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More on Yoo

By Jack M. Balkin

Sorry if yesterday's post was a bit cryptic. I do not favor going after Professor Yoo's tenure or impeaching anyone. As a practical matter, this won't accomplish anything and serves to distract attention from the more interesting questions raised by the affair of the torture memos. Sorry for the intemperate nature of this observation, but the arguments behind detenuring or impeachment are no better than the arguments for impeaching Reagan (Iran-Contra), Bush I (same), Clinton, Bush II, or the judges that stopped the Schiavo legislation. Cry Impeach! if it makes you feel better, but I prefer Off with their heads!

Does setting aside impeachment/detenuring mean there are no important questions raised by the torture controversy and Yoo's academic career, both pre- and post-torture? Hardly. For one thing, if we step back just a bit from Yoo we might notice that despite the very questionable nature of his analysis, not everyone is running away from him. The sound of condemnation is loud, but in the meantime a lot of unitary wartime executive theorists are keeping their powder dry. We also might reflect on the points made about Yoo in Neal Katyal's New Republic review of Jack Goldsmith's book about the limits of academic creativity. Didn't Yoo's experience in the 1990s academy encourage him to use his new ideas in service of his country? As long as articles appear well-researched and advance bold claims, isn't the author welcomed into the fold? Perhaps Yoo's early articles will turn out on reinspection to be too freewheeling, but that wasn't caught in the academic atmosphere of the 1990s. I'll try to illustrate what I mean if I can dig out some reviews of Yoo's first book.

Final random thought. Remember the expulsion of the crits from the temple in the 1980s? I was reminded of this academic fiasco by Steven Teles's book. At one point, crit ideas were deemed so dangerous/questionable that Derek Bok appointed an outside committee to vet crits up for tenure at Harvard. Crits were accused of undermining the rule of law and thus in need of special scrutiny. There's some sort of massive irony here that I'm just missing for lack of a good night's sleep. Crits a threat? How rich! What fools we were! Who knew that it would be patriotic conservative lawyers who would have us reaching for our casebooks and checking whether Youngstown was still there? Indeed, times have changed.

Full post as published by Balkinization on April 16, 2008 (boomark / email).