John Yoo: “It Sucks to Have Judges Protecting the Constitution”
John Yoo complains that the Supreme Court’s strong rulings last term are an "unprecedented" grab for power.
Slowly but surely, the justices have expanded their power to make many of our society’s fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court’s dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.
[snip]
Some might prefer that judges still make these decisions because they hear cases in a formal, rational setting and issue long opinions explaining their reasons. Nonetheless, the courts are far from ideal as policymakers: They have great difficulty trading off competing values in these sensitive areas; they are insulated from the political process; and their only access to information comes to them through the narrow lens of a lawsuit.
When the federal judiciary decides national policy on these issues, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.
Not surprisingly, Yoo’s argument gets particularly laughable when he complains about Boumediene.
The decisions announced this summer only reaffirm the court’s power. In Boumediene v. Bush, five justices – the wandering Justice Anthony Kennedy joined by a liberal bloc of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer – took the unprecedented step of striking down a wartime law enacted by Congress and the president.
U.S. history has never seen what the Boumediene majority now demands: Alien enemy prisoners at war with U.S. forces and detained outside the United States have the same right as criminal suspects to challenge their capture in civilian courts. Hundreds of years of practice, and the decided views of the political branches, to which the Constitution gives all of the powers over war, were tossed overboard.
After all, this was a guy who routinely ignored laws passed by Congress–including laws passed during the Vietnam war–to rationalize things like domestic surveillance and torture. But he has found one law–the Military Commissions Act–that he believes should be protected above all else.
Regardless of whether it violates the Constitution or not.
Which is really the argument Yoo is making: how dare the Supreme Court ensure that the political branches don’t violate the Constitution. It makes it really difficult, you know, to change the law at will if you’re actually bound by the Constitution.
Yoo claims this is unprecedented–I guess because it adds to his histrionics–but what he’s really asking is for permission for the "political branches" to legislate away the Constitution. Not that I’m surprised by that. Me, I’m still more surprised that fairly mainstream publications still consider Yoo’s opinion or judgment to be worth squat.
Seems like he has missed the whole concept of the judicial branch of government, but, as you say, no surprise.
Poor, poor John Yoo.
Will somebody PLEASEwater board this bastard to see if he STILLfeels this way after!
Forgive me. I am now back to realty.
Why anybody in any setting still listens to John Yoo, I cannot understand. Unles it is for comic relief.
Why Boalt Hall is letting him drench his students in this crazy disinformation, also is beyond understanding.
As those kids graduate and go to interview, prospective emplyers are going to ask if they studied Con Law with Yoo. If the answer is yes, and the job opening involves Con Law, does anyone think that newly minted law grad is gonna get the job?
What a handicap to burden their students with.
Yeah, LHP! If you hadn’t mentioned Boalt Hall, I was about to quote EW,
and add, “not to mention a certain university in California.”
I find it somewhat curious that Yoo dismisses the Court’s Constitutional duty to determine what the law is, as “policy making.” This guy is a lawyer?!?!?
I think Yoo needs a remedial course in civics, with a passing grade required before he is allowed to teach again.
Bob in HI
Can anyone who reads this blog sit through his BS sessions/class and believe they have even a remedial understanding of Con Law?
Btw, I think Yoo’s reference to “the wandering Justice Anthony Kennedy” is probably worth about 8 more favorable votes out of Kennedy next year, just to spite Yoo for being inappropriately disrespectful.
Justice Kennedy’s views vary depending on facts and circumstances. His is an expression, right-centrist to me, of tempering law with justice, without which there is no law or justice.
That offends Mr. Yoo’s Confucian orthodoxy, which requires respect for one’s master because he’s one master. It requires acceptance of the law as whatever the master says it is, and rejection of whatever disturbs the social order decreed by that master. In Mr. Yoo’s emotive vision, which is at odds with his training in American constitutional law, power confers legitimacy and right. To Mr. Yoo, the notion that one could acquire power by being right — in the sense of being correct, or in the judicial sense of correctly deciding a specific case based on its unique facts — is an invitation to chaos, which can only be a prelude to the destruction of the social order. Something its mandarins are there to prevent at all costs.
Despite the intelligence, or at least phenomenal memory suggested by his academic success, and notwithstanding his considerable ambition, Mr. Yoo is a follower who has no purpose without his master.
I hope the hell the petition I have pending before the Supreme Court is one of those Justice Kennedy punishes Yoo for.
The contempt Yoo shows Kennedy is a hallmark of the comity of the modern conservative movement, made popular by George Bush and Dick “Fuck You” Cheney.
Everything Yoo now says must be seen through a single narrow lens: He wants to stay out of jail for war crimes.
John Yoo, the world’s biggest morality whore, would dare to lecture the Supreme Court on moral decisions? How could his keyboard not have been struck by lightning when he composed that phrase?
Talk about expanding power to make political and moral decisions!
Bush, Yoo, Cheney, et al have greatly expanded their power, making sweeping political and moral decisions:
no habeus
Rendition, state torture, secret prisons!
Falsified war, Illegal surveillance, Mercenaries!
Faith
Feith– based initiatives!These guys should be in jail, or hanged. Why does the media give them page space?
what he’s really asking is for permission for the “political branches” to legislate away the Constitution
For citizens of other democracies, Yoo is also saying that he does not believe that there are principles and structures fundamental to democracy (yes, voting is necessary, but not sufficient), deeply grounded in historical experience, which is why we have our constitutions, bills, charters, and declarations, all of them encoding pretty much the same short list that our courts are bound to defend and uphold.
Our ruling cabal has been hinting more and more at Yoo’s kind of logic too. I cannot tell you how grateful many of us would be to see it checked firmly and publicly on your side of the border.
This phrase bothered me:
Let’s recast this phrase to reflect the actual situation:
Slowly but surely, the EXECUTIVE has expanded its power to make many of our society’s fundamental political and moral decisions, based solely on its arrogant belief that it’s pursuing the correct, higher purpose.
Oh yes. And this phrase:
More accurately stated:
When the EXECUTIVE decides national policy on any issue and expands its power unchecked, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.
This crap spewed by Yoo is about as ironic as Bush telling Putin to respect Georgia’s sovereignty or telling China to do a better job respecting human rights.
Do these guys ever listen to themselves?
Well said.
The courts aren’t stopping ANY religious groups from providing education to inner-city children or providing welfare services! The courts are interpreting the establishment clause of the First Amendment and interpreting (pretty broadly I might add) how much government funding the state can give a church and still not be ‘establishing’ the church. John Yoo is a weenie.
2/5 – you guys are ruff on Yoo. After all, he went to confusedaboutthelaw dot com They shopped around for him and got him a great deal on the answers he wanted. No long books, no big words, no moral, ethical and Constitutional ramifications.
I particularly like Yoo’s complaint that the courts are “insulated from the political process” At least he fixed that for the DOJ and Federal Prosecutors.
The MSM will never tire of waving their hands and pouting: “Oh no Yoo Dinh” and nothing will ever come of any of this. Bodies will stay buried and the assist. cover upper will get touted as being heroes by both sides, bc they boldly tsked where no tsk had gone before, and the DOj will take to bed with it more direct victims of its actions than all the victims of all their “suspects” and yet somehow claim to be the “good guys” Everyone will buy off and sign off. I doubt Bush will even need to worry about pardons.
You’d think
Give John a break! I hear he’s going to take his act to the new Gong Show and just needs to polish his delivery.
For the most part, Yoo’s article struck me as the typical authoritarian view that Marbury v. Madison was wrongly decided. The only shocking thing to me was this phrase:
Thousands? Really? In the context, ‘thousands’ is clearly intended rhetorically as a big number. This is a really astoundingly elitist view of history. Even if he’s talking about legal history, it’s bizarre. Just two paragraphs earlier, he said:
So, those hundreds, if not thousands of laws represent the views of thousands of citizens and leaders?
Wow. I can’t imagine how this stuff passes without notice.
Laughable, indeed, to see this constitutional law professor at Berkeley contorting himself to fit into that smallest of the Russian dolls. His rant merely replicates old GOP talking points about mean, old, activist judges taking the people’s decisions out of their hands. Pure electoral pablum, with teeth-deadening amounts of sugar and not enough protein or fat. The only pair of hands Mr. Yoo wants on those decisions is his lord and master’s, sitting in the vice president’s office.
Isn’t Yoo making an admission against interest? That he ignores the US Supreme Court in his OLC opinions?
I guess ‘admission against interest’ assumes that Yoo will someday have to answer for his misdeeds in a court of law… Here’s hoping.
No, he claims it’s “unprecedented” because he’s a bad lawyer. In the spirit of the Internet, he’s a legal troll. Not only a troll, but a blowhard as well, similar to those I’m sure you’ve had discussions/arguments with who hold on to a flawed premise long since disproven.
I’m sure the failure to include Bush v. Gore in the ensuing examples was a mere oversight.
You mean as opposed to an informal and irrational setting that results in long opinions no one outside the White House is permitted to read?
In the John Yoo tradition, your DOJ (the one that has no evidence it will reveal on the anthrax mailings–the one that was hijacked by Karl Rove who talks everywhere but under oath with a transcript at HJC) has filed two briefs in the John Yoo tradition.
New move to keep control on detainees
The operative term is “activist”.
20- I think you give Yoo too much credit on the ideology front. He isn’t’ authoritarian if the authority in office is Democratic. He had some very out there articles arguing about all kinds of limits that should exist vis a vis Clinton. Like Scalia’s loss of interest in State rights when Bush v. Gore came down the pike, Yoo loses interest in Executive power when the Executive isn’t a Republican, unless the non-Republican Executive is going to use that power to continue to cover up murders and torture and disappearances/kidnaps/human trafficking and make nice with the Republican interests.
I wonder if Yoo’s parents had been supporters of Rhee while in S. Korea? In the end, court rulings notwithstanding (as, for example, with the rulings involving the EPA which have been laughed at) Yoo, from a practical standpoint, has been right so far and will continue to be right I’m afraid. Bush and the Bush DOJ could care less about the rulings or the law, even now. The Democrats in Congress set up the passage of the MCA – amnesty. And the DTA – amnesty. And the revisions to FISA – amnesty. And no independent counsel. No real torture, kidnap, etc. investigations. No MI investigations at all. Impeachment off the table, pardons for all – – – as a practical matter, Yoo won. And the Democrats helped insure that and will continue to do so.
Mary – Just for Yoo. New book by Jonathan Mahler details Bush Admin refusing good info from Hamdan to torture him.
I know there are far more learned people on this site then me. Most certainly you, EW and many others. Please understand that my question is from myself and a whole lot of others of the unwashed masses.
An “opportunistic authoritarian” perhaps. And I agree that voting in more and better Democrats is the only way to impress upon incumbents that they have a short-term public employment contract, not a license to print money or excuse their friends, but not their neighbors, from liability.
The expected transition to a Democratic White House will be interesting. Just the designing and paying for a new, competent IT system — to be managed by competent staff for its intended public records purpose — will be worth watching. Not to mention changes in substance, if any.
As for Mr. Bush, what exactly does he intend to do when Pootie Put tells him to Cheney himself, that Bushy has his Georgia and Pootie’s gonna git hisself one too? Pout and whine and ask Big Dick to rid him of this meddlesome priest?
That’s a feature, not a bug.
Soufan has to be incredibly disgusted with Bushco. He was at the center of a lot of intersecting roads in Wright’s “The Looming Towers” including having the CIA refuse to provide info to him despite specific requests – info that might well have prevented 9/11.
E.g., http://www.slate.com/id/2146654/ and http://www.newyorker.com/archi…..lineonly01
There could be a whole book written around Soufan. The people who had the strings that could be tied together were cut out of the picture for what seems to be no other purpose than to allow the outlaw presidency to engage in depravity without witnesses. No one seems to have given much of a damn about actually finding out anything helpful – more about covering up their own bloody tracks.
A fellow Kentuckian plans to produce a movie on Hamdan based on Mahler’s book.
Another story as good as the “Plame Affair”.
John Yoo is to Constitutional law, as
A. A fish is to a bicycle
B. A Bush is to a pretzel
C. A McCain is to his first wife
D. All of the above
BMAZ,
Why do you think the Adm. Choose that tact?
I’ll be honest, I have no idea. Maybe a combination of no patience for traditional methods of information gathering with no real desire for answers, only chaos. I dunno.
Two attorney professors of law history have a site which recently published comments by Louis Fisher, the historian at Library of Congress. One of the profs, Elizabeth Hillman, observed gross historical errors and fictions in Yoo’s two new peer reviewed articles which feign to construct a presidential right to disregard habeas rather volubly and whimsically, essentially a despotic construct for his chronicling of the executive branch of US government. Fisher’s analysis is available at the site which Hillman coauthors. It is true Hillman teaches at the SF Hastings campus, rather than Boalt. Fisher’s deconstruction is a marvel, and really exhibits the reverse engineering which is Yoo’s brand of revisionism a la courtier. For people interested in the law history website, its other principal is Mary Dudziak, a superb modern historian at USC, with some obligations at Princeton, as well; say, /OT, maybe she knows the best time to miss traffic on the route to Frederick, MD. /endOT
I think what Yoo does is a lot like what Scalia attempted to do dissenting in his infamous footnote at p116 of the slip opinion in Hamdan, where he examines a presidential signing statment for an interpretation of the retroactivity provision of congress’ partial habeas-stripping; Graham-Kyl had submitted an amicus brief in that case 05-184, similarly depicting congress’ intent as the precise opposite of what it actually was with respect to retroactivity, weakly depending upon an equally as fictitious entry into the congressional record which the senators foisted upon the historians, pretending their colloquy had occurred in a live session in congress whereas the dialog exclusively occurred on paper and had been appended to the record as a senatorial courtesy at their request. The latter is an ancient tale; one of its demystifiers is Dean. At argument, Scalia fails to push Katyal, v.p30 of the argument, now archived evidently only at ABA, if one is to accept Scotus’ guidance; I believe my copy originated at Lyle Denniston’s digs at scotusblogDotCom; but come slip opinion time, Scalia’s clerks have garnished his objections with a thick revisionist porridge of demihistory which he attempts to pass off as verisimilar rather standard fare for him and his clerks’ writings, more gossamer jousting on behalf of the deities of neoconry.
That’s the first time I’ve seen “reverse engineering” used as a metaphor for other things the neocons have done, and I like it. Am I right in thinking that its first use was in the Pentagon project to reverse engineer SERE training? That’s the only context I’ve seen it in before, but it has possibilities.
34 – I think “opportunistic” combined with almost anything else (from authoritarian to ideologist) will fit Yoo like it came from an Austrian tailor. It would be nice if they would get some smart and committed people (or give the existing smart and committed people the support and tasking) to work on not only a competent IT system for the WH, but decent information access systems for FBI, local police, etc. But I’m just underenthused that much good will come of any of it. Still, fingers crossed and prayers duly prayed.
37 – thank you for that legalhistory link and Fisher’s deconstruction.
36 – Not that many of my fellow Kentuckians live in villas in Italy, but Clooney seems to be one of the good guys notwithstanding his completely unaccountable failure to appreciate that Lexington is God’s Favorite Acreage. Hopefully, somewhere in the Hamdan story, he can find a way to work in a little something about fellow fellow Kentuckian Sean Baker.
http://www.cbsnews.com/stories…..2953.shtml
If not work him in, maybe hire him as a consultant or do something for him.
I’m wondering who Cheney’s driver is …
Scooter.
Hasn’t he been disbarred yet, and had his teaching credentials revoked?
/snark
Those crazy Courts with that silly precedent thing. Maybe Yoo should set up an appeal where he can get the Supremes to overturn Madison v. Marbury.
Did Yoo actually go to law school? Doesn’t sound like it.
Ironically, he graduated with highest honors from Harvard College and, I believe, high honors from Yale Law. Even God can’t hit a one iron, I guess.
One of Yoo’s citees today writes to reinforce part of Yoo and refute a corresponding section of Fisher, at Balkin. One of the subtleties in Fisher’s review was his reference to Winthrop’s recounting of how the military sees martial law’s limits, illustrating some of the skullduggery politics which were Jackson’s hallmark. Maybe Sara is around and has some to offer on these matters. The Winthrop document was published in the 1890s, and is 89MB. It takes a certain sensibility to appreciate its understated grandeur, like a manicured parade ground. There are other helpful sources on the topics Yoo is hyperbolizing. Maybe I will locate some of those in a later discussion.
@37, sorry to reverse the engines a moment, eases landing sometimes for those of us with the app called proseTorrent. I learned the expression in an industry group some of whose members aspired to decipher proprietary silicon called ROM, read-only-memory. History interpretation is about as dicey. But Fisher and Hillman lay waste to Yoo’s fictitious history.
Oh, I was complimenting you, not complaining. I like the way you write, although I’m sure I’m missing a lot. What I don’t get, I just kind of grok, eh?
OK the direction of this conversation is somewhat scary. You do realize that you are saying that an unelected judge should have the ability to veto the choices of the people through their elected representatives. Are you really thinking about this seriously or just being sucked in by “pop” politics? An unelected judge, if given this magnitude of authority to “protect” the constitution can just as easily violate it. The problem is that there is little possibility to remove a renegade judge. Elected officials, if they go wrong, can be kicked out by the people in the next election. It seems a whole lot safer to me to leave the decision making power in the hands of elected politicians because, even if they make bad choices, there is still a way out. There is an interesting article about the growing power of the judiciary and the history of this phenomenon at this page about the 9th Amendment to the Constitution – http://www.revolutionary-war-a…..dment.html
Of course, on the other hand, you are advocating that legally and Constitutionally untrained hacks, motivated by personal and partisan greed, fed by an ignorant and reactionary electorate, drenched in conflicting moneyed interests, should be allowed to interpret and eviscerate the Constitution. Now THAT is a scary direction. A remarkably uninformed one in terms of constitutional law and history too.
That’s what the enforcement of Constitutional Law over Statute is about. It prevents a short-term political movement of one generation from overthrowing long-held valuable Law without giving it a bit more thought.
One judge can’t change anything. It takes a Federal appeals judge AND probably the Supreme Court’s majority to do that.
They’re not elected because the founders of this country knew from experience that elected judges are pulled to the wishes of the electorate (as are senators and representatives) rather than to just uphold Law.
An appeals court can overturn a lower court’s decision and the Supreme Court can overrule a Statute, but it doesn’t make policy.
That the Court can violate the Constitution is a fact and a worrisome one at that. See the States Rights issue involved in Bush v. Gore 2000 and it will give you a headache.
Elected officials, if they go wrong, can create enormous problems and then be kicked out of office — only to leave us with nobody to blame or punish. It’s not a “way out” it shows the hopelessness of really holding “Washington” to account for it’s bad behaviors.
Think of it this way for a moment: the judges still performing badly remind us of the politicians who inflicted them on us and that’s a reminder to not elect people like that again; the politicians who give us bad law may be gone and who remembers them? Do you remember the Republicans who gave us the Enron loophole or who labeled catsup as a vegetable or who snuck legislation into a huge bill late at night without telling anyone?
Remembering who did what is part of knowing who to NOT vote for now.
I have said this from the beginning, yoo MUST be disbarred so nothing he says will be considered as having any kind of weight what so ever
and whenever anyone involes yoo’s “opinions” or even his name the progressive has to laugh out loud like whoever is referancing yoo is referancing mickey mouse
we must discredit yoo and embarrass anyone who gives him any play
I see that blithe refrain constantly from so many. It is a waste of oxygen. As disgusting and despicable as Yoo and his opinions are, there are no real grounds for disbarment. We have had that discussion before, yet here we are again, going over the same tired ground.
bmaz, I am not a lawyer but never the less, a lawyer I think would be disbarred if they rendered a legal opinion that told someone it is fine to go out and commit murder
I would think the same if a lawyer redered a similar opinion telling me it’s fine to go and rob your house
many believe torture is worse then murder, everyone believes torutre is worse then robbing your house
I disagree with you entirely, yoo us eminantly disbarrable
and again, I am not a lawyer but if your opinion is correct then you can tell me to go out and steal, use the cover of your barr association and you will be exempt from charges and disbarrment
I cannot believe that is the case
Apparently the idea that there is a branch of government actually responsible for ensuring that the Rule Of Law is actually applied has escaped the feeble intellect that John Yoo possesses.
Congress never declared war after 9/11. So, he’s wrong to say we’re at war — apparently for Dubya it’s just a little sadistic fun and profiteering.
So, before the “war” what was the procedure when someone in a foreign country tried to kill a U.S. soldier? Would they have been captured and remanded to Gitmo without trial or a hearing or a lawyer?
As I see it Yoo and Bush are arguing they have the right to pick up anyone anywhere, including a foreign head of state, and hold them and perhaps interrogate them forever, without a lawyer, a hearing or a trial or release. Even now they’re saying that if one of these enemy combatants is found not guilty by the court that they might not release them!
Yoo just doesn’t like the Law! Strange he’s found his way into teaching it.
Both Yoo and Fisher to participate in a panel at conference Boalt September 2008, even Mehlman gets a cameo address. Yoo’s concept of the judiciary in the draft transcript June 2008 by Richardson in Esquire conveyed the same sense that he opines judges should have less weight in the three branch balance in the US system of government.