Tribal Mythmaking

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, Tribe is something of a fabulist – to borrow a phrase from (a more egregious) fabulist, Steve Glass.”

The silence has been fairly remarkable, given that Mr. Ponnuru’s article demonstrates quite conclusively that a memoir by Professor Tribe, purporting to recount the first case that he argued before the Supreme Court (“Public Rights, Private Rites: Reliving Richmond Newspapers For My Father” (Green Bag, Spring 2003)), is a work of fiction lightly embellished with fact. A similar exposé of a conservative legal guru would by now have been publicized far and wide, and all the left-wing blogs would be screaming for immediate decapitation. By contrast, a search for references to the Ponnuru piece on the right side of the blogosphere turns up very little: Power Line, Stop the Bleating, Outside the Beltway, Baseball Crank, The Volokh Conspiracy, Juris Pundit and A Dispensible Man. What’s more, except for the last two, every one of these posts is either neutral in tone or expresses doubt that Professor Tribe is guilty of any very serious wrongdoing. The consensus is that, while the fabulation is no feather in his cap, it ain’t a hanging offense either. Stop the Bleating is representative:

OK, even if Ponnuru’s right, Tribe’s sin probably is a venial one. Although there’s an outside chance that he deliberately invented facts to put himself in a better light, it seems much more likely that he was guilty of thinking very highly of himself, and of relying on memory for the details of a twenty-four year-old oral argument. (The two things would seem to tend to go hand-in-hand.) There’s no shortage of lawyers or HLS professors with titanic egos, so perhaps this sort of thing shouldn’t come as a terrible surprise. But still, it doesn’t reflect well on the man.

What’s more, it’s silly. Tribe is no Ward Churchill: He has real accomplishments to boast of. Whether you love or hate, agree or disagree with him, there’s no denying that he’s a tremendous – and tremendously influential – intellect. Which makes this story all the more unfortunate. Perhaps pride truly does goeth before the fall.

If that’s all that the gentleman’s enemies say about him, his pride won’t have to fall very far. For the record, I agree that the departures from the truth are adequately explained by the writer’s careless reliance, in what was after all a personal reminiscence rather than a scholarly article, on memories that have “improved” over two decades. There are parallels in countless autobiographies.

But here is something interesting. Legal commentator Tom Goldstein, who claims to be apolitical (and I have no reason to disbelieve him), avers that Ponnuru has fired an opening shot in an upcoming political fight:

The only thing I can figure is that the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms. Tribe is an icon of the left who probably would be involved in a nomination fight, so the National Review has now joined the Weekly Standard – you’ll remember its recent piece concluding that sentences in a book Tribe wrote a couple of decades ago had an “uncomfortable reliance” on a book by Henry Abraham, to whom Tribe had sent an advance copy and whom Tribe credited – at trying to take a (lame) crack at Tribe’s personal credibility. Ponnuru seems to hit a new low, however, in spending a lot of words trying to make such a trivial point about an essay that is actually about the death of Tribe’s father – a subject that Ponnuru essentially back-handedly mocks.

Thankfully, these personal attacks in advance of the nomination haven’t gone beyond Tribe. But there isn’t much optimism that we’ve yet hit rock bottom. This is certainly the kind of thing that everyone says illustrates how the process is broken.

Well, if that was Mr. Ponnuru’s crafty plan (which he pretty convincingly denies), it failed miserably. He didn’t even stir his ideological allies into denouncing his intended victim. Nor did the Weekly Standard’s plagiarism allegations – far better founded than Mr. Goldstein’s sanitized précis suggests – cause a great stir. The clear moral, I believe, is that the Right doesn’t confuse the personal with the political to nearly the same extent as the Left. Proof that Laurence Tribe has a bad memory isn’t trumpeted as discrediting his entire legal philosophy.

Mr. Ponnuru’s ideological subtext, to the extent that he has one, seems to me to be quite different: He bridles at Professor Tribe’s glorification of the Ninth Amendment.

There are people who think that the courts should strike down a lot of laws restricting people's conduct because those laws violate “unenumerated rights.” That idea horrifies others, who think that judges would then have a license to invent any right they like and nullify any law they don’t. For much of American history, the courts have in practice sided with the latter camp. They have not used the Ninth Amendment to overthrow laws and vindicate liberties.

Tribe’s essay casts himself as a kind of hero for breathing life into the amendment — and overcoming a lot of resistance to his doing so. His client had decided not to ask the Supreme Court to take the case. Tribe had to get the client to reverse its decision. He did, and then got the Court to review the case. He thought that a First Amendment freedom-of-the-press argument would not suffice to win: He would have to turn to the Ninth Amendment.

In reality, he didn’t. He argued the case on conventional First, Sixth and Fourteenth Amendment grounds. The Ninth Amendment, far from being the key to his client’s victory, played a minor role.

The Ninth Amendment is not without a place in jurisprudence, as a counter to attempts to draw negative inferences from the text of the Bill of Rights (a danger that Hamilton warned against in Federalist 84). It is also, however, an attractive vehicle for ideologues who would like to turn their policy preferences into constitutional principles. Professor Tribe’s account of how it supposedly protected a right that couldn’t be located among the enumerated ones is a minor contribution to Ninth Amendment mythmaking, but it deserved to be quashed – and has been.

Update (3/3/05): Tom Goldstein has decided that Ramesh Ponnuru’s article completely misrepresents Professor Tribe and has said so in two PDF’s, which his adversary has brushed aside. Mr. Ponnuru gets no marks for politeness; calling an eminent litigator “rock dumb” is neither civil nor true. Nonetheless, rude or not, his decision not to offer a surrebuttal strikes me as the right one. Nothing in Mr. Goldstein’s 17 pages strikes at the heart of Mr. Ponnuru’s case.

For the purpose of judging between the antagonists, here is, I think, the most significant paragraph in Professor Tribe’s memoir:

Who was I, an utter novice at Supreme Court advocacy, to buck the conventional wisdom on something so basic? Well, I was a lawyer who’d taken a case because he believed in it, who’d been teaching and would teach generations more of law students about the kinds of questions the case raised, who’d gone on record a couple of years earlier in a treatise, American Constitutional Law (1st ed. Foundation Press, N.Y. 1978) (now in its third edition as of 2000), on most of the issues the case touched, and who cared a lot more about keeping faith with what he’d feel bound to write and teach in years to come, and with how he thought the Court should be approached, than with what the Pooh-Bahs of the establishment thought of him. That’s who I was. And am. So the Ninth Amendment argument stayed in. And, I’m happy to report, in the end it hit its target. [emphasis added]

Mr. Goldstein cleverly parses those words in such a way as to minimize the stress on the Ninth Amendment. He also insists, in the manner of so many litigators who seem determined to whack down every tree regardless of the effect on the forest, that the amendment was more prominent in Professor Tribe’s earlier opening brief than Mr. Ponnuru concedes. Let’s grant that arguendo. (Still, it got only seven of 72 pages, starting on page 52.) What happened after Professor Tribe arrived at his resolve give the back of his hand to the Pooh-Bahs?

Mr. Goldstein does not claim that the Ninth Amendment was featured in the professor’s reply brief or oral argument. In the latter, he may have intended to refer to it in a sentence that was cut off before completion, or he may have been about to say something else. How can anybody know? Mr. Goldstein’s defense of the statement that “the Ninth Amendment argument stayed in” is that Professor Tribe didn’t repudiate it sua sponte in the face of “pressure”, about which no details are provided and which seems rather implausible, to do so. We are not told how all this non-discussion of the amendment “hit its target”.

Given that the accusation is nothing worse than bad memory tinged with self-glorification, this kind of defense does Mr. Goldstein’s virtual client no good. If I were engaged to plead Professor Tribe’s case, I would say only this: He wrote 23 years after the events in question, aiming not at a legal analysis of Richmond Newspapers but a recollection of what it was like to make one’s debut Supreme Court appearance shortly after a personal tragedy. His memory reduced the complexities of the case to the element that is now most important to him, its implications for the concept of unenumerated rights. Everybody else over about 30 years of age has similarly and harmlessly edited his past.

As I pointed out in the main body of this post, the great majority of right-of-center bloggers who have touched on this matter appear to hold views along the same lines: that any sin here is venial. I hope that Mr. Goldstein doesn’t devote too much further effort to goading them into changing their minds.

Update II (3/4/05): Mr. Goldstein has escalated the conflict, leading me to wonder where litigators get so much free time.

Update III (3/14/05): The latest – and we may hope the last – on this affair.