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Larry Tribe’s (Belated) Mea Culpa

Seeing the star of Vice President Biden finally begin to fade with his decision to not seek the Democratic Party’s presidential nomination reminded me of the rather sad spectacle that occurred during his chairmanship of the Senate Judiciary Committee in 1987. When my friend, the late Bernard H. Siegan, was nominated by President Reagan for the U.S. Court of Appeals for the Ninth Circuit that February, he faced a firestorm of opposition due to his seminal advocacy of property rights and economic liberties.

Siegan’s path-breaking book, Economic Liberties and the Constitution (1980), advocated greater judicial review of legislation affecting property rights and economic liberties than the standard used by the U.S. Supreme Court since West Coast Hotel v. Parrish (1937). For this and other heresies, Siegan was regarded by the legal establishment as a radical—and in some ways he was—but mainly he was ahead of his time.

Later scholars, such as Richard Epstein, Randy Barnett, and David Bernstein, have carried on the debate, and brought grudging academic acceptance—if not consensus—to the point of view that judicial deference to economic regulation may be unwarranted or at least excessive. But, like the first soldier to disembark from the landing craft on Omaha Beach at Normandy, Siegan attracted the most fire.

In any event, Siegan’s critics “borked” him even before President Reagan nominated Robert Bork for the Supreme Court in July 1987. The New York Times described Siegan’s nomination as “one of the most bitterly disputed judicial nominations of the Reagan Era.”  “Crank,” “eccentric,” and “out of the mainstream” were just some of the epithets hurled at Siegan.

The worst insult, however, came from the esteemed Harvard Law School Professor Laurence H. Tribe, who wrote a letter to the Senate Judiciary Committee intemperately questioning Siegan’s “competence as a constitutional lawyer and his sincerity as a scholar,” and arrogantly deeming Siegan “unfit to serve as a federal judge.” The committee, chaired by Senator  Biden (D-DE), dragged out Siegan’s nomination for nearly 18 months—one of the longest delays in U.S. history up to that time—before ultimately rejecting him by an 8 to 6 party-line vote on July 14, 1988.  Of the 340 judicial nominations made by President Reagan until then, Siegan’s was only the second to be defeated in committee.

But Tribe’s unseemly grudge against Siegan continued. Tribe gratuitously disparaged Siegan’s scholarship in a footnote to the 1988 second edition of his once-dominant (but now defunct) treatise, American Constitutional Law. Siegan, an incredibly kind and gentle soul, was wounded by Tribe’s remarks, and wrote Tribe a letter in 1991 objecting to them and asking him to reconsider. In a long response to Siegan (provided to me by Bernie’s devoted widow, Shelley Siegan), Tribe did something remarkable: he said he had reconsidered. He now agreed with Siegan on the doctrinal point at issue, and would make an appropriate revision to the forthcoming supplement to his treatise.

Alas, the supplement was never published, having been eclipsed by a two-volume third edition. The first of the volumes was issued in 2000, but the second—where he intended to revisit his doctrinal quarrel with Siegan—went by the wayside with Tribe’s abandonment of the entire treatise. Unfortunately, Siegan died on March 27, 2006, never living to see his name “cleared” by Laurence Tribe.

While sorting through her late husband’s files, Shelley Siegan discovered the correspondence between Bernie and Tribe, and in 2006 she wrote Tribe a letter, following up to see if the disputed matters had ever been resolved, and also asking whether Tribe would reconsider his harsh assessment of Bernie in his letter to Joe Biden 19 years earlier. Once again, Tribe wrote a long and gracious response, explaining why the intended “retraction” in his treatise had not occurred, and also apologizing for his poisonous letter to Biden during Siegan’s nomination fight (which he claimed not to have re-read in the intervening 19 years).

Tribe admitted to her that if Bernie’s nomination were pending today, and if he (Tribe) were asked to weigh in, he would not have made what he conceded was an “unnecessarily ad hominem” statement questioning Bernie’s legal competence or scholarly sincerity. “To help correct the record if only posthumously,” Tribe copied Biden on his response to Shelley Siegan.

Shelley was understandably gratified by Tribe’s generous response, and after re-reading Tribe’s letter “many times,” she wrote him back to beseech him to ask Biden to have the letter reprinted in the Congressional Record, in order to clear Bernie’s reputation and restore some much-needed civility to the confirmation process. Tribe indicated that he would try to get Biden to do so, but stated that “I’m not sure he will agree.”

Predictably, Biden never came through. Ultimately, in August 2007, more than 20 years after Tribe publicly defamed Siegan, Bernie’s dear friend, Representative Dana Rohrabacher (R-CA), inserted Tribe’s long-overdue apology in the Congressional Record.

The moral of this story? There are several: The judicial confirmation process can be brutal and unprincipled; the academic mainstream, like the channel of a river, moves over time; intellectual leadership often bears a steep personal cost; this intellectual leader, Bernie Siegan, was a good and decent man; Larry Tribe incorrectly assumed omniscience but eventually realized his error and apologized; late apologies are better than none at all; and Shelley Siegan is a loving and devoted widow who worked to clear her late husband’s reputation even after his death. We should all be so lucky. Bernie, we miss you.

Reader Discussion

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on November 12, 2015 at 10:34:00 am

There are many that "shine" in our political spheres; but they are not "stars" and have not stars, they are at most moons, with all the aridity that implies, that may reflect light and energy from other sources, but generate nothing.

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Image of R Richard Schweizter
R Richard Schweizter
on November 12, 2015 at 10:53:24 am

[…] BERNIE SIEGAN AND LARRY TRIBE’S BELATED MEA CULPA. […]

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Image of Instapundit » Blog Archive » BERNIE SIEGAN AND LARRY TRIBE’S BELATED MEA CULPA….
Instapundit » Blog Archive » BERNIE SIEGAN AND LARRY TRIBE’S BELATED MEA CULPA….
on November 12, 2015 at 11:28:52 am

And another moral to this story. Joe Biden is, and always has been, a partisan hack.

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Wayne Duncan
on November 12, 2015 at 11:58:34 am

I was trying to raise the plane of civility, but you are exactly right about Biden.

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Mark Pulliam
on November 12, 2015 at 12:55:56 pm

Mr. Pulliam, with all due appreciation for your great post, I find almost every post on this site to be a wellspring for expression that the noble work for personal liberty with domestic goodwill is repressed by opinion-based ethics.

There's tyranny in the long-standing academic pride in and judicial obsession over opinion-based ethics. The victims of this injustice are those who suffer the consequential misery and oppression including the elite salaries of the professors, judges, and lawyers: the people. A civic people is that portion of the people who seek personal safety with domestic well-being. The judicial attention must reform to physics-based ethics, and this forum is at the leading edge of opportunity: A Civic People of the United States has emerged.

I had reduced my rate of reading these posts, because I have not found here the propriety to consider the views of a common citizen, in my case, a chemical engineer. I have a life and a purpose and need to focus on less hostile communications. There are people who respond to novel thinking.

Thus, I feel it is fate that I took the time to read exemplary goodness on the part of Mr. and Mrs. Siegan and you. My decision to take time with your post positions me to add to your list of morals evidenced by your story: the judicial mainstream has not the integrity to intervene for a civic people when injustice is occurring under judicial watch.

Opinion tolerates honesty. But physics does not brook honesty; physics demands integrity.

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Image of Phil Beaver
Phil Beaver
on November 12, 2015 at 13:38:13 pm

There are many hilarious comments, and not-so-flattering reactions to Tribe and Biden, in the Instapundit post linked as a "Trackback." Enjoy.

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Mark Pulliam
on November 12, 2015 at 14:20:08 pm

One more moral: Democrats will do anything to destroy a person if it advances their agendas.

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Skip
on November 12, 2015 at 14:56:10 pm

Wikepedia informs us "Laurence Henry Tribe (born October 10, 1941) is a professor of constitutional law at Harvard Law School and the Carl M. Loeb University Professor at Harvard University.

Tribe is a liberal scholar of constitutional law."

"Liberal scholar of constitutional law" is a contradiction of morals. Substitute "conservative" for "liberal" and you still have contradiction.

Neither approach serves personal liberty with domestic goodwill. Neither camp understands civic morality.

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Image of Phil Beaver
Phil Beaver
on November 12, 2015 at 16:21:38 pm

This post is good in so many ways. Thanks. I met Siegan in 1983. He was a truly decent man.

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David R. Henderson
on November 12, 2015 at 17:36:05 pm

Why should the Left be apologetic? They have achieved everything that they have wanted and worked for over the last 125 years by twisting the Constitution until it is meaningless. In essence the Constitution today is a dead letter and moot. It has been superseded and replaced with the Administrative State. Joe Biden,as well as most politicians,are the puppets and fools of the Elites.

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Image of libertarian jerry
libertarian jerry
on November 12, 2015 at 18:28:21 pm

I think Larry Salzman's 2006 essay lends great support to Pulliam's courageous post. See https://www.theobjectivestandard.com/issues/2006-winter/property-and-principle/ .

Quoting, "Siegan does not shrink from the conclusion that his proposal would necessitate judicial abrogation of most of the agencies, programs, and laws that constitute the regulatory state." We do not shrink from total reform.

This forum seems repulsed by A Civic People of the United States, which would establish civic morality neither using religious opinion, obsolete British opinion, nor any opinion-based ethic. A Civic People of the United States is collaborating on physics-based ethics. (The topic planned for February is the ethics of abortion as informed by physics.)

The originator is not now trying to collaborate with liberal constitutional scholars, but is trying to engage this one forum.

However, the website is being viewed worldwide, and, while the originator would prefer that personal liberty with domestic goodwill as well as personal safety with domestic well-being originate in Baton Rouge, Louisiana then spread to the USA anywhere will suffice.

Our goal is 70% awareness and some participation by each person by Constitution Day, 2017. By that we mean 70% of liberal constitutional scholars are on board, so soon we need to request their collaboration.

Through participation in this forum, I have come to realize that past liberal writers have mistakenly focused on the ought when all a civic people can expect is the could. Thus, a civic people could have personal liberty with domestic goodwill by collaborating: We the People of the United States ought to get involved.

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Image of Phil Beaver
Phil Beaver
on November 12, 2015 at 20:58:01 pm

Here is one of those comments:

Consider here motivations; in particular that of Tribe to interject himself into that project.

Consider those of Biden, a confirmed fabulist (or less).

They both appeared to have wanted to be more than they were or have become.

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Image of R Richard Schweizter
R Richard Schweizter
on June 07, 2017 at 23:31:12 pm

http://palander.net/

Larry Tribe's (Belated) Mea Culpa - Online Library of Law & Liberty

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http://palander.net/

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.