"We're Going to Take a Commercial Break, and I'm Going to Put My Head in Ice Water"
Open thread for discussion on Professor JY's appearance on the Daily Show With John Stewart:
I guess my thoughts on this have been replayed over and over and over . . . With respect to tonight, I thought JY was commendably calm, collected, and intelligent. So was Stewart -- I really appreciated that at those times it became clear that Stewart wasn't following, he stopped and listened.
Anyway, without getting further into it, I'll limit this post to a few memorable quotes (not necessarily from the JY segment), links to the online interviews when they are available, and open the forum for comments.
I guess my thoughts on this have been replayed over and over and over . . . With respect to tonight, I thought JY was commendably calm, collected, and intelligent. So was Stewart -- I really appreciated that at those times it became clear that Stewart wasn't following, he stopped and listened.
Anyway, without getting further into it, I'll limit this post to a few memorable quotes (not necessarily from the JY segment), links to the online interviews when they are available, and open the forum for comments.
- [After Stewart asked how it felt to be infamous] Well, the same thing must happen to you. As soon as they heard I was coming on here, my students started emailing me, asking how tall you are, how much you weigh, etc.
- We're going to take a commercial break, and I'm going to put my head in ice water.
- That is an established fact of conventional thought.
- It's the republicans who will keep you warm and safe, to enjoy the hell-scape the world will become.
- I hope that someday in the future, you'll get a chance to, uh, write humane, um, briefs.
- [About Rod Blagojevich]: His poor, poor publicity team. This last year must have been so hard!
Labels: Rabid Liberals, Yoo-Hoo
posted by Patrick Bageant at 11:24 PM
31 Comments:
This is really tagged rabid liberals and not rabid conservatives?
Yes. Really.
Can we have a thread re: how $40K in fees should buy you more than a spot on the waiting list for evidence, crim pro and con law? Wth?!
James, not many students here would call Yoo "rabid." Many students, however, would call Yoo protesters "rabid."
McWho's right. They don't come much more composed than Yoo. A better label would be "nutjob conservative", or "wingnut".
Why is it that when it comes to this issue the left is just as virulent and unreasonable as the right?
Sigh.
It's a indication of how high the stakes are.
Yoo is on the right of the right, at least on the issue of executive authority... there isn't much debate about this. If you're on this fringe, or "wing", "wingnut" is a perfect term. There also isn't much debate about this.
While I don't think this should be tagged rabid conservatives, rabid liberals isn't all that appropriate anyway. John Stewart was being pretty rational.
I would characterize many of Yoo's defenders (in terms of what he advocated for on behalf of Bush, not his position on the faculty) as rabid.
That is an established fact of conventional thought.
You know how it is, Patrick. If it's not in the New Yorker or the New York Times, it's not true.
Most amazing was his reference to the situation on the show, and how it was "like Berkeley" (i.e., critical.)
Actually, the student sentiment at Boalt seems to be in favor of Yoo, e.g. praising his performance (I didn't see it that way ...)
Much of what he said was patently absurd: a President has the authority to do, but won't do just anything, because the President is "restrained" and "reasonable" ... Of course, who decides the bounds? Why go thru the ruse of the statute analysis if the President isn't bound by it? No answer.
Tthe Supreme Court and Congress can "check" the President, but then, the President cannot be second-guessed. He did get that straight.
His whole analysis was shallow, self-contradictory and risible, really.
Notice, Professor Yoo would not say he is a good lawyer.
Right.
First, let me say that I am personally undecided about the torture memos. I took Yoo's class and found him to be well thought out and reasonable as a Professor, and from what I've seen of Jon Stewart, I like the political inclination of the show (if not necessarily his personal style).
A few thoughts on the extended version interview:
I found it irritating that Jon Stewart often talked over Professor Yoo. There were times when I wished that he would listen more. I guess that on a quasi-news/comedy show, that may be too much to ask. People want sound bites, not long discussions about Constitutional law.
I thought it was smart that Professor Yoo kept referencing the book. Realizing that he would not get a chance to fully explain his position, he kept going back to the book in hopes that people would read it.
Jon Stewart is pretty inarticulate at times. Lots of "um"s and awkward pauses. I don't know if this was intentional (a tool to cut off the speaker before his next question is formed) but it certainly is surprising. Even his delivery on jokes can feel stilted and unnatural.
After Professor Yoo says "I don't find it frustrating to talk to you" Stewart gives him a longer monologue.
I liked the "demonization" bit at the end, but it was so awkwardly delivered.
John Yoo is an excellent spokesperson for conservatives. "You're the most charming torture memo author I've ever met." The public demands a Con Law faceoff between him and Goodwin Liu. The understated, charming, and well-mannered intellectual clash would tear a hole in the fabric of existence and make every 1L on Liu's ConLaw waitlist jizz in his or her pants.
1:22,
I don't agree with the memos. But your analysis of the interview was patently one sided. Or maybe you watched the edit interview and not the unedited one.
As I understand it, in Y*o's view of the Constitution, the President's powers ebb and flow with circumstances. The CHECK on these powers is Congress's power of the purse. If Congress decided that the president is decidedly exceeding the authority they want to cede to him, they can simply cut him off.
While I don't think that this view is necessarily correct, it does seem to reflect the actual state of things. The executive generally does what it deems necessary until Congress decides it has gone too far.
The statutory analysis issue seemed so trivial that it did not even deserve an answer. Y*o says that the President may abrogate a treaty if he deems necessary. He also says that in this case the President wanted to know how far he could go without violating the treaty. However, just because the President can ignore a treaty does not mean he may want to. If he can accomplish whatever dark aims he has without abrogating a treaty, so much the better.
If you approach this issue as a purely legal problem, then Y*o has a plausible argument for his position.
But the more damning argument is simply one of ethics. It may (or may not) be just plain immoral to attempt to justify certain forms of interrogation (torture?) in any way. This can be true regardless of what a Constitution, a treaty, or a statute says.
i am undecided about the morality or lack thereof of the torture memos.
i like stewart usually, but think he was unnecessarily rude and obnoxious towards yoo. stewart asks question -> yoo tries to answer -> when it isn't what stewart wants, he interrupts with smart-ass remark or asks another question without letting yoo finish or even elaborate.
i like yoo usually, and his appearance here serves to reaffirm his calm, cool, and contained confidence. i'm also undecided about the legality of the memos, but am personally a huge fan of yoo as a person and professor.
I look forward to seeing what percentage of the arguments you write in briefs you all actually believe once you begin practicing. Good luck telling a partner, "I'm sorry, I cannot write a legal argument supporting that position. I am morally opposed to it."
Yoo made a point of this in the interview in the NY Times, and I believe he alluded to it in the interview with Stewart (I have not seen the unedited version). Ultimately, he was writing a legal argument advocating for the position of his client.
This argument has been fleshed out time and again on N&B. I was always half way on it until I began working and got my first assignment with which I did not agree. Bottom line: when you are working for someone else, you generally lack the privilege of choosing your assignments, particularly as a low level employee. Yes, someone will cite to the ethical rules that you are required to turn down "unethical" work and not make "unethical" arguments. Last time I checked, making an argument that is supported by numerous works of legal scholarship, including a relatively large group of constitutional scholars, does not transgress into the realm of unethical for lack of legal support. I question how else the memo could be considered unethical in the legal sense (that's not a rhetorical question).
SMA--I think you make a pretty big error in your recent post, because you conflate legal advocacy and legal analysis. The role of an OLC lawyer is not to advocate a position given to him/her by the client (POTUS). It's to provide a neutral analysis of standing law. If JY was simply providing a legal gloss for already-made policy decisions, that would be an ethical violation.
That being said, I don't think that was the case. (And JY's continued defense of these positions, despite the obvious consequences, strongly suggests that his analysis was sincere.) And you are absolutely right that SOMEONE has to answer difficult legal questions, and, as an OLC lawyer, that person was JY. I think too many people want to be able to critize without having to actually say what they would do in the identical position. (Or acknowledge real-world trade-offs--such as the strong likelihood of __ amount of of civilian casualties if AQ detainees were treated according to either Geneva Convention or UC criminal law standards.)
I love how people are upset that Stewart was a "smart ass."
Have you not watched the Daily Show? This is pretty par for the course and I'm sure Yoo expected it.
There's a weird tendency on this blog for people to defend Yoo, almost irrationally. I don't think this blog has a particular conservative slant or anything (there's a pretty good spread of viewpoints here)... instead I think some of the posters take it upon themselves to defend "one of their own". I doubt the defense of Yoo would be nearly as fierce if he taught at Hastings or elsewhere. This is probably more or less obvious, since this is a blog about Boalt and Boalt-related things.
I think the other motivating factor for the defense of Yoo here is the amount of shit he's had to take. Most of the people attacking his character and calling for his head don't fully (or even partially) grasp the underlying issues. Part of this stems from Boalt being in Berkeley, the other part from the general complexities of the issues involved. I didn't even completely appreciate the distinction between the moral and legal aspects of Yoo's actions at first.
I don't think anything else can really explain why people would attack Stewart for being interruptive and smartassish. After all, that's his job. Part of it is because for a long time he has had to pick up the slack of news journalists who fail to ask questions that should be asked. Part of it is because he hosts a 30 minute comedy show, and quick sound bites that get laughs lead to higher ratings. The fact is, Stewart has made fools of many, many politicians and public figures by simply asking questions everyone was thinking anyway. The fact that he failed to do so with John Yoo hardly tarnishes his record. I also don't think it proves that Yoo was correct in his viewpoints. The only real takeaway here is that a comedy show host couldn't trip up a very charming and intelligent lawyer in 20 minutes. I was also hoping that Stewart would trip up Yoo, because I just haven't seen anyone do it yet, and Stewart seemed the best fit for the job.
THIS is why we need a Liu/Yoo debate.
Carbolic -
You assume that Yoo was the one deciding what the analysis, position, or whatever you want to call it, would be. My point is that Yoo was not in a position to make that determination. Rather, his boss (I think it was Bybee, no?) likely came to him one day and said, "This is what we need to say. Write some legal support for it."
This is no different than what happens every day in Big Law. How frequently do you think low level associates make decisions on case strategy?
Or like a judge may say to an elbow clerk, "Give me a reason to find for the plaintiff?"
I'm not sure I'm convinced. Obviously the "senior lawyer" exception wouldn't apply to memos written under JY's own name. For memos written under JB's name--I still think a subordinate DOJ lawyer would still have to present the (inchoate) state of the law as he/she sees it. Now, the supervising attorney can revise as he/she sees fit and remove all of the junior's qualifying language. I doubt that happened here. And still--that would be an issue for the senior, not junior, lawyer.
SMA, Carbolic has it right. The proper analogy would be a senior partner or client asking you "what's the law in area y" and you writing a memo that ignores anything contrary to your preconceived point of you. The OLC has a statutory duty to get the law right because its opinions bind the executive branch. This is precisely why it can't game the result. Were there political pressures to push the envelope? Yeah, just as any lawyer has pressure to push the envelope for her client. But then you have to live with the result of your conduct when the arguments are found to be frivolous.
Toney, you sound like Mrs. Lovejoy--"won't somebody please think of the children." You're just as part of this blog as anyone else. If you want to know why I think the protesters are misguided (to put it mildly) you're welcome to ask. If you want to know why I disagree with Prof. Yoo's viewpoints, you're welcome to ask. If you want my amazing Con Law Structural Issues outline, you're welcome to ask. But please don't bloviate about your speculations regarding my motivations.
I'm chiming in late here, but I thought Yoo did himself a great disservice by arguing more than he had to. Early in the interview, he defended waterboarding, etc, as necessary means of gathering intelligence during wartime--the same bullshit Cheney has been saying for years--when all he really had to argue was that the President has the constitutional authority to waterboard, and it's not up to John Yoo to say whether or not he should. In fact, I think Yoo could have come off as more reasonable by saying he disagreed with waterboarding and would not personally have done it, but the constitution grants the Pres leeway to make those mistakes.
By backing the President's rationale rather than merely his authority, Yoo came off looking more like a political player than an unbiased expert.
My take on the interview:
1. Despite all the "I'm not sure if I'm getting this straight...whaaat?" sentences, Stewart understood all of JY's points (e.g., the memos focused on a nebulous area between torture and ordinary criminal law; AQ represented a new paradigm; the President may act decisively in response to wartime threats).
2. Stewart partially engaged JY's legal arguments, but was ultimately interested in an ethics/policy discussion. As lawyers/law students, we're used to detailed legal arguments that are distinct from policy/ethics debates. I think that's why a few people were annoyed by the interview--Stewart wasn't really interested in JY's answers.
3. The Daily Show strikes a funny line between being even-handed and opinionated. Stewart's closing remarks about not demonizing people was touching. At the same time, he partly contributed to that demonization. ("You're the most charming torture memo writer I know!")* Is Stewart refreshingly honest, or is pandering a bit to his cable audience?
* I still reserve anyone's rights to say nearly anything as long as it's funny.
Dan, didn't JY say just that when he explained he is a con law scholar, not an expert on tactics?
Interesting comment on the interview: http://www.theatlanticwire.com/opinions/view/opinion/Happy-Hour-Vid-Jon-Stewart-Admits-He-Screwed-Up-with-Yoo-2178
Stewart failed to accomplish what he was trying to do, but he's hardly the first. I've heard podcasts of professors debating Yoo and the same phenomenon happens: Yoo's challenger gets frustrated and starts talking faster and faster, while Yoo maintains a leisurely pace and reasonable tone.
is there any way we can actually possibly have a LIU v. YOO debate here at boalt.
make it happen, BHSA!
they had some "great debates' before.
http://www.law.berkeley.edu/alumni/enewsletter/2006/index_February06.html#SupremeCourt
don't get too excited about the chance that yoo would get crushed. people will disagree with him, and some will despise his arguments, but it's the same old song: he doesn't get whipped during these debates and any opponents who set their heart on doing that or seeing that, get frustrated.
I don't understand precisely what we'd have them debate. Are we talking the merits of 'enhanced interrogation techniques' or the definition of torture? If that's the case, is it a good idea to put one person who has now devoted a good amount of his professional life to discussing the issue and defending his views on it against one who hasn't (particularly when those calling for the debate seem to want to see the latter crush the former)?
who cares! it'd just be entertaining watching sort of what some epitomize as good and evil here.
I think 4:14's attitude explains why liberals are always so disappointed by interactions with JY. In real life, he's not a caricature, and neither are his arguments.
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