Ann’s excellent post concerning Jody Freeman and Richard Lazarus’ evisceration of Laurence Tribe raises an important question: why on earth would Tribe make such patently absurd arguments? Ann delicately suggests that the money Tribe is getting from fossil fuel interests may have “addled his judgment.”
I’m not so sure. Obviously, we can’t put the man on the couch, but I have a hard time believing that Tribe is just doing this for the money: he’s got plenty, so much so that the 1st Circuit had to rule once that his charges were exhorbitant for attorney’s fees purposes (so if he isn’t taking cases on contingency, he can just laugh his way to the bank). Ann’s suggestion is a little more subtle: once an attorney takes a case, he or she tends to psychically invest in it, so that he or she comes to believe in the justice of the struggle. Perhaps, but in this case, Tribe didn’t have to take the case in the first place.
Instead, we might look to the great American poet Robert Frost, who once acidly defined a liberal as “a man too broadminded to take his own side in a quarrel.” That’s Tribe. He has long tried to cultivate a reputation as someone so incredibly fair-minded that even those on the other side should take his views seriously, often going out of his way to downplay or even deny the impact of politics on his constitutional theory.
Someone with such a self-conception might find it irresistible to become the paladin of conservatives on a high-profile issue, especially since that issue is one where he lacks any particularly ideological commitment. See? I am so incredibly fair-minded that I will take the side of conservatives and get attacked by my own side! I don’t think that this is necessarily even conscious; it just seems to the subject as the “right thing” to do.
The irony is that Tribe’s probably subconscious attempt to burnish his reputation has done exactly the opposite, as Freeman and Lazarus’ response demonstrates. He wants so badly to rise above the fray that he winds up sinking below it. As David Hume remarked:
It is natural for men to persuade themselves that their interest coincides with their inclination.
Desperately attempting to show fair-mindedness might simply result in demonstrating soft-headedness.