. Shapiro, Joseph William Singer, Carol S. Steiker, Matthew C. Stephenson, Laurence Tribe, Lucie White, Alex Whiting, Jonathan Zittrain

An op-ed by Laurence Tribe. Several senators have said they would not vote to confirm Judge Brett Kavanaugh as a Supreme Court justice if they believed he would vote to undo the basic protections for women upheld in Roe v. Wade and other cases. So if his testimony and his meetings with those senators had exposed that as his almost-certain path, they would vote no. But the only reason his public testimony and private meetings didn’t reveal such a clear inclination is that Judge Kavanaugh dissembled about his views, calling the Supreme Court’s abortion rulings “precedent on precedent,” as though that rendered them safe from his slippery keyboard. The truth is it does nothing of the kind. Which means that senators who have, rightly or wrongly, made that a litmus test face a rendezvous with destiny in deciding on this nominee.

...McConnell is right in one respect: The longer Kavanaugh hangs out there the less voters approve of him and the more serious concerns about his political bias are raised. As to the latter, constitutional scholar Laurence H. Tribe is one of many legal gurus who argue Kavanaugh’s rant made it impossible for him to serve without eroding the Supreme Court’s credibility. “In Caperton v. Massey Coal, the court held that a judge politically beholden to one of the litigants must recuse himself, and in Williams-Yulee v. Florida Bar, it held that the need to preserve judicial impartiality trumps the rights of judicial candidates to solicit campaign contributions,” Tribe writes in the New York Times.

An op-ed by Laurence Tribe. Much might be said about Judge Brett Kavanaugh’s possible confirmation to the Supreme Court: in terms of his still only partly disclosed professional record, the allegations of sexual assault and his candor, or lack of it, in testifying before the Senate Judiciary Committee. But apart from all that — and apart from whatever the reopened F.B.I. investigation might reveal — the judge himself has unwittingly provided the most compelling argument against his elevation to that court. His intemperate personal attacks on members of the Senate Judiciary Committee and his partisan tirades against what he derided as a conspiracy of liberal political enemies guilty of a “calculated and orchestrated political hit” do more than simply display a strikingly injudicious temperament. They disqualify him from participating in a wide range of the cases that may come before the Supreme Court.

President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode. Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond...“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations. “It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”...“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school. “The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.

...Within the legal profession, [David] Boies was already a legendary figure. But Bush v. Gore gave him a taste of national celebrity. ...“I’m disappointed by how far he seems to have moved toward the dark side,” says Laurence Tribe, the liberal Harvard Law professor who was Boies’s co-counsel on Bush v. Gore. Then again, maybe the great David Boies was comfortable on the dark side all along.

...“As a Supreme Court justice, Kavanaugh would not be bound by the rules applicable to judges on the U.S. Court of Appeals with respect to recusal,” says Harvard law professor Laurence H. Tribe. For lower-court judges operating under those guidelines, Tribe argues “there is a very strong argument that Kavanaugh’s intemperate screed attacking liberal groups and spinning conspiracy theories when he testified on Thursday afternoon now requires him to recuse in any case where such groups appear before the Court of Appeals on which he sits.” Tribe continues, “For him to remain on a three-judge panel that sits in judgment on any legal claim affecting such a group would obviously create at least the appearance of a conflict of interest and probably an actual conflict.”

As of this moment, it is unclear if Deputy Attorney General Rod J. Rosenstein is going to remain in office until the midterms, resign or be fired. If Republicans don’t retain the Senate, there is no telling who would replace him after that. The terms of his departure matter quite a lot. An impressive cross-section of lawyers, ex-governors, Republican loyalists and scholars wrote to Rosenstein this week, essentially pleading with him to stay to continue oversight of the investigation by special counsel Robert S. Mueller III...Another signatory, Laurence Tribe, tells me that how Rosenstein leaves is important, too. “Rod Rosenstein has been a vital defender of our constitutional republic. He is likely to face enormous pressure to cut and run,” he says. “But the man whose dedication to law I have long admired is better than that. If he is to be displaced by a partisan hack, he must make clear that it’s the president who is shoving him aside.”

An op-ed by Laurence Tribe. As the battle over Judge Brett Kavanaugh’s Supreme Court confirmation reaches its climax, the cascading emergence of seemingly credible charges of attempted rape, indecent exposure and other forms of sexual misconduct by the nominee has ignited a volatile mix of personal biography, judicial philosophy and national politics. The nation has certainly witnessed dramatic confirmation controversies before, but none has so explosively churned the political and the personal precisely at the nexus of a burgeoning social and cultural movement.

...‘’The battles over Supreme Court nominations from the early history of the republic focused on the nominees’ views of national debates about certain foreign entanglements, about a national bank, about legal tender, about slavery, or about economic regulation,’’ Laurence Tribe, the Harvard Law School expert on constitutional law, wrote in an email exchange the other day. “Those issues were of course packed with emotion at the time, but their intersection with individual nominees turned on the nominees’ philosophical and jurisprudential views largely apart from the ways they had conducted their personal lives, whether as adults or as teens.”

An op-ed by Laurence Tribe and Norman Eisen. Whatever happens to Deputy Attorney General Rod J. Rosenstein, he should not resign. If President Trump is determined to oust him, Rosenstein should insist that he be fired rather than leave voluntarily.

Several Harvard Law School professors said they were troubled by the sexual assault allegations recently levelled against Supreme Court nominee Brett M. Kavanaugh and called for further investigation into his alleged misbehavior...Law School Professor Michael J. Klarman, a constitutional law scholar, wrote in an email Sunday that, while some have argued that Kavanaugh’s actions as a 17-year-old are not relevant to the judge's ability to serve on the Court, he does not buy that reasoning.“I certainly agree with the idea that we should be pretty forgiving toward youthful mistakes. But attempted rape is a really serious charge. And serving on the Supreme Court is a privilege, not a right,” Klarman wrote...Law Professor Laurence H. Tribe ’62 took his views on the Kavanaugh confirmation process to Twitter Monday. “Closing ranks around Kavanaugh even before Dr.Blasey Ford testifies is proof positive that these Trumpsters either (1) don’t regard an attempted rape and a nominee’s false denials as relevant and/or (2) are ready to disbelieve her without listening,” Tribe wrote. Tribe expanded on his thoughts in an email to The Crimson...Law Professor Elizabeth Bartholet ’62 wrote via email that the Thursday hearings should be postponed pending an investigation.

Netflix CEO Reed Hastings is defending a segment featuring the word “retarded” that airs on the streaming service saying that such language falls within the bounds of “creative expression.”...For his part, [Laurence] Tribe said he was unsatisfied by Hastings’ reply. “I do believe that media entities like Netflix have a higher moral (even if not legal) obligation to consider the psychic and cultural consequences of their choices than the one Reed Hastings accepts in his invocation of ‘creative expression,'” Tribe told Disability Scoop.

...This week, the Kavanaugh matter is a stark symbol of a social and cultural issue that roiled the country and created the #MeToo movement long before the nominee’s name was known outside legal circles...‘’Turning the Supreme Court into an instrument of polarized politics,’’ Martha Minow, the former dean of the Harvard Law School and now the occupant of a prestigious endowed chair there, said in an interview, ‘’is bad for the country, bad for the rule of law and bad for everyone.’’...‘’The political and the personal have become entwined precisely at the nexus of the #MeToo movement with issues like sex equality in the workplace and in matters of reproduction and abortion,’’ said Laurence Tribe, a onetime Supreme Court clerk who is a prominent Harvard Law expert in constitutional law. The result, he said, was ‘’the first occasion in our history in which the long-term legal stakes of a particular nominee’s confirmation and the issues of character and attitude presented by an explosive personal accusation profoundly overlap.’’

Undergoing an FBI background check is standard operating procedure for a number of federal positions, including nominees for the Supreme Court. It’s a review that’s meant to probe a nominee’s qualifications as well as possible security risks the person could pose to the United States. ... Harvard Law Professor Laurence Tribe highlighted the possibility of blackmail in Kavanaugh’s case as all the more reason why the FBI should conduct a full review of the sexual assault allegations against him.

...The move is unprecedented. Never have we seen a president declassify documents in contravention of clear warnings from the intelligence community that doing so would harm national security...Others see the abuse of presidential power regarding classification as a parallel, but distinct, issue. Constitutional scholar Laurence H. Tribe argues, “Has this president repeatedly and dangerously abused his powers to classify and declassify information — risking our national security to punish his critics (as with [former CIA director] John Brennan), undermine the work of those investigating him and his family, and reward family members with access to sensitive information they would otherwise be unable to access? The answer appears to be “yes” and, at least, the question warrants systematic investigation by the House Judiciary and Intelligence Committees.”

...Here’s what our panel of legal scholars thinks should happen next...‘‘The question isn’t only whether Brett Kavanaugh can still be a Supreme Court Justice; it’s whether he can still be a federal judge." Catharine A. MacKinnon...‘This accusation cannot responsibly be ignored’ Laurence H. Tribe

An op-ed by Laurence Tribe. As fears mount over President Trump’s mental stability, more lawmakers and public-spirited citizens are turning in desperation to the 25th Amendment as a quick exit. But they should resist the temptation to pull that trigger. Because of the amendment’s complexity and many ambiguities, activating it to sideline Trump could unleash a dangerously destabilizing power struggle over the presidency rather than decisively ousting Trump. Early in Trump’s term, scholars (including me) explained that the amendment was designed for presidents who unexpectedly become mentally or physically incapacitated while in office, not those temperamentally unfit from the very outset. We believed that Trump fell only in the latter category. Yet now we must ask: Should that verdict be changed by the frightening episodes recounted in tell-all books, an anonymous op-ed, and a flood of disturbing press clippings?

An op-ed by Laurence H. Tribe, Timothy K. Lewis and Norman Eisen. Contemporary Supreme Court nomination hearings are always spectacles, but the one that began this week is exceptional. We face a confluence of events unique in our 229-year history: A president who is a named subject of a criminal investigation—and on whom the law may be closing in. And a nominee whose previous writings and commentary suggest he believes a sitting president is not subject to investigation or prosecution—views that in effect place the president above the law, although the nominee insists he doesn’t think anyone is beyond its reach.

...Laurence Tribe, a professor of constitutional law at Harvard and a co-author of “To End a Presidency: The Power of Impeachment,” told The Globe Post that an ordinary citizen in Trump’s position, “without doubt,” would likely be indicted for conspiracy to commit a federal crime. A sitting president, however, has never been indicted. The Department of Justice holds the position that indicting the president “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Tribe argued that other than precedent, there is no legal reason why a president cannot be indicted. “All the reasons people have offered make no sense and have no basis in the Constitution’s text, structure or history,” he said.