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Crossposted at The Grievance Project.
John Yoo interrupts his defense of torture and (presumably) himself, to weigh in on the nomination of Judge Sonia Sotomayor, concluding with this:
But conservatives should not be pleased simply because Sotomayor is not a threat to the conservative revolution in constitutional law begun under the Reagan administration. Conservatives should defend the Supreme Court as a place where cases are decided by a faithful application of the Constitution, not personal politics, backgrounds, and feelings. Republican senators will have to conduct thorough questioning in the confirmation hearings to make sure that she will not be a results-oriented voter, voting her emotions and politics rather than the law. One worrying sign is Sotomayor’s vote to uphold the affirmative action program in New Haven, CT, where the city threw out a written test for firefighter promotions when it did not pass the right number of blacks and Hispanics. Senators should ask her whether her vote in that case, which is under challenge right now in the Supreme Court (where I signed an amicus brief for the Claremont Center on Constitutional Jurisprudence), was the product of her “empathy” rather than the correct reading of the Constitution. [My emphasis.]
Since comments aren’t permitted on his post, I emailed Mr. Yoo this afternoon asking for a response to the following questions:
- What are the criteria you use to determine if some is faithfully applying the Constitution?
- What are the criteria you use to determine if someone is a "results-oriented voter?" Why do you use the term "vote" at all? Is this the term you normally use to refer to decisions rendered by appellate judges? Other than the case you cite, are there additional bases of which you’re aware to indicate that she will be a "results-oriented voter?"
- When considering your advice, should Senators consider whether your authorship of the OLC ‘torture’ memoranda was the product of some emotion of yours rather than the correct reading of the Constitution? If so, which emotion of yours should they consider?
Don’t hold your breath but I’ll post any reply I receive from Mr. Yoo.
Crossposted at The Grievance Project.
H/t Josh Marshall at TalkingPointsMemo.
13 Comments
screw yoo.. he’s a political hack masquerading as a “lawyer” …
He is a political hack. However, he’s not just masquerading as a lawyer but he is, unfortunately, a licensed attorney – at least (hopefully) for now.
Yoo would certainly be an expert on writing “results-oriented” legal opinions — you could pretty much call them tailored.
We knew he had no sense of humility. Now we know he has no sense of irony either.
In response to skdadl:
He has no sense of what’s right and what’s wrong. This is, fundamentally, his core problem.
Add Alberto Gonzales to the list of Those-who-shouldn’t-be-listened-to-ever-again with this statement:
So, Judge Gonzales felt obliged by his oath of office to honor the intent of the legislature but Attorney General Gonzales felt no such constraint to honor the intent of the legislature which had banned torture both by statute and by ratification of various treaties.
here’s the thing I’ve seen;
very few judges apply the law as they read it, they apply the law as they see it, two differant things
I remember me and my dad watching a particular judge in a traffic case, the defendant was clearly telling the truth, the police officer clearly lying, the defendant had witnesses and experts as well
the judge dismissed the experts, accepted the police man as the expert even though he demonstrated no expertise, the case was awarded for the people
the defendant suffered a heart attack on the way out of the court room.
as far as I can tell, judges apply law as they see it not as they read it
I’ve had my share of time in court and this is what I’ve seen in all but a very few cases
A German Historical Viewpoint
John Yoo is part of a quasi-constitutional far right which is developing in the United States. His explicit use of the expression ‘conservative revolution’, whose historic locus is post-World War I Germany, is quite illustrative.
‘Personal opinion’ and ‘empathy’ are not the same thing, but the stoic politics in which the terms appear is the important place to consider the issue, as they are largely ‘post-classical’ in the sense of democratic constitutions. Martha Nussbaum’s work, such as the ‘Fragility of Goodness’, is an interesting place to begin.
Since the historic transformation of the Republican Party, following Lee Atwater, into a party combining the interests of big capital and racial intolerance, the ’southern strategy’, it looks as if it will marginalize itself on the free-market far right. A ’social’ or ‘compassionate’ approach to conservative politics such as that of the German post-World War II politician, Konrad Adenauer, is probably the only coherent strategy. Pushing Latina voters to the margins is not helpful if that is the strategy. Three cheers for John Yoo interest in crushing right-wing compassion. The German conservative revolutionaries really didn’t like Adenauer.
I’m not sure there’s a difference between how a judge sees the law and how a judge reads the law, but you’re forcing me to try to remember things from the course on jurisprudence that was required in my first year of law school. From the haze, I recall that some judges, on one end of the spectrum, make their decisions then interpret the law so that it fits their decisions (which type of judge you seem to be referencing) and that some judges, at the other end of the spectrum, apply the law to the facts to reach a decision in such a manner that they attempt to use the law as a flowchart of sorts that will lead them to the ‘proper’ decision.
I’ve seen both types of judges in my practice but I think that most judges fall somewhere between the two extremes and utilize a combination of decision-making methodologies. A personal example: In the instances in which I’ve been a hearing officer (a quasi-judicial position I held in which I conducted hearings, received evidence and rendered decisions based on the law and the evidence presented to me at the hearing), I generally follow the ‘flow chart’ method to lead me to a decision. However, I have also made a decision for which I then had to look for support in the law.
I’m not sure one method is inherently better than another as long as, in the end, the facts and the law support the decision made.
I counsel clients that, in court, we deal only with testimony, not with truth. Whether something is true or not, i.e., whether it is a fact or not, is left to the the trier of fact which will either be a jury or the judge. It’s this – and only this – trier of fact that gets to determine who is telling the truth. (For me, this was often a harder decision to make than it was to determine the proper application of the law after I ‘determined’ what the facts are.) Whatever the reasons in the example you witnessed, the trier of fact’s decision often has past experiences with the witnesses, attorneys, defendants, etc., that affect the decision. Decisions are sometimes just poorly made and occasionally are made for other, improper reasons. Since humans are involved in the process, human weaknesses will at times improperly influence decisions. Hence, the appeals courts.
This brought back a bad memory. I once represented a defendant who suffered a fatal heart attack while we were waiting to go into the judge’s chambers for a hearing. To make matters worse, I wasn’t aware that my client’s spouse, who had come from out of state with my client, was outside the courthouse waiting at their rental car for my client’s return. It wasn’t until the courthouse was closing – when my client’s spouse went searching for my client – that the spouse learned of my client’s heart attack. I didn’t learn of this until several days later when I spoke again with the judge’s office.
Thanks for the perspective.
If there’s one person I want to see behind bars – for the rest of his life – it is this man!
Yeah. Republican-appointed judges like Scalia, Rehnquist, O’Connor, Thomas, and Kennedy would never, ever let their personal politics, backgrounds, feelings, and obligation to those who put them on the bench to affect their decisions. They’d never, ever allow their desire to retire influence their decision in oh, a critical election case.
Sorry – I apologise; I can’t help it. It’s the progressive in me! I just have to post this recent Colbert section on John Yoo:
http://www.colbertnation.com/t…..-about-it-
I have nowhere near the ability of Colbert to express our shared indignation at Yoo & his ilk. My only suggestion (warning!) to anyone clicking on the link is: don’t watch this when drinking or eating something. It’s far too funny to keep from laughing uproariously and having a full mouth when doing so can be embarrassing!
TheraP: My list contains more than one person who should face serious prison time.
BargainCountertenor: Exactly. It’s only a problem when Republican-appointed judges like Justice Souter don’t use their personal politics, backgrounds, feelings and obligation to those who put them on the bench to the benefit of those who put them in charge.
iceman15: I always welcome a Stephen Colbert link, especially since last night’s program was a rerun.