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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, October 28, 2010 ::
    Match wits with the Tribe!

    Progressives! Thanks to Ed Whelan, of NRO and the Ethics and Public Policy Center, you can now compare your pre-Sotomayor, pre-Kagan SCOTUS picks with those of Prof. Larry Tribe! Are you too a master left-activist? Did you make the same picks, or if not, did you make better arguments for other ones?

    Here's what the master said.

    Now, we at Ninomania did not do backflips over Justice Sotomayor's intellectual voltage at the time of her nomination, but, now that we've read a few of her opinions and participations in oral arguments, even we think "not nearly as smart as she thinks she is" is going it a bit rough, don't you? And "bully"? Meh, Court security is very tight, and as for oral argument, as long as both Scalia and Ginsburg are there, So-So will remain lucky to get a word in, much less dominate.

    As for Lady Kaga, the "she'll wrap Kennedy around her little finger" meme has been out and about since the day Stevens resigned (maybe the Tribe letter was fueling it behind the scenes), and I can't help but think that with someone like Justice Kennedy, who does read his press clips, it will be counter-productive. How many "Kagan Smile Draws Kennedy Vote" 2nd-day folo stories can there be before Tony the K starts crossing to the other side of the corridor, literally and figuratively, to avoid her?

    I'm also having difficulty with Prof. Tribe's planet on which popular attitudes on judicial issues are influenced by touring Justices. It's true that Justices Scalia and Breyer have something of a dog-and-pony show in which they go around debating things like the Court's use of international law, visibly enjoying each other's wit and wisdom. It's the best in con-law-nerd entertainment, but I doubt whether it drives either popular opinion or actual cases.

    And Prof. Tribe thinks Justice Kagan will clean up in this arena -- how? With her intellect? This is indubitable, but it also led her, in arguing U.S. v. Stevens as Solicitor General, to make the argument that, under the First Amendment, the value of any and all speech can and should be subjected to a judicially-administered balancing test -- an argument that Chief Justice Roberts, writing for the Court and ruling for the defendant, called "startling and dangerous." (slip. op. at 7) I.o.w., her radicalism is not necessarily as "constrained" as Prof. Tribe's letter assumes.

    With what, then? Her smile? Prof. Tribe needs to update his crushes.

    :: David M. Wagner 2:07 PM [+] ::

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