In his May 10 column, reportedly the first in which he was identified as an Inquirer columnist, John Yoo denounced President Obama for citing empathy as a qualification he will seek in a Supreme Court nominee -- after Yoo lavished praise on Justice Clarence Thomas for displaying that very quality.
On May 11, the Philadelphia Daily News' Will Bunch broke the story that its sister paper, The Philadelphia Inquirer, has signed a contract with Bush Justice Department lawyer John Yoo to write a monthly column. Bunch wrote that the Inquirer offered Yoo a columnist spot despite his status as the “conservative legal scholar whose tenure in the Bush administration as a top Justice Department lawyer lies at the root of the period of greatest peril to the U.S. Constitution in modern memory.” If Yoo retains his contract at the Inquirer, add hypocrisy -- demonstrated in Yoo's May 10 column -- to the long list of troubling attributes that nonetheless do not prevent an Inquirer-Yoo relationship.
Among the actions that earned Yoo the condemnation of Bunch and many others while at the Justice Department, in Bunch's words: Yoo “argued for presidential powers far beyond anything either real or implied in the Constitution -- that the commander-in-chief could trample the powers of Congress or a free press in an endless undeclared war, or that the 4th Amendment barring unreasonable search and seizure didn't apply in fighting what Yoo called domestic terrorism.” Further, as Bunch pointed out, Yoo is best “known as the author of the infamous 'torture memos' that in 2002 and 2003 gave ... Bush and Cheney the legal cover to violate the human rights of terrorism suspects at Guantanamo Bay and elsewhere, based on the now mostly ridiculed claim that international and U.S. laws against such torture practices did not apply.”
Bunch quoted editorial page editor Harold Jackson suggesting that at the time the contract was signed, the Inquirer did not fully grasp his record: “Of course, we know more about Mr. Yoo's actions in the Justice Department now than we did at the time we contracted him.” But Jackson defended the Inquirer's decision, saying, among other things, according to Bunch: “Our readers have been able to get directly from Mr. Yoo his thoughts on a number of subjects concerning law and the courts.” But Yoo's May 10 column casts doubt on even that assertion, as Yoo has made inconsistent statements on the issue of judges showing empathy. In the column -- which carried the byline “John Yoo Inquirer Columnist” -- Yoo denounced President Obama's stated intention to nominate a Supreme Court justice who demonstrates the quality of empathy. Specifically, Yoo quoted from Obama's 2007 statement that he would seek judges who possess the “empathy” to “recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African American or gay or disabled or old”:
Obama promises something different. In 2007, candidate Obama declared that his judges would “recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African American or gay or disabled or old.” When he announced Souter's retirement, the president stated he would nominate “someone who understands that justice isn't about some abstract legal theory or footnote in a case book; it is also about how our laws affect the daily realities of people's lives.” Empathy is “an essential ingredient for arriving at just decisions and outcomes.”
Deriding Obama's declaration of empathy as a key quality, Yoo wrote:
Obama ... now proposes to appoint a Great Empathizer who will call balls and strikes with a strike zone that depends on the sex, race, and social and economic background of the players. Nothing could be more damaging to the fairness of the game, or to the idea of a rule of law that is blind to the identity of the parties before it.
But Yoo was not nearly as negative about demonstrations of empathy by a judge when he described the reasoning behind the judicial decisions of Justice Clarence Thomas, for whom Yoo clerked. To the contrary, in a review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins) -- in which Yoo praised Thomas' “unique, powerful intellect” and commitment to “the principle that the Constitution today means what the Framers thought it meant” -- Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas “is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him” and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience:
As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.
In his dissent from the court's approval of the use of race in law-school admissions, he quoted Frederick Douglass: “If the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone!” Justice Thomas observed: “Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
In a 1995 race case, Justice Thomas explained without cavil why he thought the government's use of race was wrong. Racial quotas and preferences run directly against the promise of the Declaration of Independence that all men are created equal. Affirmative action is “racial paternalism” whose “unintended consequences can be as poisonous and pernicious as any other form of discrimination.”
Justice Thomas speaks from personal knowledge when he says: “So-called 'benign' discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence.” He argued that “these programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences.”
By forswearing the role of coalition builder or swing voter -- a position happily occupied by Justice Anthony Kennedy -- Justice Thomas has used his opinions to highlight how the latest social theories sometimes hurt those they are said to help. Because he both respects grass-roots democracy and knows more about poverty than most people do, he dissented vigorously from the court's 1999 decision to strike down a local law prohibiting loitering in an effort to reduce inner-city gang activity. “Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes.”
Justice Thomas is an admirer of the work of Friedrich Hayek and Milton Friedman, both classical liberals. His firsthand experience of poverty, bad schools and crime has led him to favor bottom-up, decentralized solutions for such problems.
He rejects, for example, the massive, judicially run desegregation decrees that have produced school busing and judicially imposed tax hikes. A student of a segregated school himself, Justice Thomas declares that “it never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior.”
To Justice Thomas, the national government's command-and-control policies have failed to make the poorest any better off. Rather, they have simply suppressed innovation in solving the nation's problems. He believes that the Constitution allows not just states and cities, but religious groups, to experiment to provide better education. In a 2002 concurrence supporting the use of school vouchers, Justice Thomas again quoted Frederick Douglass: Education “means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.” Justice Thomas followed with the sad truth: “Today many of our inner-city public schools deny emancipation to urban minority students.”
“While the romanticized ideal of universal public education resonates with the cognoscenti who oppose vouchers,” Justice Thomas wrote, “poor urban families just want the best education for their children, who will certainly need it to function in our high-tech and advanced society.”
These are not the words of an angry justice, or a political justice, but of a human justice. Justice Thomas's personal story shows him to be all too aware of the imperfections in our society and mindful of the limits of the government's ability to solve them. That kind of understanding and humility, and personal courage in the face of incessant unjustified attack, is what most Americans would want on their Supreme Court.