Le·gal In·sur·rec·tion

The dispute regarding the appointment of Harold Koh, Dean of Yale Law School, to the top legal position at the State Department is heating up with the announcement that a

coalition of conservative activists is beginning to form around opposition to Harold Koh, President Obama’s nominee to become the legal advisor for the Department of State. In Koh, opponents of “transnational” legal theory have found a test case to prove that international law is a political loser–and a way to preemptively discredit a possible candidate for the Supreme Court.

The application of international standards to domestic legal issues is a fully legitimate point of debate and disagreement. To the extent this opposition is grounded in this issue the debate will be good for the country. To the extent the debate devolves into misleading caricatures of Koh's positions, then no good is served since this is exactly the type of nastiness liberals have visited on conservative nominees for years. (See my prior post, Is Harold Koh Being Borked?)

Conservatives would be best served to challenge Koh on the merits, rather than simply doing unto him as Joe Biden, Ted Kennedy and others did to Robert Bork and a host of other conservative nominees. This is an argument conservatives can win, if the argument is heard and not drowned out by hyperbole. The vast majority of Americans expect that legal principles will be based on domestic precedent, and to the extent drawn from religious or ethical teachings, will be based on the Judeo-Christian tradition.

No doubt, Koh's position has been made more untenable by the political theater accompanying Barack Obama's apology tour of Europe, in which Obama seemed willing to defer to European and Middle Eastern judgments about a host of domestic and international issues. Most famously, Obama's bowing down to the King of Saudi Arabia, and the pathetic belated denials, sharpen the focus.

Obama's loud pronouncements that the United States is not a "Christian Nation" -- and the Newsweek cover proclaiming The End of Christian America -- add fuel to the legal fire over the role of international standards, particularly when those standards are based on Islamic law. While those asserting that Koh is tolerant of Sharia law may be oversimplifying or even distorting Koh's position, we are entitled to a full examination of what role international standards -- including the Sharia law which governs so much of the globe -- properly have.

Just as Koh may be subject to Borking, we must not allow hyperbole in defense of Koh to suppress legitimate inquiry. This argument by Matthew Yglesias is typical of what will be attempts to dismiss challenges to Koh's legal theories as crackpot attacks:

[A]s a secular person who thinks there’s a lot of wisdom in traditional Christian ethical thought it always strikes me as very odd that modern-day manifestations of Christian political activism in the United States so often take the form of advocacy for violence, cruelty, and revenge.

Oddly enough, the person who may have done the most damage to Koh's nomination is the person who nominated him, Barack Obama. When Obama bowed to the King of Saudi Arabia, he many have hit Harold Koh's nomination on the way down.

UPDATE: The issue of Koh's views on "transnational law" and the implications for the U.S. are explored in Ten Questions for Legal Advisor-Nominee Harold Hongju Koh (h/t Instapundit). There are very serious implications for some of Koh's positions, and in his capacity as chief legal adviser to the State Department, he will have substantial influence on the extent to which the U.S. subjects itself to international agreements, laws and standards which may conflict with domestic policy and democratic will.

Two of Koh's law review articles are available at the Volokh Conspiracy. Read them for yourself, particularly the article On American Exceptionalism, in which Koh explains his views on how and under what circumstances the United States should bind itself to international agreements, such as for an international criminal court and the Kyoto Treaty, even in the face of domestic opposition. It is easy to see how these positions could be viewed as a threat to U.S. sovereignty, and Koh needs to be questioned on these issues, including the Ten Questions mentioned in the article linked above.

This highlights the question I asked in a post just after the inauguration, Should Law Professors Really Be Running The Government?

UPDATE No. 2: Obsedian Wings has this "point" which proves my point that it is the people defending Koh who seem to be raising the rhetoric level in order to shut down debate, and thereby create impression that they cannot defend Koh without screaming:

The very act of defending Koh’s writing in the detail that is required makes it seems like there’s actually something to be ashamed of. There’s not.

To be clear, this is an ideologically-charged smear campaign that is relying on pulling quotes out of context and presenting them in inflammatory ways. It’s nativist world-hating at its worst – but it’s a serious threat.

UNDispatch lowers the level of dialogue even more by referring to opposition to Koh as "a conspiracy afoot by the forces of darkness." He then refers to opposition to the UN Convention on the Law of the Sea by an opponent of Koh as proof that such opponents hold "fringe" views. Well, not everyone agrees with the Law of the Sea treaty, which is merely proposed at this point and not law. The reason it is not law is that more than a "fringe" oppose it, and anyway, aren't people allowed to have minority views without being called names?

Jeez, the supporters of freedom of speech don't seem to support much freedom of speech when it comes to Harold Koh.

IntLawGrrls has a defense of Koh's transnationalism theories: "Nothing in Koh’s theory attempts to change either the formal recognition of international law in the U.S. legal system or the way in which it is constituted." If that's the case, then there is nothing to be afraid of from inquiry into his theories. Why is it that so many who defend Koh's right to expouse theories of transnationalism seek to deny others the right to question both the substance of the writings and the implications of those writings when the author is placed in a policy-making position?

And that is the key point missing from the attacks on the alleged attackers. Koh no longer will be a law professor and Dean. He will be in a key policy-making position, and as such has stepped into the political realm much more so than a judicial nominee. As such, his writings, philosophy, and intended policies are all both fair and necessary subjects of inquiry, question, and debate.

It's beginning to sound like Koh's defenders protest too much, and that's too bad, because by all accounts Koh is a decent and smart person.

UPDATE No. 3: See what I mean? Americans distrust the U.N. with good reason (corruption, anti-Americanism, bloated bureaucracy, anti-Israel Human Rights Council, etc.), and any legal theory which increases the power of the U.N. over our domestic or international policy is a political non-starter no matter how good it sounds in theory or in the classroom: Only 27% See the U.N. As America's Ally.

UPDATE No. 4: Jeffrey Toobin has an excellent discussion of the issue of transnationalism at The New Yorker. As Toobin explains, this is a serious issue, and not the crack-pot conspiracy portrayed by Koh's defenders (who appear to be the ones who are oversimplifying the issue and creating caricatures of the opposition -- my take):

The heart of the attack on Koh, who is now the dean of Yale Law School, is that he believes in “transnationalism,” which purportedly is the notion that American courts should honor and apply the laws of other nations in our courts. This dispute first drew broad notice when Justice Anthony Kennedy cited foreign and international law in two high-profile liberal decisions—Lawrence v. Texas, which, in 2003, established that gay people could not be criminally prosecuted for having consensual sex, and Roper v. Simmons, from 2004, which outlawed the execution of juvenile offenders in the United States.

Kennedy’s reliance on non-American sources generated a great deal of controversy, which I wrote about in this piece about him in 2005. In my interview with him, and in the opinions themselves, Kennedy made a point of saying that he did not feel in any way legally bound by what foreign courts had ruled, but he thought there was much that could be learned from how other countries handled similar issues to those facing our courts. Even that much reliance on foreign sources alarmed critics, and Kennedy has since backed away from the practice. He’s hasn’t cited a foreign source in a constitutional case since Roper.

Indeed, the practice has become politically incendiary. John G. Roberts, Jr., and Samuel A. Alito, Jr., did not make many direct commitments during their confirmation hearing testimony, in 2005, but both said they would never do what Kennedy did—cite foreign law. The point is that this issue 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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Related post: Passover Is No Time To Wish For The End Of Christian America

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