Larry Tribe, Originalist

What would Jesus say? Maybe Harvard Constitutional Law prof Laurence Tribe will tell us some day, but for the moment, he’s channeling his inner Hamilton which, miraculously, leads him to the place he so desperately wants to be. Yes, the same Larry Tribe who disclosed client confidences and then lied to cover it up. Not that the rumors of his pending liaison with Louise Mensch have produced physical evidence of any love child. Yet.

This time, Tribe has managed to get an op-ed in the Washington Post, a perk of being a Harvard lawprof, informing the groundlings that the Founding Fathers wouldn’t want Kavanaugh’s nomination to go forward. I didn’t even realize they knew who Brett Kavanaugh was, but then, I don’t teach con law at Harvard either.

The framers built the Constitution on the premise that men aren’t angels, and they did not trust a president’s nominees to the Supreme Court to be impartial in determining whether he should stay in office. At the Constitutional Convention, Virginia’s George Mason thought judges “surely” ought not preside over the impeachment trials of presidents to whom they owed their jobs; Connecticut’s Roger Sherman agreed. So the framers came up with a solution: They assigned the impeachment power to the House and the power to try impeachments to the Senate.

While Larry is being a wee bit disingenuous here, as the Constitution wasn’t crafted solely for the benefit of meeting George Mason’s concerns, and there were a few other people, not to mention 13 colonies, who had a say as well. But it serves Larry’s purpose, so suddenly the intentions of the Founding Fathers are defined by Mason’s thoughts and Sherman’s agreement. Mind you, Larry may not fall back on George Mason the next time, but somebody may remind him when he does a flip-flop about how much he liked George Mason when it served his purpose.

But the process of impeachment begins with articles approved by the House, and tried in the Senate, such that the Supreme Court plays no role in the political determination. So problem solved? Tribe says no.

The framers, however, did not anticipate two major changes to the court that have given it a significant role in the impeachment process. The court has gone from what Alexander Hamilton famously called the “least dangerous” branch to being a muscular and often partisan powerhouse with the ability to halt a criminal investigation before the impeachment process has even begun. In addition, our increasingly broad and unwieldy law-enforcement and investigative apparatus has given today’s Supreme Court many more opportunities to supervise criminal investigations and prosecutions.

To the extent this makes any sense, it would appear that Tribe’s attempt at creating some vague sense of Supreme Court “control” over impeachment relates back to its decisions as to constitutional law enforcement procedures. Not that the Supremes have, or would, create different procedures for law enforcement relating to investigations for impeachment purposes, but just its vague, generic authority that applies to deciding the constitutionality of things such as searches and seizures for everyone. And if its constitutional for us, it would be constitutional for impeachment.

As a result, with Judge Brett M. Kavanaugh’s confirmation hearings set to begin just as pressure to impeach President Trump palpably mounts, the framers’ attempt to guard against the court’s bias has failed.

Rarely has a non sequitur of such stunning magnitude appeared in print. To call this sophistry is unfair to decent sophistry. It’s bad enough that Tribe relies on a foundation that makes no sense, but to then take a blind leap off a deadly cliff is shocking. This is a Harvard law professor. A Harvard constitutional law professor. And he just said something this bizarrely inane.

It’s entirely understandable for progressives to hate Brett Kavanaugh, and to grasp at anything they can to try to prevent the inevitable. It’s similarly understandable that they remain outraged by the completely disgraceful refusal of the Senate to hear the nomination of Merrick Garland, a cynical political ploy of the worst order. So Tribe’s effort to do what won’t happen with Brett Kavanaugh, to go to extreme, even insane, lengths to try to derail his confirmation, isn’t a shock.

What is a shock is that someone of the stature of a Harvard con law prawf would publicly spew such nonsensical crap. His argument not only fails to make any sense, but it’s not even an argument. It’s . . . nothing.

But just as bad, perhaps even worse, is that the Washington Post would publish an op-ed that is so devoid of reason, of argument, of substance. Is it because they, too, hate Kavanaugh? Is it because it came from a Harvard lawprof? Had I submitted such an utterly vacuous op-ed, would they have published it? Ken White, maybe, but me? I don’t think so.

In the process of trying desperately to further political goals, we’re doing irreparable damage to law and logic, even the essence of rhetoric which should require at least a minimally rational argument for or against its target. This was pure, unadulterated crap. And coming from someone like Tribe, is it any wonder that people whose bias is confirmed by such drivel believe this crap to be credible?

Hate Kavanaugh all you like, not that it matters. But stop making people stupider because you have nothing remotely rational to offer. You too, Larry. No matter what Louise whispers in your ear.

Larry Tribe, Originalist curated from Simple Justice