Negative capability, take 3

My friend Michael Paulsen is one of the most prominent of the younger generation of constitutional law scholars. He is McKnight Presidential Professor of Law and Public Policy at the University of Minnesota Law School. Before he started teaching he also worked in the Justice Department’s Office of Legal Counsel during the Bush (41) administration.

John Yoo is of course the former Bush (43) administration deputy assistant attorney general in the Justice Department’s Office of Legal Counsel; he is an expert on national security and related constitutional issues, now teaching at the University of California-Berkeley Boalt Hall law school. Professor Yoo had one of the first negative column on the Miers nomination, his Washington Post column “Opportunity squandered.”

Today Paulsen and Yoo team up for a column in the Los Angeles Times: “Make Miers pass a ‘litmus’ test.” I hope Professor Yoo wasn’t one of the folks White House chief of staff Andrew Card was referring to when he said this weekend that he was “a little surprised” that critics of the Miers nomination “came out of the box so cynically.” As I read it, the argument that Paulsen and Yoo sketch in this column complements John’s unsolicited advice to Ms. Miers here yesterday.

I have friends on both sides of the Miers nomination. Based on my own knowledge of them, I wouldn’t impugn the motives of either side. The argument over the Miers nomination among conservatives appears to me to be in good faith, and I can’t imagine what mileage the White House thinks it gets out of attacking folks who have by and large been its friends. It may be helpful to recall the “old and true maxim” that Lincoln cited in his Temperance Address, “a drop of honey catches more flies than a gallon of gall.”

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