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.