Today Articleman met Ken Starr.  It was a trippy day, and included one of the most fascinating lawyer debates imaginable, so I thought I’d blog about it.  The occasion is the Ninth Circuit Judicial Conference, a very collegial and productive gathering of judges, lawyers, court administrators, and special guests, this year held in Sun Valley, Idaho.  (Culture note one:  on the way into Hailey, Idaho, six miles south, saw a polygamist family decked out in 1890’s finest, stopping to look at a fishing bridge, just like many other carloads of tourists.  It was my third polygamist sighting in the last year.)

While this conference is always a great assemblage of legal luminaries and interesting figures, this year it featured what promised to be, on paper, the most interesting panel at a conference in my career.  This one concerned whether the President was under all circumstances under a duty to comply with laws, and the circumstances under which the President might be permitted not to comply, or to comply but seek to defeat or undermine the law in question.  The panelists?  Clinton Solicitor General Seth Waxman, Clinton Acting Solicitor General Walter Dellinger, former Stanford Law School Dean Kathleen Sullivan, Bush41 Solicitor General and Whitewater Counsel (won’t call him Independent Counsel, just like I won’t call Washington National Airport “Reagan”, it’s just wrong) and torture memo celebrity, frequent Congressional guest, Berkeley law professor John Yoo.  A better set of folks to debate executive power in the context of Bush could not be devised.

Just before the panel was to begin, I learned from someone in the crowd that Yoo was not coming.  Given that Bush43 Solicitor General Paul Clement was on the stage (Clement spoke last night in a general way about the Solicitor General’s office, steering clear of controversy), it was clear that Clement was filling in for Yoo.  This was disappointing:  as Depeche Mode once sang, all I want to do is/see Yoo/don’t you know that it’s true?  Seriously, I did want to see Sullivan and Dellinger debate Yoo earnestly, and would not have that chance.  Further aside:  the introduction of the panel began with the announcement that Professor Yoo could not make it because last night he was “unexpectedly detained for six hours in the Oakland airport.”  This of course drew chuckles from the liberal half of the crowd, imagining one architect of Bush’s Guantanamo policies unreasonably indefinitely detained in a security sweep, and drew glowers from the conservative half, annoyed at our laughter.

Back on point, Yoo’s resume says a lot to me about how he was able to blithely conclude that torture was constitutional and permissible.  If you look at it, he graduated from law school in 1992, clerked for Laurence Silberman on the D.C. Circuit (a stalwart of the hard right and feeder clerk to Scalia and Thomas), took his teaching gig at Berkeley, then clerked for Clarence Thomas, interrupting his teaching to work as counsel to the Senate Judiciary Committee one year later, and worked for the Office of Legal Counsel when he wrote his infamous memoranda.  It’s easy to dismiss this resume as one from the intellectual path of the Reagan conservative revival of the 80s, that spawned “Review” newspapers and strong Federalist Societies on law campuses, with bright ideologues out-righting each other to fight their way to influential positions.  That is a fair assessment of the movement that carried forward Mr. Yoo.

But I see something simpler and very important, though less red meat for most readers.  Mr. Yoo has essentially never really been a lawyer.  He doesn’t represent people.  He’s a terribly bright guy, but he has taken Theory of the Real World at Yale Law School, and now teaches Theory of the Real World at Berkeley.  Now and then he sallies forth, his orthodoxies in tow, but he has not slaved long hours for real people with real problems.  Lawyers who do usually see gray; they understand moral complexity; they live moral complexity.  Mr. Yoo is a Harvard summa, and good for him, they are few; but facility with argument detached from the complexity and context of law practice is an elixir for the bullshit absolutism of Bushism.  It’s not just ideology; it’s ideology without the leavening of the real world, where torture is performed by real people upon real people in real places where real things happen when and after you do it.  That’s my biggest problem with John Yoo, or at least my guess as to how he so easily came to such wrong and bad views. 

After a short introduction by Dellinger, Starr began his piece by arguing for an imperial Presidency, cobbling together bits and pieces from American history, though largely from Lincoln.  Having just read a Lincoln bio, I could not fathom Starr seeming to argue that Lincoln felt his great works, most particularly the Emancipation Proclamation, were literally unconstitutional.  Lincoln agonized over this, and frequently remarked that the Proclamation would otherwise have been unconstitutional, but was constitutional as an exercise of his war powers.  Why Starr found blockading the Confederacy to be a remarkably vigorous exercise of executive power baffled me.  Starr (relying on one quote from 1864) arguing that Lincoln recognized these and other such acts to be literally beyond the bounds of the Constitution is to me either objectively wrong, or at best, a poor, tendentious, and easily refuted reading of Lincoln.

Sullivan argued very persuasively that the President was conceived as an agent of Congress, and not as a principal.  Her parsing of Madison and even Hamilton to this end was most persuasive, and regrettably, there was not time (or perhaps the inclination) of her rightward panelists to engage her there.

Waxman made a compelling point about the litigation surrounding the Hamdan decision about detention of alleged terrorists.  He had read the one hundred or so briefs filed with the Supreme Court in that matter (which Clement argued), and said the most forceful and poignant one to him was one filed by Israeli military justice officials.  Israel, he said, has neither a formal constitution, nor formal guarantees of separation of powers, and yet the Israeli brief showed how a nation besieged by terrorism nonetheless rapidly turns suspected terrorists into a civil system of justice, with access to what amounts to the writ of [ corpus, and guarantees against incarceration without notice and an opportunity to be heard.  This was a great moment, and a great point, although the sad fact is that Israel has much more experience in this area, which does not minimize the great example shown.

Clement stepped around Dellinger’s frontal attack on Bush43 giving the strong executive a bad name, and returned to first principles.  Importantly, all of the panelists agreed with him that all of the actors in the Constitutional system must make Constitutional judgments and do something about them.  As Clement pointed out, Congress relatively often passes unconstitutional statutes (for example, ignoring the Chadha decision that made clear that laws giving only one house of Congresss a veto over Executive action violates the separation of powers).  In such a case, the Executive is not obliged to defend such a law before the Supreme Court nor to obey it, any more than the Executive would obey a law circumscribing the Constitution’s grant of pardon power or the veto power, the examples Clement actually raised.  But of course, those are simple, easy, and even silly cases.

Starr pushed back against the liberals on the panel by pointing to Executive supremism on FDR’s part, in seeking to remove a trade commissioner, and Truman in the steel cases, suggesting without making the point express that what’s good for the liberal goose is fine for the rightist gander.

Yet in the closing minutes of the back and forth, Sullivan brought it home in style.  Her points:  (1) the fact that it is so that the President possesses considerable express power over foreign affairs, and that Congress cannot unmake the Constitution’s express grants of power (in Clement’s easy example) does not support the logical leap that the President possesses extraordinary powers that are plenary (meaning general and unstated in the Constitution) or lumped into an incoherent soup of supposed “inherent” authority; (2) the secrecy of the Executive’s subversion of Congress’ will in domestic wiretapping, in torture, in military courts was designed to elude review; and (3) the President should be true to their Constitutional vision, but not in a secret way that defeats public rejection of tyrants, Congressional review of the Executive (abuses of secret wiretapping), and evades and defeats judicial review.  The Constitution, she concluded (nodding to Justice Kennedy, who is in attendance) abhors these things because it is a compact to preserve the people’s liberty.  You go, Kathleen.  As always, well said.

Afterward, I waited to try out my reactions to Starr’s take on Lincoln on both Sullivan and Starr.  To Sullivan, I said, Lincoln did not believe his actions in war literally unconstitutional, and that, besides, isn’t it awfully ironic and inconsistent to hear the conservatives who abhor legislative history when liberals use it to interpret statutes sanely suddenly cobble together anecdotal bases for an Imperial Presidency not found in the Constitution – not only out of context Lincoln quotes, but quoting John Marshall when he was a Representative touting Executive supremism in foreign affairs?  She seemed to think those fair points (but people are nice at conferences!).

I then waited further and then had a chance to ask Starr whether his belief was that Lincoln viewed his actions as literally unconstitutional.  He allowed that Lincoln subjectively believed them incident to his war powers, which seemed to step back from his argument as I had heard it.  It seems that the conservative justification of Bushism, as a theory of the Executive, is simply that the challenge of terrorism is of equal magnitude and threat as the Civil War itself, or as a fallback that provides less justification for its excesses, at least World War II and the Great Depression.  I think it is not bad faith, in and of itself, to have believed this six years ago.  But it is yesterday’s bad idea, and especially the Civil War comparison is no longer even remotely defensible.  The panel, and the chance to hear from folks I agree with and those with whom I disagree, made me rethink FISA, and even impeachment of Bush Administration folk after Obama (hopefully) begins his Presidency.  A strong President is one thing; an Imperial Presidency like Bush’s is wholly another, and is a discussion and fight well worth having.  Out here in the real world, I think we will win that fight.