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.