Convictions

Deb, I'm puzzled by your argument that John Yoo's OLC memos are somehow inconsistent with prevailing academic standards.  You write that it is "painful to accept that one of the top law schools in thecountry embraces the idea that one of its professors could teachstudents a course in Introduction to Constitutional Law while advancinga view of the Constitution that is simply without support in text,history, logic, or life."

But isn't this true for lots of law schools, and lots of law professors? As I see it, what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read in law reviews.  Most legal analysis on "hot button" con law issues found in law reviews is blatantly result-oriented.  The entire idea is to come up with a clever argument for why the law is what the author wants the law to be.  If the argument had support in traditional sources, then there would be no need to write an article on it.  (To be clear, I'm not defending this practice: But that does seem to be quite common.)  Yoo's memos were similar; they read like the work of a professor who has picked the result and is trying to fit the law to it without much succeess.

From that perspective, what makes Yoo's work so deserving of condemnation is that it settles for prevailing standards of academic legal scholarship instead of real, honest, serious doctrinal analysis.  Yoo should have known better: OLC is no place to act like a law professor.
 

A New York Times editorial , citing a recent study , complains that Supreme Court nominees don't tell the truth during their confirmation hearings, which makes it hard to predict how they will behave on the bench. The study measures the degree to which a nominee expresses a commitment to respecting precedent during confirmation hearings and finds little relationship between that measure and the actual propensity of that person, once confirmed, to respect precedent. The Times is troubled: "Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process."

But, as the study notes, there is a correlation between ideology and willingness to overturn precedents: The five more-conservative members were those who were more likely to overturn precedents. There is a simple reason for this. The conservative Rehnquist Court inherited the liberal precedents of predecessor courts, especially the Warren Court. We know from other studies that justices tend to vote their political preferences. So if Republican justices are to vote their political preferences, and the precedents that they inherit are liberal, they are going to have to overturn those precedents.

The New York Times has little to complain about. It is easy to predict how nominees will vote once they are on the court. Just look at their party membership and other evidence of their ideology and ignore what they say at their confirmation hearings.

See also

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As Melinda Henneberger notes, Sen. Obama is being accused of displaying a profound misunderstanding of so-called Midwestern or small-town values based on a recent comment. The senator explained how voters—angry and demoralized by their economic circumstance and the inability of politicians to improve rather than worsen their plight—"cling to guns or religion or antipathy to people who aren't like them."

With due respect to the good people in Melinda's hometown of Mount Carmel and with fond remembrance of my two decades in South Bend, Ind., I doubt anyone in those places is offended until Clinton and McCain ride into town and rile them up with falsehood and fear.

This is merely the inverse formulation of Obama's positive message to not fall prey to politicians of either party who seek support by dividing us. Instead of seeking peace, we have a president and his first cousin barely removed perpetuating an unnecessary war. Instead of addressing the poverty or immaturity or insufficient learning that can lead a young woman to terminate a pregnancy, partisans on both sides mystify us into thinking the next Supreme Court justice (so long as she is "our" nominee) will make it all better. Instead of working to limit crimes of violence by strengthening families, the polemicists of old politics construct the myth that when Madison penned "well-regulated militia," he meant ample home arsenal. Instead of honoring people of faith whose gospel motivates them to teach or ladle in soup kitchens or staff hospitals and nursing homes, candidates gratuitously stoke racial and religious hatred by constant replay of a minister's overheated rhetoric.

Now, having stirred up intense hate and suspicion toward each other, the message of Sen. McCain is: Cling to those hates, my friends. Woe be to anyone who would have the hopeful audacity to tell you to stop. Why, says Mrs. Clinton, you should have known all along that anyone who tells you, "Yes, you can" is a fraud. You know you can't. Insist on your right to see yourself as a victim. Don't vote your freedom—vote for me!

No, Sen. Obama, no apologies needed. When you call upon us to set aside divisions based on faith, you do not dishonor religion but rebuild its immunity from political manipulation. Like Pascal, you are reminding us that faith is "of another order which surpasses all the rest in depth and height."

It's a good reminder even if it did prompt Mrs. Clinton to reminisce about how her father taught her to shoot when she was a young girl in the Chicago suburbs. "Incoming!"

Over at The Nation , Stephen Gillers argues that the Yoo-Bybee torture memos violated canons of professional ethics , in part because Yoo and Bybee were confused about who their client was:

How could two really smart guys authorize torture using "one-sided legal arguments" that have "no foundation" in law? How could they be guilty of a "stunning failure of lawyerly craft"? The sad answer seems to be that they knew what the President wanted and delivered: torture is OK if you call it something else. Detainees are outside the protection of due process and civilized law. The President's authority is close to absolute. Anyway, no court can review him. (On this last point, the Supreme Court disagreed.)

This incompetence is especially serious because of the conduct it enabled. If a private lawyer gave such a lopsided and wrongheaded analysis to a business client, he'd be history. Lawyers advising private clients about to make important decisions (a "bet the company" kind of decision) meticulously analyze all sides of a question so the clients can assess risk and choose wisely.

The client deserved better ...

continue reading at Balkinization ...

I agree with

that the questions raised about Yoo's position at Berkeley are complex. I do not hesitate to hold Yoo ethically and morally culpable for what he did as a government lawyer. I am skeptical but I suppose open to specific persuasion that there is a clear case under existing law for his criminal culpability as well. Every employer has its standards for measuring its employees against these matters. And while I suspect Berkeley was mistaken to take him back for a variety of reasons, it seems to me inesapably the employer's decision about whether Yoo's behavior in these regards violated the standards they have.

What I find perhaps most troubling for a deep believer in academic freedom is that Yoo's most infamous legal memos (in particular, the argument that congressional statutes cannot constrain the president's exercise of his powers as commander in chief) are blatantly, embarrassingly wrong under the law. 

I keep wondering what Berkeley (or Harvard or Princeton, etc.) would do if a professor of molecular biology had written a medical opinion while in government employ disclaiming the truth of evolution—and not only that, had continued to vigorously defend his rejection of evolution once returned to his full-time employment teaching university students a course in molecular biology. Is academic freedom the freedom not just to be wrong (which of course it is) but also to be, in this sense, false? Or perhaps academic freedom extends as far to continue the professor's employment but to insist that he retitle his course not Molecular Biology but rather something to the effect of Professor Smith's Imaginings of the Biological World?

Law, of course, is not science—as much as it might pain some of us to admit. It is difficult in the extreme to declare a legal proposition false with the same kind of certainty with which one can declare evolution a reality. But as one who clings (so to speak) to some belief in at least the semi-autonomy of law, it is at least painful to accept that one of the top law schools in the country embraces the idea that one of its professors could teach students a course in Introduction to Constitutional Law while advancing a view of the Constitution that is simply without support in text, history, logic, or life. Because law is not science, and because academic freedom is part of the kind of world I want, in the end I suppose I'll just have to learn to accept it. Would I pay for my kid to attend this law school? Not in a million years.

In addressing whether Professor Yoo should be open to revocation of tenure or other academic status inquiry, Dean Edley and Marty Lederman have thoughtfully defended academic freedom and the rule of law. I concur. That does not free us from the lessons to be learned and taught, including pondering for contemporary purpose the meaning of Aeschylus, who wrote, "In the lack of judgment great harm arises, but one vote cast can set right a house."

This seems to be on the mind of many of my friends since my endorsement of the senator.

Frankly, given the nonpartisan, always-open-to-debate approach of the society, I saw no necessary incongruity, but then, sometimes I have been known to miss entire cities looking at a map.

So here's the thing: Taking Sen. Obama's expressed desire to transcend petty party division to be entirely genuine (please accept that as a given and don't wrestle with the premise) and believing the values of separated powers and federalist structure to be essential toward achieving good outcomes in matters of foreign policy, economy, and the environment (same stipulation), why is it not possible to see these timeless principles as being of service to either Democrat or Republican? The question has special relevance for folks like me who in the past operated on the largely mistaken supposition that there would be overlap between Federalist Society values and a Republican political administration.

Not wanting to be snookered again, I await your counsel.

We have detainees who are making teddy bears to give to their children when they come to visit.