John Yoo’s NYT Op-Ed Backfire

The New York Times yesterday gave most of its op-ed page to John Yoo, the Berkeley law professor who attracted odium from adversaries for writing the Bush-era legal memos seeming to condone torture as a presidential prerogative. The op-ed purports to challenge the views of Solicitor General Elena Kagan on presidential power, the tenor suggesting Yoo doubts she holds the correct views for a Supreme Court nominee.

If that is its purpose, though, the op-ed backfires, making it sound as if Kagan’s views are in the legal mainstream and Yoo’s views off in the fringe. One thus wonders why Yoo wrote the piece for publication in the Times—it is easy to understand why the Times would run it (and why Yoo would want to communicate it to like-leaning minds).

Yoo champions what he calls “the Bush administration’s theories of the unitary executive.” This refers to an interpretation of the Constitution reposing executive power exclusively in the President, unbound by Congress or courts. Yoo reads a 2001 Kagan law review article to reject finding any constitutional basis for such broad assertions of presidential power. To Yoo, this would be the mark of a bad judge, unsuited for the Supreme Court; what Yoo shows, however, is that this would be the mainstream.

Yoo makes a strong case that Kagan’s views are in the mainstream.  He interprets Kagan’s view as “in line with the views of a majority of the Supreme Court justices and many liberal scholars.” He also says she bases this rejection of absolute executive power on “Supreme Court precedent” (citing Youngstown Sheet and Tube, the 1952 denial of presidential power to seize private steel mills in wartime).

Yoo strengthens his inadvertent case for Kagan by adding that one Justice concurring in Youngstown, Robert Jackson, had, as attorney general in an earlier administration, asserted such broad power but, as a judge, was constrained to deny it. What that example suggests, yet Yoo seems to miss, is that Presidents and attorneys general, as politicians, are more likely to assert sweeping power than judges, as guardians of constitutional order, will recognize as lawful.

For his contrasting case, Yoo declares it to be “simply wrong” that the Constitution denies to the President the sweeping powers Yoo sees in that document.  For this, he cites dissenting opinions of the Supreme Court, criticizing Kagan for relying upon majority opinions which hold the opposite.  He also relies on what “presidents [since George Washington] have understood” about their authority.  Yet these are not sources or applications of law; they are self-interested assertions of power.

The piece is thus unconvincing. What Yoo appears to be seeking is a justice who will hunt to overturn precedents rather than abide by them, to be activist not law-abiding, to defer to political assertions of power.  It is an appeal to change the law in line with a particular ideological view of what law ought to be, not uphold law as it is.

The op-ed’s substantive failures are amplified by revealing stylistic flaws. Consider two failed attempts at humor.   Yoo wrote: “Choosing not to study a treatise on presidential administrative policies containing 527 footnotes is an understandable act of self-preservation,” referring unkindly to Prof. Kagan’s most influential work of legal scholarship.    After noting that Kagan’s article referred to proponents of this “unitary executive” theory as “unitarians,” Yoo wrote, gratuitously: “These are not your mother’s non-Trinitarian Christians.”

Besides such flip remarks, the op-ed does not know what to call its object, referring to her (a) ten times as Ms. Kagan, (b) thrice as Elena Kagan, and (c) twice as “a Justice Kagan.”  That may be the Times editors’ fault, but Kagan would be more direct and Dean or General Kagan more respectful.  Finally, the piece has many unnecessary words—including the useless intensifiers “very” and “simply”—rhetorical signifers of weak substantive argumentation.

What Professor Yoo wrote, in substance and style, may be in line with a vision held by the inner highest ranks of the Bush administration and retained by far-right activists. To quote Jeffrey Toobin (from The Nine, paperback p. 316), their agenda is as follows:

“Reverse Roe. Expand executive power. Speed executions. Welcome religion into the public sphere. Return the Constitution from its exile since the New Deal.”  (Emphasis added.)

As a former Republican alienated by such creeping extremism of recent years, in civic discourse and Supreme Court politicization efforts, I haven’t bought into this agenda. Arguments like the one Professor Yoo put forth in yesterday’s Times do not incline me to change my mind.  I come away with the hope that Dean Kagan, if she serves on the Court, will strengthen the Court’s constitutional integrity against political usurpation and polarization.

Photo Credits:  Prof. Yoo, U. Cal. (Berkeley); Dean Kagan, Harvard U.

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8 Responses

  1. curious says:

    I hope this doesn’t come off as snarky, but what purpose are the photo credits here intended to serve? I see this frequently among bloggers, so this is not intended to single out Prof. Cunningham.

    Is it meant as a polite acknowledgement of the photographer? If so, giving credit to Harvard and Berkeley is unlikely to brighten the days of the respective institutional photogs. Or is this phenomenon a case of widespread magical thinking about copyright law?

  2. Vladimir says:

    Call me crazy, but I read Yoo’s op-ed as intended to insure Kagan’s confirmation. It seems to me that Yoo is saying, in effect, “she’s with the mainstream — as I’ll demonstrate by showing how far her thinking is from mine; therefore, those who think she’s Cheney-lite are just plain wrong.” To be sure, it’s couched in opposition to her views, but John is too clever to think he’s going to kill her candidacy by showing how far the gulf is between the two of them. What else could he be up to?

  3. I’m not sure what your criticism of Mr. Yoo is all about; is he misreading her article? If so, then she is probably more in line with his viewpoint and he is silly to criticize her. If he is correct, though, and his description of her views is, in fact, the never-quite-defined mainstream, then I would think you and yours should be salivating at getting her before the committee and TV cameras to so expound. Why, it practically screams for softball questions:
    “Dean/General/Kagan, can you please explain to these neanderthals on the right why, when the Constitution reads “The executive Power shall be vested in a President of the United States of America”, it really means “some of the executive power shall be vested” …contrary to what that boob Justice Scalia claims”

    He obviously doesn’t agree with what he perceives her views to be on executive power so he wants her questioned. That’s all you need to take from this. He knows his viewpoint isn’t all that popular among certain legals – hell, he teaches at Berkeley – but I also think he feels that dragging these views out from the faculty lounges and into plain sight will be more beneficial to his side. I would hope you disagree and would therefore encourage her to enlighten the rest of us, confident that it would make the unitary executive proponents amongst us out to be morons.

    Hey, maybe in preparation she could re-create that same team of scholars that put together those masterful (0 for 8 ) arguments against the Solomon Amendment.

    …and how about adding to your list of useless intensifiers, the tiresome “far-right”.

  4. Lawrence Cunningham says:

    Curious: Not snarky at all. My answer would be: I wrote the post and take credit (and blame) for it, but someone else took the pictures and get credit for that. When I know the name of the photographer, I mention it.

    Vladmir: that sounds plausible.

    Maryland: I’m not sure I’m the person your comment aims at. I write for myself (I don’t know what “you and yours” means); I don’t “salivate” over anything of the sort you reference; I don’t refer to people as “Neanderthals” or to Justice Scalia as a “boob”; and I have no interest in classifying proponents of the unitary executive theory as “morons;” and I’ve expressed no view on the Solomon amendment.

    Filtering all that out, I don’t see much in your comment that my original post does not address, except that I agree with you, and with Professor Yoo, that it will be fine for the Senate hearings to discuss the law governing executive power.

  5. Anonymous says:

    While I tend to agree with your analysis of Professor Yoo’s legal arguments, I think your other two primary points – poor jokes and improper title reference – seem to be grasping at straws or attacking Professor Yoo simply to attack him.

    Though you find the jokes in poor taste (or just poorly executed, I can’t quite tell from your post) others are not as disgusted by them and even find them quotable, see Above the Law quote of the day. The naming controversy seems like a non-issue to me. I doubt it was done with any malice or forethought. You could similarly be accused of disrespecting Professor Yoo for failing to grant him the title “Professor.” The different references might be an attempt to create variety in writing – though you disagree with it, it doesn’t seem to me that standard conventions prohibit it.

  6. Managing Board says:

    That may be the Times editors’ fault, but Kagan would be more direct and Dean or General Kagan more respectful.

    Not in the Old Gray Lady! NYT style requires that every surname be preceded by an honorific, normally “Dr.,” “Mr.,” “Mrs.,” or “Ms.” She is not dean of anything today. “General” is reserved for military officers.

    So on second reference, Elena Kagan must be “Ms. Kagan.”