Larry Tribe Rights an Old Wrong Gail Heriot

As some of you know, our late colleague Bernard H. Siegan was nominated by Ronald Reagan to the U.S. Court of Appeals for the Ninth Circuit in 1987.  He was never confirmed.  Bernie had the misfortune to be nominated during the Bork Era and was thus one of the early victims of "borking."

Among those to attack Bernie was Harvard constitutional law professor Laurence H. Tribe, who wrote a very intemperate letter to Senator Joseph Biden (then chairman of the Committee on the Judiciary) questioning Bernie's "competence as a constitutional lawyer and sincerity as a scholar."  It was an ugly letter and a meritless accusation.  It contributed to the feelings of ill will between Democrats and Republicans that exist to this day in the area of judicial nominations.  And I'm sure it hurt Bernie.

Bernie's widow Shelley was sorting through his files after his death last year, and she ran across a 1991 letter from Tribe in which he told Bernie that he planned a citation to Bernie's work in a future edition of his Constitutional law treatise that would "please" Bernie more than the one in the earlier edition.  Curious, she wrote to Tribe asking where she could find the revised citation.  And she asked whether he had reconsidered his earlier harsh statement.

Tribe wrote back explaining that the revised citation had never made it into print, as he had never finished the new edition of his treatise.  "I regret that my decision not to publish the second volume of my third edition ... eliminated the occasion for a revised citation to your husband's 1987 book ...."

More important, Tribe took the opportunity to correct the wrong he committed against Bernie so many years ago.  He wrote that, while he continues to disagree with Bernie's views on the Constitution, if he had it to do again he "almost certainly" would not have said what he did.  Tribe wrote:

"Please permit me to apologize to you for the unnecessary ad hominem character of what I wrote to Senator Biden in May 1987.  To help correct the record if only posthumously, I am sending the Senator a copy of this letter.

Despite the differences in our perspectives, I came to think of Bernie, just as you write he thought of me, "as a colleague in the profession" we both truly love and consider "to be one of the noblest."  I am sorry to have caused him, or you, any distress, and am grateful for the opportunity your letter afforded me to set the record straight as best I could at this late date."

Yes, it's late.  I'm sure that Tribe would have preferred to write that letter to Bernie himself than to his widow.  But it's never too late.  Tribe should be commended for writing this letter, which I understand has now been made part of the Congressional record.  Not everyone is capable of writing an apology like that.  I know that Shelley appreciates it.

Twenty years after Bernie's nomination, the process of confirming judicial nominees is not for the faint-hearted.  And I don't think there's any way around that.  A lot is at stake.  But the next time someone is tempted to make an ad hominem attack on a nominee, I hope he will stop and think about  what it will be like to have to write a letter of apology to a grieving widow twenty years later.

Comments

[Tillman Fan]

I guess that it's better late than never. I'm a very big critic of the Bush Administration -- in fact, because of Bush I no longer consider myself a Republican -- but when Democrats today act as if the Republicans are the party that created the current partisan landscape, they should be reminded of conduct like Tribe's regarding Siegan, or of Ted Kennedy's remark that Bork would have blacks sitting at segregated lunch counters, etc.

[oldflyer]

Ridiculous. What a cowardly act. To paraphrase Mr Tribe. . . So sorry if I caused you any pain. Now that you have reminded me of my egregious behavior, I wish I had apolgized to your husband back when it might have meant something, even if it would not have salvaged his career aspirations. Nothing personal you know. Although I love the majesty of the law, politics take precedence, etc." . .

[Alan]

He "almost certainly" wouldn't have written that if he had it to do over? ALMOST certainly?

My, how much Tribe has learned in 20 years. Jerk.

[Nicolas Martin]

Was there something stopping Tribe from writing "that letter to Bernie himself than to his widow"? Is it wishful thinking or supernatural power that permits Gail to be "sure that Tribe would have preferred to write that letter to Bernie himself..."?

[Eric S]

Tribe made "right" not one thing. A late apology does not "right" such a horrible politically motivated act. The damage done to Bernie can't be measured and it certainly is not done so by a weak gesture.