Over at Obsidian Wings, commenter Sebastian (not ObWi poster Sebastian Holsclaw, but an entirely different Sebastian) made the following comment, which needs greater spreading-about because it is completely true. So:
Yoo is legal realism taken to its natural endpoint.
He illustrates exactly the worst of what is wrong with the profession in the US, but it isn’t correct to act as if he is an abberation in the profession or if his lawyering style is found only in Republicans. His methodology is exactly the same as Clinton’s in the Michigan issue.
Many lawyers think that the purpose of their craft is to push the law around to get whatever they/their clients want. The average person sees many lawyers as being willing to take perfectly clear concepts, throw dust in the air and choke us to death with the ‘confusion’. Yoo offers a particularly ugly case of a very normal behaviour in the legal profession.
So when you say ‘invented, whole cloth, justifications’ you are talking about what lots of lawyers do. They know that the general understanding of the law says one thing, and they create confusion to get the opposite result. They create the confusion and then point to it and call it ‘unsettled’.
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As a non-lawyer, I thought that was obvious. I suppose if you’re in the profession though, it helps your self esteem and self image if you can tell yourself otherwise.
You will note that that is the same tactic creationists, “intelligent design” liars, antivaxers, HIV and Holocaust and global warming denialists and many other quackery and nonsense purveyors use outside the courtroom.
Anyone with an agenda does something like this, clem. Atheists, libertarians, anarchists, gays, liberals, doctors, salespeople, global warming Al Gore types, Michael Moores, people who want you to do something about AIDS in Africa, etc., etc.
You’ll note one of the very salient point is that the tactic isn’t restricted to one subset. Everyone does it, and it’s frankly disingenous to imply otherwise.