Over at The Atlantic, Max Fisher draws some conclusions from the Kagan confirmation, and I think he’s pulled together a pretty good summation of what folks in Washington are thinking—but that doesn’t mean they’re right.
Fisher argues that since 37 votes were cast against Kagan, and since the GOP could pick up Senate seats in November, Obama will be forced to nominate a “moderate.”
Not so fast.
The fact that 37 Senators voted against Elena Kagan is a sign that Senate Republicans will fight anyone who gets nominated to the high court, no matter how unobjectionable (a fact that’s borne out by their disgraceful treatment of lower court nominees.) If Republicans are willing to attack a Supreme Court nominee endorsed by Jack Goldsmith, Miguel Estrada, Ken Starr and Ted Olson, they’re not going to let anyone off without a food fight.
Will more Republicans mean a bigger fight next time? Maybe, but there’s nothing to be done about it. President Obama should consider himself free to nominate whoever he wants: if we’re going to fight, it might as well be a fight worth having.
Via The San Francisco Chronicle, it seems that the latest filing by John Yoo's lawyer— in a case brought by a prisoner who was illegally detained and tortured based on Yoo’s advice—has all the hallmarks of one of Yoo’s own briefs: it’s slipshod, morally questionable and utterly unsupported by the facts.
Take this assertion, for instance:
[Miguel Estrada, Yoo’s lawyer] also cited the Justice Department's report last week concluding that Yoo committed no professional misconduct in his memos.
As the Chronicle points out, Estrada failed to mention that that the Office of Professional Responsibility concluded that Yoo (along with now-Federal Judge Jay Bybee) demonstrated “professional misconduct” and ignored legal precedents. Even the memo prepared by Associate Deputy Attorney General David Margolis, who ultimately attributed Yoo’s and Bybee’s actions to “poor judgment,” is “far from a vindication for John C. Yoo and Jay S. Bybee's shamefully narrow interpretations of laws against torture” according to the Los Angeles Times. Margolis, while ruling out the harshest punishment for Yoo, says that debate over whether “Yoo intentionally or recklessly provided misleading advice to his client” is a “close question.” Not exactly a ringing endorsement.
In fact, anyone who has actually read the report or Margolis’s memo knows that they paint a damning picture of Yoo’s actions. Estrada’s claim that they exonerate Yoo is wishful thinking at best.
Next up is Estrada’s shot at guidelines drawn by a group of OLC alumni, headed by Dawn Johnsen, to help the Office move forward after the torture memos were made public.
In Friday's filing, Yoo's lawyer, Miguel Estrada, said Johnsen's guidelines reflect "only partisan disagreement with the policies of the previous administration."
How Estrada can deliver such an allegation with a straight face is difficult to fathom. The idea that only partisans could oppose Yoo’s torture memos simply isn’t borne out by the facts. First off, Republican Lindsey Graham didn’t seem to be a big fan of Yoo’s opinions, saying:
The guidance that was provided during this period of time, I think will go down in history as some of the most irresponsible and short-sighted legal analysis ever provided to our nation's military and intelligence communities.
Even putting aside Graham’s criticism of Yoo’s memos, Johnsen’s statement of principles was endorsed by Attorney General Alberto Gonzales, Deputy Attorney General Timothy Flanigan, and Acting OLC head Steven Bradbury in testimony to Congress.
But perhaps most galling is Estrada’s claim that Yoo remains a "respected legal scholar."
Honorifics aside, most “respected legal scholars” aren’t being investigated for war crimes by our allies. Most don’t find their colleagues debating about whether or not ones tenure should be revoked. And, notwithstanding the Margolis memorandum, the Office of Professional Responsibility doesn’t usually recommend that its findings of misconduct be referred to the state bar disciplinary authorities.
Estrada’s defense of Yoo is logically indefensible and divorced from even a passing resemblance to reality. In short, it’s a brief only John Yoo could love.