BY DANIEL UNGAR
On Monday, The Harvard University Office of the Provost sponsored a lecture by Carl M. Loeb University Professor Lawrence Tribe titled “Remembering the Constitution’s Future: Anticipating the Roberts Legacy?” The lecture was also broadcast live via webcast.
Tribe, a nationally recognized expert on constitutional law, began by describing the reasons for holding such a lecture about the 218-year old Constitution when “the weather is much too nice.”
The University was obligated to hold this talk, he said, because of a new federal law. An amendment was added to a Senate spending bill by Senator Robert Byrd (D-WV) to require all schools which receive federal funding to hold an event commemorating the signing of the Constitution on or about September 17. The Constitution was signed in Philadelphia on September 17, 1787. Because the 17th this year fell on a Saturday, many schools across the country held Constitution Day within the week before or after the true anniversary.
Since its introduction, this amendment, Section 111 of the Consolidated Appropriations Act, has irked a few educators. Some law schools in particular have raised objections to the government’s mandating speech about a particular topic, arguing that the law violates schools’ First Amendment rights. Tribe felt that lately the Administration has come to utilize the threat of renouncing federal funding to wield excessive power over the activities of universities. As Tribe put it, the government is saying, “Our money or your speech.”
Tribe cited the pending case of Rumsfeld v. FAIR, in which the Forum for Academic and Institutional Rights sued to prevent the Department of Defense from withholding federal money from schools that prohibit military recruiters on campus. The day of the Constitution Day event, Tribe, in association with a number of HLS professors and Dean Elena Kagan, authored an amicus brief to be submitted to the Supreme Court in opposition to the Department of Defense’s interpretation of the Solomon Amendment, the Congressional mandate supporting the policy of ordering access for military recruiters.
The requirement to have an event related to the Constitution is vague, explained Tribe, because, “Almost everything is bound in some way by the Constitution. How endless are the possibilities of discourse!” He proceeded to discuss his choice for constitutional commemoration, the nomination and likely confirmation of Judge John Roberts for the office of Chief Justice of the United States and the effect that Roberts will have on the future of the Supreme Court.
Although there may be a tendency to compare a nomination hearing to putting that person on trial, Tribe said, the nomination hearings held last week by members of the Senate were predictably not trial-like. The purpose of the hearings were not to prove that the candidate is worthy or to prove that he is unworthy but for “the public [to be] satisfied that Roberts would be a safe custodian of the United States Constitution.”
Although Tribe expressed doubts as to Roberts’ judicial philosophy, he was impressed at Roberts’ “brilliant” handling of some hardball questions thrown at him by Democratic Senators, most notably from Senators Charles Schumer and Joe Biden. When asked repeatedly for his views on matters which are likely to come before the court, he politely declined to answer, citing Justice Ruth Bader Ginsberg during her confirmation hearing, when she said she would refuse to answer questions unless she had written about that particular topic extensively. Tribe related that when Roberts was told that there were cases which Ginsberg had in fact addressed, “[Roberts] said quite brilliantly, ‘I have to look Ginsberg and the other Justices in the eye and say, ‘I kept the commitment you made, not the commitment you broke.'” When Biden complained to Roberts that no senator could hope to be elected “without expressing broadly, and sometimes specifically, to our public what it is we believe,” Roberts responded simply, “Judges don’t stand for election.”
Tribe felt that Roberts might hold “too cramped a view of the extent of Congress’ power” compared to the power of the States. However, Tribe applauded Roberts’ awareness of the real consequences of his actions, saying that in this respect Roberts would follow the example set by O’Connor. Originally, said Tribe, he was concerned that Roberts would prove to be doctrinaire and principled like Justice Clarence Thomas, but after the hearings Tribe concluded that he was “pleased that [Roberts] may not be more doctrinaire than O’Connor.”
Professor Tribe ended his talk by saying that although the political values a candidate holds are important, the most important qualifications for a Supreme Court Chief Justice are “humility and modesty …qualities of pragmatism, of not being doctrinaire …These Roberts has in abundance.”