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I'm inclined to agree with Orin that John Yoo's memos, while wrong and at times pathetic in their attempt to defend the indefensible, would not be anything close to grounds for termination of a tenured professor had they taken the form of a law review article. I don't agree that such ends-driven argument is the norm in legal scholarship—here I agree with Deborah—but it's certainly not unheard of, and it's unimaginable that anyone would propose firing a professor for a really bad, ends-driven law review article.
What makes Yoo's memos so troubling isn't that many of the legal arguments are bad—it's that it looks like he was basically writing a brief in favor of executive power when his job and his ethical duty was to offer a balanced interpretation of the law that considered the broader public interest. That's what Tim Wu was getting at when he wrote about Yoo sucking up to Donald Rumsfeld on the squash court. That's what several people meant, I think, when they said Yoo undermined the rule of law.
I always cringe a little when anyone talks in weighty tones about "the Rule of Law" because I worry that we conflate two distinct ideas, one of which is often wrong. One is the idea that complex legal questions have right and wrong answers that are apparent to people with sufficient professional competence. I'm often quite skeptical of this claim, for reasons I won't detail here. The other idea is that our legal system requires people in certain positions (judges, counsel to governmental agencies, and officials) to act and decide legal questions in the public interest rather than in the narrow interest of some specific client or constituency: In the old days, people spoke of "the rule of law" as opposed to "the rule of men." This commitment goes the very heart of what it means to be a profession (and I think you can believe believe this without believing that what the professionals must do is find the "correct" interpretation of a legal text or arrive at the "correct" resolution to a legal dispute).
The concern is that the Yoo memos undermined the rule of law in this latter sense. As Phil suggests, such a breach of professional ethics might make him unfit to train future lawyers—it would certainly make him unfit to teach legal ethics. That is different than a bad law review article, where it's arguably consistent with the job (though not the job at its best) to write ends-driven work—at any rate, it certainly isn't a breach of any ethical duty. But we'd need to know whether Yoo was in fact simply writing a brief for executive power, or whether his was a sincere—but failed—attempt to interpret the law. That's why Chris Edley's letter noted that Yoo believes his arguments are sound. If that's true, then there's no ethical breach—only a bad argument. And bad arguments, as Orin points out, aren't all that uncommon in legal scholarship and certainly aren't enough to get you fired.
So, Yoo's memo may not be enough to discipline him under Berkeley's standards (and they probably shouldn't be enough: I'd hate to see the types of witch hunts that could get whipped up if we started trying to decide whether lawyers in government service who made very unpopular arguments were sufficiently sincere to merit keeping their tenured appointments after they leave government service). But there are sanctions that collectivities can impose other than formal ones. I bet students and colleagues will make Yoo's life sufficiently unpleasant that he won't want to stay: I give him two years at most before he resigns voluntarily.
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When the Supreme Court decided the global-warming case last year—rejecting the Bush administration's claim that it had no legal power to issue rules regulating greenhouse gases to combat climate change—it seemed to be a landmark ruling. And in some ways, it was. But it has now turned into a case study of how an agency committerd to doing nothing can fend off the courts and the public. Ever since the court’s decision, the EPA has been engaged in a pitched battle not only to refrain from exercising the authority the court has conclusively held it has, but also to refrain from explaining why it's not exercising it. And so far, the administration has been pretty successful. Of course, the state of California did seem to force the agency’s hand when it asked the EPA to waive a federal law that otherwise would have prevented that state's own greenhouse gas rules from going into effect. If the feds weren’t going to act, the states seemed to be saying, they would! Although it appears the administrator's legal staff strongly favored granting the state waiver request, the EPA denied it on Dec. 19 of last year, touching off a mini-firestorm regarding agency politicization and teeing up the state’s court challenge of the waiver denial Turns out, though, that the EPA’s delaying tactics know no bounds. Now that the state of California is trying to challenge the agency’s action in court, the agency is arguing that it did not actually reject the waiver request on Dec. 19. It merely corresponded with the governor of California as a courtesy. But given the statement the Governator issued that same day, it sure sounded to him a lot more like a formal denial than a friendly letter.
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A guest post from Jonathan Hafetz at the Brennan Center:
Even as criticism of Guantánamo mounts, Guantánamo’s underlying hypocrisy endures. That hypocrisy manifested itself again last week in a little-noticed decision by Washington, D.C. District Judge John D. Bates. The decision involves Abdul Hamid Abdul Salam al-Ghizzawi, a Libyan citizen transferred to the base in 2002 after, he alleges, Afghan warlords sold him for bounty. Like the hundreds of other Guantánamo detainees held as “enemy combatants,” al-Ghizzawi has never received a hearing on his habeas corpus application. In a recent filing, he complained that the government was refusing to provide him with adequate medical care and had denied him treatment for a severe liver condition that was jeopardizing his health.
Judge Bates denied relief, finding the treatment al-Ghizzawi had received was adequate. But his reasoning highlights the fundamental injustice at the heart of Guantánamo: Bates suggested that al-Ghizzawi’s claim should be analyzed under the same legal standard applied to convicted prisoners under the Eighth Amendment, which prohibits “cruel and unusual punishment.” That requires a prisoner to establish that government officials were “deliberately indifferent” to his “serious medical needs”—in other words, that the officials “knowingly and unreasonably disregarded an objectively intolerable risk of harm to the prisoner’s health or safety.” Negligence does not suffice. This heightened standard is justified because convicted prisoners are being punished for crimes and cannot expect the same level of care as those living in the world outside. But that justification falls apart at Guantánamo, where hundreds of detainees, like al-Ghizzawi, have been jailed for years without even being charged with any wrongdoing, let alone convicted of any offense.
Bates’ opinion ignores the underlying injustice that pervades al-Ghizzawi’s case and Guantánamo generally: The United States has imprisoned him for more than five years without charge or a fair hearing. Worse, after the Defense Department’s status review tribunal initially found al-Ghizzawi was not an “enemy combatant,” the Defense Department ordered a “do-over.” (Where, lo and behold, the tribunal found al-Ghizzawi an “enemy combatant.”) So, if, al-Ghizzawi is distrustful of Guantánamo’s medical staff, as Bates noted, he has good reason: He knows the status review tribunals are a sham and the results rigged.
Bates treated al-Ghizzawi like any other prisoner in any American jail who has been afforded his right to a trial under the U.S. Constitution. What Bates ignored, and what others too often forget, is that Guantánamo detainees have never had their day in court.
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Having just emerged from a period of reading many more law review articles than is no doubt good for my health, I guess I just have to dissent from your view, Orin, that "what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read" in legal scholarship. Yoo's memos certainly fit what one might describe as bad legal scholarship. But unless there's some law-faculty oath I don't yet know of, it sure doesn't seem to me like that's the "prevailing academic standard."
Part of our disagreement may just be identifying what's wrong with Yoo's work. You suggest that all of legal academe is filled with "result-oriented" work, as if this is the central failing of Yoo. The memos are indeed result-oriented. But it seems to me quite possible to write a memo/article that reaches a result the author prefers while still making a useful contribution to scholarship—either because the article sheds useful light on the historical, philosophical, pragmatic, etc. underpinnings of the theory she supports, or because it honestly engages an existing debate and makes an original case for her side's view, or for a host of other reasons. Electing to pursue research one believes will ultimately support one's views—as long as the research itself is honestly pursued and contrary results accounted for—doesn't necessarily doom the work.
It's thus your later criticism that's the key—i.e., that the work isn't "real, honest, or serious." By that metric, Yoo's memos just don't fly. I haven't read everything in the law reviews this year (heaven forbid). And I'm willing to buy results-oriented as a descriptor. But do you really think the prevailing standard is also dishonest or false? If so, we may be in the wrong business here.
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I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly: Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?
The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no." That seems to be the answer Senator Obama wisely supplied.
Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture. In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.
Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position. Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks. And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.
The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."
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Last week, I discussed the lawsuit of N.Y. Courts vs. N.Y. Governor and Legislature. Judith Kaye, the Chief Judge of the N.Y. Court of Appeals, has brought suit on behalf of the court system, arguing that the political branches have violated the principle of separation of powers and the compensation clause by failing to raise judicial salaries over the last nine years, a period during which the real value of those salaries declined by 25 percent.
The separation of powers argument is that if salaries do not keep up with inflation, they eventually become "inadequate," in which case the judiciary cannot perform its functions, becomes ineffective, and thus cannot check and balance the political branches.
Does the complaint prove that the N.Y. judiciary has become ineffective? It quotes a few judges who say they are unhappy and are likely to resign because of inadequate pay. But it does not try very hard. If the plaintiffs are right, then they should be able to come forward with statistics that show that N.Y. judges resign before the end of their terms in increasing numbers; that N.Y. judges enjoy less respect among practitioners; that trials and appeals are taking longer; that judges are committing more errors than in the past; that judges are less likely to rule against the N.Y. government; that they are more likely to be disciplined for improper behavior; and so forth.
Why doesn't the judiciary come forward with evidence that it is ineffective? Let's put aside the obvious PR implications of such an admission, and also the very likely possibility that, in fact, there is no such evidence of ineffectiveness. The real problem is that if there is such evidence, it would only undermine the plaintiffs' case. After all, if the N.Y. judiciary has become ineffective and lost its independence, why would it be appropriate for that same judiciary to resolve an interbranch dispute about judicial pay?
So here is the conundrum. Either the judiciary is effective, in which case it cannot successfully argue that the N.Y. government has rendered it ineffective by underpaying judges; or the judiciary is ineffective, in which case it cannot persuasively claim that it should hear the case! Heads the judges lose; tails the government wins. If the judiciary had lost its independence to the governor and the legislature, would it really have brought suit against them, and with the expectation that one of its non-independent members would rule in its favor?
In an effort to extract themselves from this dilemma, the plaintiffs style their argument as one about the future (the judiciary "cannot long remain an independent and co-equal branch of government ... if judicial compensation is permitted to decline by virtue of inflation"). So the argument is not that the real decline in pay has rendered the judiciary ineffective; it is that, at some point in the future, the decline in pay will render the judiciary ineffective. For that reason, the pay raise should occur now. But why shouldn't the government be able to put off any pay raise until the date, which may be years from now, when the judiciary is not yet ineffective but closer to being so than it is today? Without a theory about the minimum salary level that is necessary to ensure that the judiciary is effective (and the plaintiffs conspicuously lack such a theory) and evidence that this point is imminent (and the plaintiffs provide no such evidence), the N.Y. courts lack grounds for granting themselves relief.
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Will Bunch, columnist for the Philadelphia Inquirer, asked Sen. Barack Obama about the question we've been batting around for the last week or two on Convictions -- whether some Bush administration officials might face a criminal investigation or prosecution for ordering certain detention and interrogation practices. Sen. Obama has made his opposition to torture and the administration's detention regime a recurring point in his campaign speeches. (Full disclosure: I am a volunteer adviser for the Obama campaign on defense and veterans policy.) However, this response to Mr. Blunt goes further:
What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve. [emphasis added]
So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.
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To basically concur with Eric's post on the Constitutional Commentary article and the New York Times op-ed on the confirmation process, I think the article is banal and the op-ed is confused.
First, let's do the article. To advert again to the Casablanca line popular in this forum-I am shocked, shocked!-that justices are being cagey about their methodological and substantive commitments in their confirmation hearings and then diverging from them after being confirmed. Of course they are. No rational person who wished to get confirmed today would pull a Robert Bork, and ordinary people in fact do change their views over time.
The confirmation hearing is best compared to a job interview. Interviews give those privy to them a sense of the person's integrity, quality of mind, personality, ability to work with others, and so on. Interviews also introduce the candidate to the people who will be affected by their work-in this case the entire nation. But in my experience, job interviews are generally a less accurate predictor of a person's future performance than past performance in a similar job.
If that is true, a better predictor of what a Justice will do is what she or he did as a federal circuit judge, as this is the job closest to being a Supreme Court Justice. So it's no surprise that all nine Justices currently on the Court logged some time as federal circuit judges before they were elevated to the Supremes. (For some, like Thomas or Roberts, this was for a very short period of time, but I attribute the brevity of the stints to competing values-such as the countervailing concern that judges with long paper trails are harder to get confirmed.) I would therefore have been more interested in a study showing that judges dramatically changed their substantive and methodological priors after being elevated from the circuit to the Supremes.
Now let's do the New York Times op-ed. The op-ed states that the fact that Supreme Court nominees don't follow through on what they say in their confirmation hearings "makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process." I can see that it doesn't help, but I don't think it makes it "difficult." The fact that Supreme Court nominees have to be cagey does not, as mentioned above, mean that the hearings don't give the senators a lot of important information. And even if the senators are only voting for a justice to uphold a particular methodology or substantive commitment, confirmation caginess just means senators should ignore the hearings, as Eric suggests, and go to the paper trail. The op-ed even suggests as much when it states that "[s]enators should examine a nominee's entire legal career."
This raises a deeper problem with both the op-ed and the article-the unarticulated assumption that Justices who say one thing in a confirmation hearing and then do another are necessarily acting in bad faith or being inconsistent in an indefensible way. At the risk of stating the obvious, Justices who sit on the court for decades are likely to change their minds about some views they hold.
To take one of many examples, then-Justice Rehnquist was a vigorous dissenter in the 1970s cases that sought to give gender-based classifications heightened scrutiny. In the 1996 VMI case, though, Rehnquist voted with the majority to force an all-male college to open its doors to women. And of course, in the 2003 Hibbs case, he surprised a lot of people when he writes the majority opinion upholding the Family and Medical Leave Act.
At one point in his VMI concurrence, Rehnquist says state institutions should not be held liable for sex discrimination until they have received a clear signal from the Court that such discrimination is unlawful. That comes to my ear like autobiography-"don't hold me responsible for my prior views on sex discrimination because I didn't have a clear sense of its harms until a certain point in time." Rehnquist didn't say one thing and do another-he did one thing and then did another-or, to put it more bluntly, he changed his mind.
Of course, if I am to defend Rehnquist's drift from right to left on this issue, I must also be willing to defend drift from left to right. But that's not a problem for me for these purposes. To the contrary, I think it's inevitable that we as human beings will, in complete good faith, change, vacillate, and grow. It doesn't puzzle me that a person can't say in one slice of time (however important that slice is framed to be) what the stream of her future decisions will look like. What puzzles me that anyone would believe that she could.