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Yoo Tortures Logic Again


Apparently having run out of human beings, the Philadelphia Inquirer has given a column to John Yoo.   And, if you’re a glass-one-twelfth-full kind of person, you could acknowledge that it’s much better to see Yoo lightly re-writing Manuel Miranda blast faxes than applying his specious arguments to defending arbitrary detention and torture in an official government capacity.    Still, you’d think the Inky would want more for its money than this kind of rote hackery:

Over the years, Senate Democrats have destroyed the confirmation process by turning it away from qualifications to a guessing game over how court nominees might vote on hot-button issues such as abortion, the death penalty, and racial quotas. They began the degradation of the advise and consent role with the 1987 rejection of Judge Robert Bork, who would have been one of the most qualified justices in the history of the Supreme Court, and the outrageous effort in 1991 to smear Clarence Thomas (for whom I served as a law clerk). They continued the descent with the filibuster of a slate of excellent picks for the lower courts by George W. Bush, and they reached a new low with their votes against John G. Roberts Jr. and an attempted filibuster against Samuel A. Alito Jr.

Even leaving aside the ridiculous premise that voting against some federal judicial nominees is somehow an exclusively “Democratic” tactic, if I understand Yoo is arguing that it’s wrong for Democrats to 1)even cast votes against judges with certain formal qualifications, and 2)it’s also wrong for Democrats to even vote against nominees who lack these formal credentials if John Yoo can vouch for them. I’d have to say I’m not persuaded.

Now consider this instructive juxtaposition:

Obama’s first Supreme Court nominee made clear that he was a man of the left. Sotomayor’s views put her at odds with most Americans – her view that a “wise Latina” made a better judge than a white man [sic], her easy approval of racial quotas for hiring firefighters, her belief that the Supreme Court should import foreign laws and precedents into its decisions, and her conclusion that the right to bear arms applied only to Washington, D.C., and not the states.

The GOP will earn public support for its actions, but more important it will be returning the Supreme Court to the original meaning and purpose of the Constitution. The framers wanted the federal government to play a limited role in domestic affairs, and an energetic one to protect the national security against unforeseen emergencies and war. They did not establish a government to redistribute income or impose a socialistic vision of regulated markets.

It’s obviously not surprising to see someone who wrote an entire book attempting to defend, directly in the teeth of the text, purpose, and history of the document, that the Constitution was originally understood as conferring virtually unconstrained arbitrary power on the executive branch make the all-too-familiar argument that the Constitution should be originally understood as enacting the 2009 platform of the Texas Republican Party. Still, he can’t help himself: he fatally undermines his arguments about judges following the law by attacking a circuit judge for following clear-cut Supreme Court precedents, and his arguments about “original intent” sit uneasily next to his demand that judges enact policy preferences about affirmative action that quite obviously cannot be justified by examining the original meaning of the 5th and 14th Amendments (something his judicial heroes have not even tried to do.)

Sad. At least some of his previous attempts to defend the indefensible had a certain creativity to them.

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