Let’s not confuse the masses with legal analysis

Laurence Tribe is unhappy with those in the legal community who think the NSA intercept program is illegal, but who are critical of the decision by Judge Taylor declaring the program so. While Tribe “can’t imagine” having written an opinion that, like Judge Taylor’s, does not address the 2002 decision by the FSIA Court of Review, Tribe decries those who “act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.”

Tribe scolds that “it’s not costless to harp on the details of a basically correct legal denunciation of [the NSA] program to the point of ridiculing the motives and capacities of the judge delivering the blow.” (Here, Tribe is being sloppy — harping on the details of an opinion cannot involve ridiculing the author’s motives). In fact, it is Tribe who elects to talk about motives. He implies that those who “harp” on the details of the opinion (or, if Tribe were to state the grievance honestly, those who harp on the fact that the opinoin is largely devoid of legal analysis) are “underscor[ing] [their] own professional credentials and. . .cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.”

Ann Althouse responds to Tribe’s call for self-censorship by the liberal professoriate with these questions:

Are you saying that ordinary people who don’t read law reviews and who are trying to understand current events shouldn’t have the benefit of law professors helping them understand an important new case, that we’re distracting them from their proper job of despising the President? You want people to concentrate on the judge’s conclusion and not to question the judge’s reasoning and analysis? To do that is to bow to authority. If that’s what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he’s doing. Why shouldn’t people accept that “important conclusion” and leave it for the experts to hash out the details in law review articles?

The comments section accompanying Professor Althouse’s post also contains some well-deserved barbs for Professor Tribe.

JOHN adds: A lot of years have gone by since I knew Larry Tribe as a superbly fair-minded professor. It is inconceivable that, in those days, he would have defended a district court opinion that failed even to acknowledge the fact that it conflicted with every appellate decision on the controlling issue. But the Democratic Party, to which Larry is loyal, has become a party of hate; and hate has superseded any pretense of rational analysis. It is a sad fate for a once-fine intellect.


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