Sunday, May 16, 2010

John Yoo's weird column about Elena Kagan

I'd say that John Yoo's Inquirer column about Elena Kagan is fairly standard talking points stuff -- hates the military, loves her ivory tower, mean to Clarence Thomas -- except for one kind of weird point that he makes. He's critical of Kagan's now-famous decision to support efforts to keep military recruiters off the Harvard Law campus because of Don't Ask Don't Tell. Which is fine, except...
I happen to agree that the president and Congress should allow gays to serve in the military. But Kagan announced her policy while the United States was fighting in Afghanistan and Iraq. And she defied a federal law - the Solomon Amendment - that ordered schools to provide equal access to the military for campus recruitment or risk losing federal funding.
Remember: John Yoo once suggested the president has the power to suspend even the First Amendment under his war powers, so it's no surprise that he criticizes Kagan for sharing his opinions -- but acting on those opinions during wartime. Which leads us to Yoo's summing up of his critique:
But it was more than just striking a pose. Kagan declared that excluding gays from the military was "a profound wrong - a moral injustice of the first order." Her argument, which lost 8-0 before the Supreme Court, shows she was an activist before she was nominated to be a judge.
Wait. What? "She was an activist before she was nominated to be a judge?" That's clearly meant to be a slam, but what the heck's wrong with that? I get why Republicans say they hate "activist" judges; are we now to believe there's something wrong with activist private citizens? And if so, what would Yoo say about Tea Parties or abortion protesters?

There's only two ways Yoo's argument makes any sense here:

* That he's so loyal to the GOP that he's gotta find a way to criticize Democrats even when they share his positions.

* That he honestly believes the duty of an American citizen -- at least in wartime -- is to submit without challenge to the decisions of government, even if those decisions are (by Yoo's own lights) wrong. In this universe, then, there is no right "to petition for redress of grievances," no check-and-balance provided by the judicial branch. The time-honored tradition of American dissent -- and of nonviolent resistance to laws deemed by citizens to be morally wrong -- is thus "activist," and thus potentially disqualifying when it comes to judicial nominations.

You might think Kagan was wrong to criticize the Don't Ask Don't Tell policy. You might think she was wrong for barring recruiters from Harvard campus. Fine. But Yoo goes a step further: He broadly criticizes Elena Kagan for acting on her beliefs at all because they conflicted with the laws and policies of the government. It's an argument that makes sense coming from torture advocate John Yoo, but that doesn't make it any less at odds with the American democratic tradition.

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