My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.Yeah, please tuck your criticisms away where no one will see them.
But It's [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's 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.Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English? Are you saying the law professors who dared to engage with the opinion and scrutinize it on their blogs were mainly showing off and trying to further our careers? 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?
IN THE COMMENTS: Gahrie says: "Tribe's response comes from the same well of thought that Rather's response to the TANG memo forgeries did." Oh, yeah. Fake but accurate. She reached the conclusion we know is right, so...
MORE IN THE COMMENTS: David Walser writes:
I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He'd like the public to quit looking at the man behind the curtain. That can't happen if the rest of the professorate keep calling attention to The Great Judicial Oz' failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That's a greater risk to all Tribe holds dear than the matters that were at issue in this case.
UPDATE: This post is the main subject of the new podcast.