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The Fight Over the Harold Koh Nomination: A Field Guide
« on: 2009-04-14 18:49:13 » |
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The Opinionator - Tobin Harshaw and Chris Suellentrop
April 14, 2009, 4:16 pm
The Fight Over the Harold Koh Nomination: A Field Guide
By Eric Etheridge
On March 24, the Obama administration nominated Harold Koh to be the State Department legal adviser, the agency’s top lawyer. So far, Koh’s nomination has generated cursory coverage in the papers. But online is another story, not unlike the blog debate over the nomination of Chas Freeman to head the National Intelligence Council. Freeman ultimately withdrew his name.
In the earlier fight, the primary issue was Israel and the Middle East; in the case of Koh, the issue is “transnational law” and its impact on United States jurisprudence. The online players are different this time around than in Freeman, but the dynamics are similar. Twenty-one days into the nomination, here’s the Opinionator’s guide to the back-and-forth so far:
The nominee: Harold Koh has taught at Yale Law since 1985 and been its dean since 2004. He served in the government twice before, as the Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001) and in the Office of Legal Counsel at Justice (1983-85).
What’s causing all the problem?
Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government . . .
Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.
Principle online antagonist: The words above come from Ed Whelan, the head of the the Ethics and Public Policy Center, who writes for National Review. Whelan, who served in the Office of Legal Counsel in Justice from 2001 to 2004, has written a series of nine posts so far at his NR blog, bench memos, arguing the case against Koh, supplementing that coverage with additional posts to their group blog, the Corner.
This is not Whelan’s first go-round over Koh; last fall, when news reports suggested Koh might be a Supreme Court nominee, Whelan posted a two-part assessment, concluding, “Hardly the makings of a quality Supreme Court justice.”
You can read Whelan’s introductory post this time around here; links to the other posts in the series are at the bottom of this post.
Early salvo: Although the Koh debate has played out almost completely online, it got a start in the pages of New York Post. In a March 30 op-ed, “Obama’s Most Perilous Legal Pick“, former Bush administration speechwriter Meghan Clyne attributed these views to Koh:
Judges should interpret the Constitution according to other nations’ legal “norms.” Sharia law could apply to disputes in US courts. The United States constitutes an “axis of disobedience” along with North Korea and Saddam-era Iraq.
Rebuttals: Elie Mystal at Above the Law responded the same day: “If you don’t know anything about Dean Koh, international law, or where babies come from, Clyne makes him sound pretty scary.”
The next day at Opino Juris, Chris Borgen weighed in, disputing Clyne’s various assertions about Koh’s views and concluding:
Neither Koh, nor anyone else I know of says that foreign norms “dictate” anything in the US. Foreign law, as Justice Kennedy explained, can be used as persuasive evidence or, as Justice Breyer put it in a speech at the ASIL, there is “enormous value in any discipline of trying to learn from the similar experience of others.” That’s it. Nothing nefarious. No black helicopters or anything. Justices cite to law review articles, social science studies, and even Gilbert and Sullivan. Sometimes, they may note the experiences of judges in other countries and learn from them. Citing to foreign law is not allowing the world to dictate to the US; it is simple intellectual honesty.
More recently, other bloggers have been taking on Whelan’s arguments, including Charles J. Brown at Undiplomatic and at Obsidian Wings, Publius, who cited recent comments from Justice Ginsburg: “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law. . . . Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?
Crossover Endorsment I: On April 3, former Bush Solicitor General (and the Bush v. Gore winning lawyer) Ted Olsen endorsed Koh in an interview with Greg Sargent at the Plum Line. “The President and the Secretary of State are entitled to have who they want as their legal adviser,” Olson said. “I have the greatest respect for Harold Koh. He’s a brilliant scholar and a man of great integrity.”
Rebuttal: Andy McCarthy in National Review said that vouching for Koh’s scholarship and integrity was not the point:
This is an argument about policy, not personality, honesty, or qualifications. The mainstream media did not vet President Obama. His transnational progressive positions were not scrutinized — and even though the president is even now on an important trip, crafting new global regulatory arrangements with other heads of state, we still have not gotten anything approximating an examination of Obama’s views. Bluntly, the public has been better informed about Gov. Sarah Palin’s handling of the Alaska State Police than about their President’s fondness for international redistribution of wealth, international treaties, and the transfer of national sovereignty to transnational bureaucracies and tribunals.
Crossover Endorsement II: In a speech at Yale last week, Clinton nemesis and Pepperdine law dean Kenneth Starr said the Senate should confirm Koh.
Bigger picture conspiracy theory: On April 5, Scott Horton reported that Senate Republicans are holding the Koh nomination hostage (as well of that of Dawn Johnson), threatening a filibuster in an effort to keep the Obama administration from releasing any “torture memos from the Bush era.” Four new memos were scheduled for release on April 2; as yet, they have not been made public.
What’s the status of the nomination?At the end of last week, Jeffrey Toobin wrote online at the New Yorker this might “turn out to be the first real confirmation fight in the new Administration.”
The point is that this issue ["transnationalism"] is politically toxic, and a real danger to Koh’s confirmation, if it’s mishandled. The issue taps into deep feelings of nationalism, mostly but not only among conservatives. Citizens of the European Union countries regard the power of that central authority with great concern, but that’s nothing compared to the skepticism here about the United Nations and other international organizations. It might be easy to assume, given Koh’s manifest qualifications for the job, that he will cruise to confirmation. He still may. But this issue is politically radioactive, and he and his sponsors ought to approach it with great caution.
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Re:The Fight Over the Harold Koh Nomination: A Field Guide
« Reply #1 on: 2009-04-14 23:13:22 » |
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Article VI, paragraph II of the constitution of the Disunited Mistakes:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
[ Hermit : Amusing that the so called "strict constitutionalists" - and not infrequently the US Supreme Court - tends to ignore the indubitable fact that this wording means that treaties entered - which includes the Grand Charter of the United Nations - carry the same weight as the US Constitution itself. Which means that arguments against an international perspective are in fact arguments against the Constitution of the United States. ]
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