A Stitch in Haste

Much cyber-ink is being spilled on the question of John Yoo's continued employment at U.C. Berkeley's law school, Boalt Hall; I first noted it in passing here.

Boalt's dean, meanwhile, issued a lengthy statement on Yoo that was half "Ford pardoning Nixon," half "Pilate washing his hands."

(Not only is Yoo tenured, but Boalt, as part of a public university -- i.e., the government -- is required to extend certain due process rights above and beyond what a tenured professor at a private law school would enjoy.)

Here was my brief foray into the discussion:

The dean fails to address the underlying question: Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Reasonable minds may disagree on that question, but no reasonable person is entitled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

Some commenters misinterpreted that to mean that I advocate stripping Yoo of his legal protections. I of course neither said nor advocated anything of the kind. My point was that the question of "Yoo at Boalt" is really two questions: (1) should he be teaching law school students, and (2) if not, and only if not, then can he be removed? I find Question (1) to be infinitely more important than Question (2), but that is not the same as asserting that Question (2) can be completely ignored.

The most comprehensive response I've seen to Boalt's dean, Chris Edley, comes from Scott Horton:

I agree with Dean Edley on two key points. First, John Yoo is entitled to his legal views, however eccentric, radical and harmful to our democracy. The academic community benefits from the presence of the philosophical outlier. It sharpens debate, and can furnish us with a reminder of the fundamental values which the outlier disparages.

That argument only goes so far. There is a line past which "philosophical outlier" becomes "dangerous nutjob." An advocate of leeching has no business on a medical school faculty, an astrologer has no business on an astrophysics faculty, an alchemist has no business on a chemistry faculty -- their presence does not "sharpen debate," it just wastes resources, embarrasses the institution and achieves the exact opposite of disseminating "knowledge" -- properly defined. (What part of "higher" in "higher education" could possibly extend to leeching or astrology?)

Is Yoo the jurisprudential equivalent of an alchemist? Perhaps reasonable minds can disagree, but that is simply not the same thing as suggesting that the question is irrelevant. It is not.

Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe.

Telling the client what he wants to hear, instead of what he needs to hear, is the fastest way to a "C" in a first-year legal writing class. Deliberately failing to cite contrary authority is the fastest way to an "F." Advocating the commission of a crime -- including a war crime -- is the fastest way to disbarment.

So I ask again: "Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?"

The torture memos were not an episode of The Tudors, and John Yoo was not Cardinal Wolsey -- saying whatever needed to be said, no matter how preposterous, to try to secure Henry VIII his divorce from Catherine of Aragon -- in clear defiance of the law, common sense and common decency. This is not the Sixteenth Century, no matter how desperately the "new Divine Right" advocates (i.e., the "unitary executive" crowd) may wish it were.