Would the Chief Justice of the United States be welcome to teach a course in constitutional law at the University of Minnesota Law School? Apparently not, if current events at the law school are any indication.
One of the law school’s constitutional law professors will be on leave next spring. The law school therefore invited University of St. Thomas Law School Professor Robert Delahunty to fill in for him in teaching his required first-year constitutional law course. Professor Delahunty teaches constitutional law and international law at the UST Law School, after long service in the Justice Department’s Office of Legal Counsel under three presidents. I have taught as an adjunct professor at the UST Law Schcool for the past three years and got to know Professor Delahunty a little. He is a gentleman with the soul of a scholar and a learned and excellent teacher.
Professor Delahunty is also the coauthor with John Yoo of a now famous 42-page draft memorandum to Department of Defense general counsel Jim Haynes on the applicability (or inapplicabiility) of the Geneva Conventions, international treaties and federal laws to the Taliban and al Qaeda detainees. The memo advised that the Geneva Conventions did not apply to regulate the detention of Taliban or al Qaeda detainees. The purpose of the memorandum was of course to review and summarize applicable law, not to formulate policy.
One point that gets lost — intentionally, by liars who seek to misrepresent and mislead the gullible for their own purposes — is that the Yoo-Delahunty memorandum was a draft memorandum. You can see that it is stamped “DRAFT” on the copy of the memo that is widely available on the Internet. As such, the memo was circulated for interagency review to the relevant agencies of the federal government for comment. One of the agencies promptly leaked it.
The memo is in the nature of a research memorandum. It provided a reading of the applicable law; by itself it had absolutely no force or effect. Comments received from the other federal agencies to which the memo was circulated were in due course incorporated into the final memorandum. The government’s final memorandum on the subject was issued by Assistant Attorney General Jay Bybee on January 22, 2002. Bybee is now a judge on the United States Court of Appeals for the Ninth Circuit.
Professors Yoo and Delahunty appear to have been on the mark in their research. In Hamdan v. Rumsfeld, a unanimous three-judge panel of the D.C. Court of Appeals (including then-D.C. Circuit Judge John Roberts) ruled 3-0, among other things, that the Geneva Conventions did not apply to al Qaeda and its members. In reaching this decision the court was applying settled law.
The decision of the D.C. Circuit was nevertheless reversed by the Supreme Court in a 5-3 decision from which Chief Justice Roberts recused himself because of his participation in the circuit court decision under review. The Supreme Court is of course free to ignore, circumvent, avoid or overrule its own prior decisions in any given case. I think it did a little of each in Hamdan.
The appointment of Professor Delahunty to teach the required first-year University of Minnesota Law School course to one section of students next spring has become a cause célèbre among the leftover left on the law school faculty. The University of Minnesota Daily reports the story here and the St. Paul Pioneer Press reports the story here. Nine professors on the law school faculty have written a letter to “members of the University of Minnesota Law School’s community” regretting the decision of the deans to engage Professor Delahunty for the spring 2007 course in constitutional law and imploring them to retract the offer. The letter has been posted in PDF by Inside Higher Ed here.
The letter is a sickening vanity production. It melodramatically announces that it is “a letter we hoped we’d never have to write.” It baldly asserts that the Yoo-Delahunty memo “facilitated the eventual torture of detainees not only in Guantanamo but in Abu Ghraib and elsewhere.” In the obligatory fashion of the lying left and those who regurgiate the party line witbout knowing what they’re talking about, it describes the Yoo-Delahunty memo as a “secret (but later leaked) memo.” It notes that in its Hamdan decision the Supreme Court rejected the conclusions of the memo. It fails to note that three justices thought otherwise. It also fails to note that the Chief Justice of the United States thought otherwise as a member of the D.C. Circuit Court of Appeals on the panel that decided the opinion reversed by the Supreme Court in Hamdan.
The professors’ letter esentially rests on the Supreme Court’s decision in Hamdan; it does not even attempt to show how the research advice rendered by Professors Yoo and Delahunty was erroneous when given, let alone beyond the bounds of civil discourse. The letter goes on to take some cheap shots at the University of Minnesota Law School’s star teacher of constitutional law — Michael Paulsen — who coincidentally opined before the Supreme Court decided Hamdan that the Yoo-Delahunty memo represented a correct reading of the law.
You can almost see the nine university professors preeening in front of the mirror as they explain the necessity of publicizing their letter:
It is standard practice at the Law School for Dean(s) to hire such temporary replacesments [as Professor Delahunty]. We do not wish to challenge this authority. But persons outside the law faculty may not be aware of that practice and may think that members of the faculty are responsible for the extremely ill-advised and not well considered decision to retain Robert Delahunty as a temporary podium-fill professor. Accordingly, we believe it is necessary for us to dissociate ourselves from the decision of the Co-Deans of the University of Minnesota Law School to hire Robert Delahunty to teach Constitutional Law for the Spring term of 2007.
Lest there be any misunderstanding, of course.
Professor David Bernstein elaborates on several of the points I make above and makes other good points in his excellent post at the Volokh Conspiracy. Thanks to readers Nathan Brennan, Ryan Dowhower and Spencer Seamans for bringing this matter to our attention.
To discuss this post, go here.
JOHN adds: A question: As law professors, these people are constantly asking their students, in tests, papers and class discussion, to summarize the state of the law on a particular issue. When they grade their students, do they reward them for accurately setting forth the law as it is, based on legislative and judicial authorities? Or do they reward them for describing the law as they wish it were? For the sake of the University of Minnesota Law School, I certainly hope it’s the former. But, of course, that describes exactly what Professor Delahunty did.
UPDATE: One of Professor Delahunty’s students writes from the University of St. Thomas Law School: “Professor Delahunty has been one of the finest mentors I have ever had.”