Washington Post Columnist
Wednesday, April 16, 2008 1:00 PM
Washington Post opinion columnist Ruth Marcus was online Wednesday, April 16 at 1 p.m. ET to discuss her recent
The transcript follows.
Ruth Marcus: Hi everyone. Lots to talk about, as usual.
Savannah, Ga.: Interesting column today. I agree that one of the most important roles of universities is to preserve academic freedom for unpopular ideas, but the popularity of John Yoo's work is beside the point. The main issue is that his work is, as you put it, "shoddy." I thought the point of tenure was to protect academics from shifting whims and politics (both national and personal). Does it also protect them from accountability for the quality of their work?
washingtonpost.com: Why John Yoo Must Stay (Post, April 16)
Ruth Marcus: I think it does, and there is a larger discussion to be had about the pluses and minuses of tenure -- because shoddiness is, to some extent, in the eye of the beholder.
Philadelphia: Your column, like your Mr. Yoo's memo, is filled with faulty rationalizations to justify the unjustifiable. As has been well-documented, Yoo legally could be considered an accessory before the fact to illegal torture of detainees. But putting all that aside -- every single legal expert who has commented on Yoo's memos have said they are filled with faulty legal reasoning, if not complete disregard of constitutional/international law. So I ask you: If your kid was going to law school, would you want John Yoo teaching your kid the law?
Ruth Marcus: Yes (every single legal expert -- or most, in any case), but they have been interestingly split on the question of the consequences for his teaching at Berkeley, and I would say that most of the legal academic types are opposed to canning him. I certainly can think of Constitutional law professors I'd rather have my child take a class from, but on the other hand, law schools are generally such hotbeds of uniform liberal thinking that it is good to have professors who are challenging students from the opposite end of the political spectrum ... so maybe I would want her to hear from Yoo.
Fairfax County, Va.: Ruth -- I always enjoy your online discussions at The Post. Does the term "Real Life Politics" refer to some particular aspect of politics that we should pose questions about in your discussions, or it is just a handy way to give them a different name than the daily morning politics hour on the same Web site? Also, I'm curious how you chose the title "Real Life Politics" (as opposed to what other kind of politics?).
Ruth Marcus: Interesting question. We kind of came up with the title on the spur of the moment, and certainly there's no reason that the title, which is rather arbitrary, should drive the questions. But I hope it reflects the breadth and nature of what I write about, which is a lot of politics but is also grounded in some real life issues.
Princeton, N.J.: Ms. Marcus, I am a retired mathematician who spent most of my career teaching in universities. I have supported many faculty members who favored unpopular causes -- at one time I was the grievance officer for the union, and I helped organize a large protest against the Vietnam War. But are you saying a university should not be allowed to fire someone for simple incompetence?
If I had a colleague who was teaching his students that one could trisect the angle, I would rush to have him removed -- similar to your example of evolution, although the issue is not so clear cut as mathematical proof. Although the case of Professor Yoo is still less clear, surely it would be reasonable for the university to simply conclude he is an incompetent lawyer who must not impart his incompetence to his students.
Ruth Marcus: Well, not knowing anything about trisecting angles (you can't), I think that the point of tenure is supposed to remove allegations of incompetence from the discussion. And certainly, as I said, the law is not an absolute, positive, truly knowable thing like the structure of a chemical compound. I certainly think it would be reasonable to take Yoo's level of scholarship into account if he were being hired de novo, but once tenure is granted it's a whole lot harder.
Boston: Why is it okay for pundits and politicians to regularly attack and demean San Francisco, Boston, New York, Los Angeles and Washington, but terrible if someone says anything at all about small towns?
Ruth Marcus: Maybe because so few of us are from small towns, or at least we all live now in pretty big towns. A flip answer, but what I'm trying to say is: if you are poking fun to some extent at yourself, it's always more acceptable than when you are poking fun at others. And more conservative attacks on elite, liberal San Francisco -- well, that's understandable as a political matter because the folks who do that aren't losing any votes there, whereas, say, Obama is still hunting for (sorry, wrote it before I realized the pun) votes in those places.
Los Angeles: I agree with many points in your article "Why John Yoo Should Stay." Essentially John Yoo's 2003 interrogation memo is a dishonest attempt by Bush administration higher-ups to protect themselves with legal opinions by biased lawyers, rather than Constitutional scholars. Bush shrouded Yoo's fig leaf arguments in secrecy to protect the usual suspects, but left exposed low-hanging fruit running Abu Ghraib and Guantanamo prisons.
Apparently Bushies felt they, like dreadful leaders throughout history, could do anything in the name of National Security without regard to established laws. Bush simply got these biased, hack lawyers to argue that anything he and his inner circle did, no matter how frivolous, was within his Executive Authority.
Although lawyers claim to be truth-seekers, in justifying Bush's torture program, apparently Yoo and other Bushies considered lessons the world learned from the Nuremberg Trials as quaint arguments, and that Bush thinking was -- as ridiculous as it now sounds -- infallible. Other than the tenure argument, isn't it hard to justify public funding supporting such a poor-performing lawyer who had such a negative impact on the nation's war policies and global reputation?
Ruth Marcus: The public-funding argument cuts both ways, I think, because it anchors Yoo's rights in First Amendment claims that he would not have at a private university.
Seattle: While I agree on your broadest points about the academic freedom, the Yoo memo is particularly noxious for lawyers (such as myself) because it clearly and blatantly ignored controlling precedent on the subject. If you were to take aside the politics of the situation, such that it is very unlikely anyone domestically will be tried for war crimes/crimes against humanity, the memo wouldn't hold up to judicial scrutiny; it didn't hold up to public scrutiny. Considering that Yoo has a duty as a licensed attorney to do due diligence, and that this memo showed his failure to uphold that duty, I think that Berkeley has good reason to fire him.
Ruth Marcus: Don't know where that line of reasoning would stop once embarked on.
Alexandria, Va.: Hi Ruth. Just read your article from March called "Hijabs at a Harvard Gym," and as a Muslim Woman in her 30s who does not choose to wear a head scarf (at my co-ed health club or in public) I really think that a lot of people miss the point that the hijab is not a mandatory piece of clothing, it is a choice. Of course there are situations where one should wear the hijab -- in prayer, at a mosque or at a funeral -- but its not mandatory piece of clothing, and it doesn't make you any less of a Muslim if you decide not to wear it. Interesting article!
washingtonpost.com: Hijabs at a Harvard Gym (Post, March 26)
Ruth Marcus: Thanks -- I'm still getting e-mails about it. And it actually ties into today's piece about Yoo, I think, because the broader issue is about ensuring freedom.
Los Angeles: Given that Yoo was on a leave of absence from Boalt Hall when he wrote these memos, why does an "academic freedom" argument for defending his retention there even apply?
Ruth Marcus: His Office of Legal Counsel opinions are intertwined with his scholarship on the subject, which was, of course, known to Berkeley when he was granted tenure. So law professors go off to advise administrations, and they need to worry about how that will affect their tenured position? It seems awfully risky to me, but to repeat what I tried to say in the column, I wrote about this precisely because I do not think it is an easy call.
Philadelphia: Let's cut to the chase and dispense with the ambiguity: Have you taken a comprehensive survey or commissioned one of constitutional law professors that supports your apparent position that "I would say that most of the legal academic types are opposed to canning him"? Can you back up what you are alleging with fact in that regard?
Ruth Marcus: No survey -- my sense is anecdotal, from talking to a few law school deans, from getting a sense of the general response to Edley's memo and from touching base with some of the same people who have been most exercised about Yoo's memo but believe it would be a mistake to fire him.
Fairport, N.Y.: As a tenured professor, I agree completely with you about not firing Yoo. Once you fire one professor for political beliefs, the whole system collapses. But as a UC-Berkeley alum, I also refuse to give money to the place as long as Yoo is there. I think he gives the university a black eye. The mistake lay in giving tenure to him in the first place. Do you think that's reasonable -- that Yoo should not be fired but that the place should feel the pain for having him on board? Also, are you ready to write similar articles about liberals who have been denied employment because of their political beliefs, like Juan Cole, whose offer from Yale was rescinded after neocons began a smear campaign against him?
Ruth Marcus: I think it's fair to ask what Berkeley was doing hiring him. Although in Berkeley's defense, he did come with stellar credentials (Supreme Court clerkship, Senate Judiciary Committee counsel, etc.) and -- I mentioned this earlier -- the overwhelming liberal tilt of law school faculty makes me glad to see law schools reaching out to diversify the political viewpoints on their faculty. Harvard Law School is one that has done this extremely well under Dean Elena Kagan. And, yes, I do not share Yoo's political or legal viewpoint in any way, so I would not have any hesitation in applying the same standard to those criticized from the opposite direction.
Woburn, Mass.: Could I make an observation about bittergate? I think this is less a Barack Obama problem than a Democratic Party problem. For many middle-class voters, what whiffs them about some Democratic values is that people who are well-off make decisions about people who are worse-off, knowing full well they never will have to be involved in such a situation themselves. I, at least, get irritated by people who have money being patronizing. I don't care if you're loaded if you actually make an effort to understand people's daily trials.
Howie Kurtz today (and others) don't see how people who are wealthy (or the $100 million Clintons) can necessarily "pose as folks who are in touch with the great working class." The point isn't that rich people can't "feel" the middle class's pain; much of the time, it's whether someone is self-made, as Obama and the Clintons are, forgets where they came from so to speak, and patronizes people who haven't made it or don't think like they do.
I don't know if it is exemplified by whether you drink Coors Light or chardonnay, but those who definitely aren't in touch with the middle or lower-middle class are the ones who patronize us by saying we "cling" to things like religion or disliking people who are different than we are. "Keepin' it real," so to speak is like pornography -- tough to define, but we know it when we see it. And being patronizing definitely makes it hard to see.
washingtonpost.com: Who Is the Working Class, Anyway? And do the proles really hate the party of the working man? (Slate, April 15)
Ruth Marcus: I think it may be both a Barack Obama problem and a Democratic Party problem.
Seattle: How exactly does aiding and abetting torture not meet the criterion of "clear professional misconduct" or "criminal violations"? While I agree with you that the mere presence of the memo is not grounds for dismissal, the memo along with the recent disclosure of White House officials calling the shots during the CIA's torture sessions do warrant an investigation into whether or not this administration has committed war crimes. Should that lead to a trial and then to conviction, John Yoo should not only loose his position at Berkeley, he should loose his liberty.
Ruth Marcus: Well, if there were a trial and conviction for war crimes, fine, but I'm not sure Berkeley should be conducting such trials of its faculty members.
Arlington, Va.: The Supreme Court has five Roman Catholics, all of whom voted to allow lethal injection in the Kentucky case decided today, even though the Pope and the church are opposed to capital punishment. Strangely, all five (maybe Kennedy is wishy-washy occasionally) appear to be leaning toward saying that abortion is unconstitutional, a position that is supported by the teachings of the Pope and his church. For some reason, I find this inconsistency in supporting the doctrines of the church rather strange.
washingtonpost.com: Supreme Court Upholds Use of Lethal Injection (Post, April 16)
Ruth Marcus: I would be very reluctant to suggest or believe that the justices have their legal views dictated by the tenets of their religion. I think the court majority is composed of a conservative majority that happens to be Catholic, but it is guided by its conservatism and not its religion.
Stafford, Texas: You have confused/conflated breaking the law and espousing an unpopular view. It's preposterous that you equate aiding and abetting in torture with somebody's belief that certain races are inferior, or that war is unjust. No, it is not right that his criminal actions at worst, incompetent application of law at best, be defended for a law professor.
Ruth Marcus: Well ... remind me what court he was convicted in or what crime he was charged with by what legal authority?
Elmwood Park, N.J.: Geez Louise, you might want your son or daughter being taught by all spectrums of responsible legal thought in law school, not just liberals, but are you serious that representing the conservative point of view requires that you hire the likes of John Yoo? This is an insult to legitimate conservative legal scholars, some of whom I had the good fortune to learn from in law school -- men and women who respect the Constitution and the separation of powers. I think it's an easy call -- don't rehire him, and let him pound the pavement for a new job like his buddy Gonzo.
Ruth Marcus: Well, I can imagine my daughters in his law school class giving him a devil of a time!
Grand Rapids, Mich.: I agree with you that John Yoo should not be forced out of Berkeley. I'm more interested in the reaction to him there. Is he shunned by his colleagues? Has the Berkeley Law Review journal condemned him? Furthermore, the minimal public reaction to the Yoo memo is disturbing. Where's the public outcry -- and outrage? Why is this memo not a key issue on the campaign trail? Jon Stewart made this point effectively last night when he brought Jack Goldsmith back to "The Daily Show" for an unusually long discussion about the memo. What's your reaction? Does Stewart have it right?
Ruth Marcus: Don't know what's going on with his colleagues there. I did see Stewart, who I thought did a wonderful job highlighting the subject. As to the public outcry ... I think there's a lot of Bush fatigue, and the memo's existence and conclusions already were known, so perhaps that explains some of it.
Washington: The California Supreme Court will issue a decision on the constitutionality of gay marriage sometime this summer. Do you think the court will overturn the ban on same sex marriage in California? What sort of impact would such a ruling have on the presidential election?
Ruth Marcus: I don't know very much about the current composition of the California Supreme Court. I suspect that a ruling overturning the state ban on same-sex marriage would not be viewed with joy by the Democratic candidate(s), who both oppose same-sex marriage and would worry that it would rile up people for the fall worried about activists courts, liberal judges, etc.
Re: "Overwhelming Tilt": You write "the overwhelming liberal tilt of law school faculty makes me glad to see law schools -- Harvard Law School is one that has done this extremely well under Dean Elena Kagan -- reaching out to diversify the political viewpoints on their faculty." Should the "overwhelming tilt" of biology department faculty in favor accepting evolution make them try to hire creationists? Should the "overwhelming tilt" of physics department faculty in favor of accepting that the universe began at the time of the Big Bang rather than 6,000 years ago make them try to hire Young Earth believers? How far do you think universities need to go in terms of accommodating conservative "thought" when it flies in the face of widely accepted opinion among nonconservatives?
Ruth Marcus: I'm sorry, but these are false analogies. Evolution is demonstrably true, which would make a creationist unqualified as a biology department hire. But there is no demonstrably right and wrong view of the constitution and the law, no matter what the chief justice says about neutral umpires calling balls and strikes. So it is important for law students to be exposed to a range of views about constitutional interpretation and the role of the courts even if it "flies in the face of widely accepted opinion among nonconservatives."
St. Simons Island, Ga.: Ms. Marcus, I enjoy your column and your visits on, among other shows, the Diane Rehm show, but I was surprised this morning when you compared (actually Professor Pearlstein compared but you approved) the biology professor who doesn't believe in evolution with the law school professor who sanctions torture. The former may be confused, but the latter is dangerous. Academic freedom is extremely important; so is freedom of expression, but it doesn't allow screaming fire in a crowded theater. Whether John Yoo should be dismissed from the faculty is a difficult question, but your analogy misses the mark entirely.
Ruth Marcus: Well, here's what I took from the analogy. A biology department can conclude with certainty that evolution is real/true/whatever the right word is. A law faculty cannot conclude with the same certainty that the constitution means that the president can/can't do X or Y. These are calls of judgment and interpretation. Yoo would say that his opinion went not to "sanctioning torture" but to advising the president (incorrectly in my view) about the scope of his powers and the applicability of various statutes to them.
Old Blue in Exile: I'm old enough to recall the Loyalty Oath controversy at Cal in the '50s, where faculty who refused to sign a loyalty oath could be fired. Some faculty had skeletons in their political closets, while others refused to sign on general principles. It was not President Robert Gordon Sproul's finest hour. I think some alumni (there aren't too many faculty left from over half a century ago) have enough institutional memory to be uncomfortable with firing Yoo for his views, even though I personally think they're beyond reprehensible.
Ruth Marcus: A good thing to recall, and something that has been brought up by some of the people commenting in the blogosphere on this.
Philadelphia: To follow-up on the survey question and your answer, isn't that tendency to base such a general opinion on limited sources the same kind of behavior that sunk Judith Miller's reporting on WMD? Don't you think that the public is owed greater background research before you opine on a so-called general opinion and then advance it to support your own?
Ruth Marcus: Wow, compared to Judy Miller. Now that's getting nasty.
The public owed greater background research? This is an online chat, not a news story, and I simply was expressing my sense that most law professor types are leaning in my direction.
Re: Tenure: I'm not familiar with academic nuances, but is tenure supposed to protect professors against being fired for anything? Also, as some high-profile cases like Paul Wolfowitz have shown, was Yoo granted tenure for being a great academic scholar, or for being a former head of the Office of Legal Counsel?
Ruth Marcus: He had tenure before OLC.
San Francisco: "Moral turpitude" requires dismissal of tenured faculty, as do the academic transgressions of mis-citing precedent in footnotes and omitting relevant studies or citations/cases from footnotes. Yoo is clearly guilty of all of these, and has additionally brought disrepute upon the institution that is his employer. A first-year Constitutional Law student would flunk for writing a paper on presidential powers without mentioning Lee or Youngstown. Dean Edley must dismiss him.
Ruth Marcus: If Yoo had plagiarized an OLC opinion, I think I would support firing him, because that goes unmistakably to his fitness as a scholar. (Some people disagree on this hypothetical, by the way.) But I think making judgments about his mis-citing precedent, bringing disrepute, etc., are much less clear and much more dangerous as a, well, precedent, for getting rid of faculty members whose views are noxious.
Lakewood, Colo.: Well, if the University of Colorado has the ability to fire tenured professor Ward Churchill for his views -- although they found something other than that to get him on -- then Berkeley certainly can figure out a way to get rid of John "Torture Advocate" Yoo. I think Yoo should be shamed everywhere he goes.
Ruth Marcus: My understanding of the Churchill case was that they "got" him on specifically academic things like misrepresenting his accomplishments, etc. Maybe like Al Capone on taxes. If professors, left or right, commit academic misconduct, fine, but an awfully dangerous road to go down to find ways to "get" a faculty member.
Minneapolis: Why is elitism perceived to only be a Democratic problem? Is it only because they hide it less well than Republicans? Certainly you can't tell me that many of the folks on the conservative side criticizing Obama (like Oxford-educated George Will or Harvard Ph.D. Bill Kristol) aren't elitists, especially given that many of these same conservatives turned up their noses at Harriet Miers in part because her background was from (gasp!) Southern Methodist Law School.
Ruth Marcus: I think you should ask the first President Bush (message: I care; I'll have a splash of coffee) if elitism is only a Democratic problem. Elitism is a problem for politicians, generally.
Old Blue in Exile, again: "What Berkeley would do if a molecular biology professor 'had written a medical opinion while in government employ disclaiming the truth of evolution,' and continued to dispute the theory of evolution once he resumed teaching." Actually, Cal has kept Peter Duesberg, who claims AIDS is not caused by the HIV virus. Of course, his research funding has been in the dumper for quite a while now.
Ruth Marcus: Interesting. I don't know about that example but will look into it.
Ruth Marcus: Well, just about out of time, and I should have said this at the start: The column we've been (mostly) talking about was actually inspired by a question at the online chat two weeks ago that got me thinking about the issue and watching it ripen into a controversy. So thank you to chatters who helped with what I think we all can agree is a good topic, whether or not you share my conclusions. See you in two weeks.
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