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Outside pissing in

Coral Davenport writes in the New York Times:

Mr. Tribe, 73, has been retained to represent Peabody Energy, the nation’s largest coal company, in its legal quest to block an Environmental Protection Agency regulation that would cut carbon dioxide emissions from the nation’s coal-fired power plants . . . Mr. Tribe likened the climate change policies of Mr. Obama to “burning the Constitution.”

But can we really trust a reporter with this name on the topic of global warming? Coral is, after all, on the front line of climate change risk.

So what’s happened to Laurence “ten-strike” Tribe?

Last we heard from him, he was asking Obama for a “newly created DOJ position dealing with the rule of law.” Maybe if Tribe had gotten the damn job, he’d keep it on the down low about the whole “burning the Constitution” thing.

The noted left-leaning Harvard Law professor has gone rogue! And, like our favorite rogue economist, seems to have become disillusioned with our Hawaiian-born leader.

The news article also contains this juicy bit:

In addition to the brief, Mr. Tribe wrote a lengthy public comment on the climate rules that Peabody submitted to the E.P.A. Mr. Tribe’s critics note that his comment, which he echoed in an op-ed article in The Wall Street Journal in December, includes several references to the virtues of coal, calling it “a bedrock component of our economy.”

The comment also has phrases frequently used by the coal industry. . . .

Laurence Tribe using phrases written by others! That could never happen, right?

P.S. I was curious so I googled *Laurence Tribe bedrock* which took me to a legal document with this wonderful phrase:

This bedrock principle, one familiar to anyone who has taken an elementary civics class in any halfway adequate high school . . .

Damn! I knew that was my problem. My high school didn’t offer a civics class.

If this case ever gets to the Supreme Court, I expect Tribe will have some difficulty explaining these concepts to Sotomayor. As he put it so eloquently in his job-seeking letter to the C-in-C, she’s not nearly as smart as she seems to think she is. Elementary civics might be a bit beyond her.

25 Comments

  1. John Mashey says:

    I recall that Ben Franklin and Thomas Jefferson were scientists … and yes, they did some other things.

    I suspect they wouldn’t expect the Constitution to be used to try to eliminate use of science to help inform policy.

    If you do another round of seminar speakers, please consider including them!

  2. Rahul says:

    Snark apart, coal is indeed the bedrock of our energy economy. 40% of US electricity came from coal.

    • Andrew says:

      Rahul:

      I agree with that. But I don’t see the evidence that for Tribe’s claim that the EPA’s rule “manifestly proceeds on the opposite premise.” It seems pretty clear that the EPA recognizes that coal is a huge part of the energy economy, and with this rule seeks to reduce coal use. It’s fine for Tribe to disagree with this, to argue that the regulation would be bad for the economy, or even to argue that the regulation is unconstitutional.

      But, to say that the EPA rule “proceeds on the opposite premise”—that seems just silly. And quoting from the 1980 Democratic Party platform, or quoting Robert Jackson on “the principle that ours is a government of laws, not men,” or going on about high school civics doesn’t change this.

      I mean, sure, I understand on some level that this is how lawyers talk: it’s not enough to disagree with a regulation, you have to make it out to be horrible in all dimensions. But I don’t have to like it. And, of course, I have no idea which parts of that document were actually written by Tribe. Maybe he doesn’t mind signing his names to things that are manifestly silly, if he didn’t write them himself.

  3. Rahul says:

    A lot of the statements in that Coral Davenport NYT piece seemed devoid of reason e.g.

    “That a leading scholar of constitutional matters [Tribe] has identical views as officials of a coal company ….. there’s something odd there”

    Why is that odd? Isn’t it more likely that a scholar’s views align with *some* company? The company probably hired him *because* his views align with their interests.

    What is so odd here?

    • Andrew says:

      Rahul:

      I agree. A bunch of people are upset because Tribe is more conservative than they’d realized.

      • Jonathan (another one) says:

        It is not conservative to have a view of the constitution which sometimes supports conservative conclusions. If I believe the Constitution mandates no committment of troops without Congressional approval (for example — that doesn’t happen to be my view) then this position constrains both conservative and liberal uses of force. It will be conservative when the president is liberal and vice versa. Asserting that the EPA constitutionally lacks the power to implement its vision of the good is, on its own, neither liberal nor conservative. It depends on what policy the EPA has chosen.

        • Andrew says:

          Jonathan:

          I mean “conservative” in the contemporary U.S. sense.

          • Jonathan (another one) says:

            So did I! I just reread what I wrote and maybe I wasn’t clear. All I meant to say is that your constitutional opinions should probably not be congruent with your politics. We have the spectacle, of course, of conservatives defending Republican Presidential overreach and then professing horror at Democratic Presidential overreach, but my point is that Tribe should get credit for a consistent view of the Constitution, even if in this case, at this time, the result is (US) Conservative. What I’m saying is that I don’t think you have evidence that Tribe is more (US) conservative than people realized. It’s just that his vision of the Constitution, in this particular instance, happened to have a result which (US) conservatives find appealing. Now you might think that if were liberal enough, he’d just shut up, but not if his interpretation of the Constitution is more important to him than some passing left-right issue. And is it surprising that he might feel that way?

            • Andrew says:

              Jonathan:

              Sure, but it’s more than that. If Tribe were the political liberal he is advertised to be, he might say that greenhouse gases are a big problem and we have to do something about coal, but regretfully he has to oppose this EPA regulation because, despite its good intentions, it goes beyond what is Constitutionally allowed. But if you look at that linked document, he goes pretty heavily into coal-industry talking points, to the extent that I have to believe that he’s in agreement with much of it. So it does appear that he’s a political conservative on this environmental issue, not a political liberal who happens to hold classically conservative constitutional views.

              I can’t be sure about this—indeed, as noted, I have no idea what, if any, of the report was actually written by Tribe—but I do suspect that some people are angry at Tribe because he is evidently more politically conservative than was thought.

              • Rahul says:

                Well, Tribe does write this:

                “As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived.”

                My reading of Tribe’s position is, let’s act, but through constitutionally valid means. He seems to think EPA doesn’t have the legal right to do whatever it is doing in this case, but obviously the matter is so damn technical that I’ve no opinion about whether he’s right or wrong.

  4. Steen says:

    I think Tribe was calling coal “bedrock” ironically. Not a very hard rock, and you do not want to build a house on something valuable that can be mined out from under you.

    Also, perhaps the sentence should read ‘*other* phrases frequently used by the coal industry’. A quick search shows that the industry likes the bedrock phrase.

  5. Rahul says:

    One ugly issue this article highlighted is how terribly partisan we’ve become. Here’s a guy who seems liberal / Democrat for most purposes, has mostly good things to say about Obama, argues in favor of Obama’s immigration / healthcare policies.

    Yet, when he does oppose the party line on one issue, there’s calls of traitor & suspecting his sincerity & competency.

    That uggh you-are-either-with-us-or-against-us mentality.

    • Chris G says:

      > That uggh you-are-either-with-us-or-against-us mentality.

      Looking beyond Tribe and more generally at U.S. politics, the root of the problem is that the Republicans have been taken over by John Birchers – not literally but by individuals with that mindset. There is no equivalent on the Democratic side. There’s a challenge to the audience: Name the communists and communist-sympathizers in the Democratic party. Here’s another challenge: Create lists of Republicans who question the patriotism of others and of Democrats who question the patriotism of others. Compare and contrast. Who’s on whose list and for what reason?

      When it comes to poisoning political discourse, the contemporary Republican party owns that. Their you-are-either-with-us-or-against-us behavior puts many on the other side on the defensive. They are not the party of the center-right or low-key conservatives that they once were. They are right-wing radicals. They do not compromise. In light of that they must be fought tooth and nail, which naturally leads to you-are-either-with-us-or-against-us.

      PS Tribe has picked an absolutely awful position to defend. It matters not whether he’s generally a good guy or generally a jerk. It’s entirely appropriate to attack him becausee what he’s doing is inherently contemptible. Hell, if Gandhi or MLK did the job that Tribe’s doing I’d call them out on it. Prior good deeds don’t give you a free pass to do really bad shit every once in a while. “On balance I’m not a [felon/predator/vile human being].” is not a legitimate defense.

      • Rahul says:

        I’m confused. Which part are you saying is the “awful position” that’s ” inherently contemptible”?

        His defending big-coal? I don’t like Big-Coal much either, but if EPA is indeed overstepping its bounds then defending the bad guy seems even more honorable to me.

        • Chris G says:

          I’m saying that Big Coal’s interpretation of the law is perverse and that defending their interpretation is contemptible.

          • Rahul says:

            Ok. What EPA can / cannot do sounded really complex to me. Most constitutional law seems, in general, very complicated.

            Are you arguing intuitively or do you understand the intricacies of constitutional law that pertain to this case?

            • Chris G says:

              1) I’m a not a lawyer. I have only a layman’s understanding of constitutional law.
              2) With Item 1 as a qualifier, I’ve read summaries of the arguments for and against Big Coal’s position.
              3) I’m applying my priors on Big Coal and their sympathizers.
              4) Re Item 3, “Keep an open mind but not so open that your brain falls out.” (OT: Is that a Bayesian position? I consider myself more of a Likelihoodist. It squares with the latter philosophy.)

              • Rahul says:

                Fair enough. If Tribe’s constitutional law argument is indeed so weak I’m sure the courts will throw it out. No harm done.

                My priors say, Big Coal might be stupid & greedy but I doubt Tribe is some naive tyro at Constitutional Law to make some ridiculously stupid argument. He must think he has a fair chance he’s right.

          • Jonathan (another one) says:

            Really? Having just read the argument I don’t find it perverse in the least. Tribe’s statutory argument on “created ambiguity” sounds quite persuasive to me. The constitutional takings argument is weaker, but you’d need a fuller understanding of EPA’s basis than this brief presents (obviously) to come to any firm conclusions. On what basis do you find it perverse?

            • Chris G says:

              First, to Rahul’s point that he must think that Tribe must think he has a fair chance that he’s right, I’m sure he does. I also think he’s got a good chance of prevailing.

              > On what basis do you find it perverse?

              I find it perverse based on the likely consequences of victory.

              This isn’t an academic exercise like finding a flaw in some obscure math proof. It’s a decision that will have consequences – decidedly negative ones if Big Coal prevails. I find it perverse in that those who filed the suit clearly don’t give a shit about the consequences of their actions beyond it’s effect on their bottom line. Can Tribe and co prevail? Quite possibly. Would a victory expand civil liberties? No. Would a victory relieve the plaintiff of an undue burden? No. A victory for the plaintiffs would serve no constructive purpose.

              • Rahul says:

                It’s the eternal question of whether ends justify the means. A ruling against EPA does not imply coal cannot ever be regulated.

                e.g. Obama could pass an explicit law saying EPA has this jurisdiction. Correct?

                You could argue that he will not be able to pass such a law politically. Perhaps, but that’s what you get in a democracy.

  6. Chris G says:

    > Last we heard from him, he was asking Obama for a “newly created DOJ position dealing with the rule of law.”

    Because DOJ is still trying to figure out that whole “rule of law” thing? Actually, sarcasm aside, perhaps they could use some help in that area – see, e.g., http://www.rollingstone.com/politics/news/ag-eric-holder-has-no-balls-20120815

    Somewhat related, as a layman, I had a very favorable impression of Souter.

  7. John Mashey says:

    I think the (US) liberal / conservative labels have become rather useless in some ways.

    1) The Clean Air Act and EPA were Richard Nixon.

    2) The IPCC got going under Reagan and Bush 25+ years ago.

    3) In many ways, the split of opinion on (at least some) environmental issues has been manufactured since then by a subset of extreme conservative folks, fossil interests, the Kochs (both of previous) with help from the tobacco industry. (Big Tobacco was expert at this, and the R/D ratio of their funding shows it.)

    4) Arnold Schwarzenegger was dismissed by some as RINO, but the Hoover Institution is hard to do that to. See the Shultz=Stephenson Task Force. Is George Shultz conservative? Does he prefer revenue carbon-tax over divestment? (yes) Did he love his EV-1? (yes) Does he love his Leaf? (yes)

    5) On some metrics, many Republicans have similar views to Independents on climate, see Hamilton & Seitao A four-party view of US environmental concern.

    • Chris G says:

      > I think the (US) liberal / conservative labels have become rather useless in some ways.

      They have. While “liberal” elected officials generally hold at least mildly-liberal positions, on social issues if nothing else, self-described “conservatives” are anything but. “Conservative” now generally denotes right-wing radical views, nearly the opposite the Merriam-Webster’s definition of the word. That’s a relatively recent phenomenon – within the last thirty years or so. Once upon a time “conservatives” were conservative. Setting aside his criminal behavior, Nixon was relatively moderate when it came to domestic policy. Bush I was also relatively moderate. Times have changed.

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