Is America Ready for a Real Internationalist on the Supreme Court?

Tom Goldstein has this post with a not-so-short list of possible nominees for the Supreme Court should a Democrat take the White House in 2008. I count only two internationalists out of the 30 on the list: Yale Law dean Harold Koh and Seventh Circuit judge Diane Wood.

My question: why doesn’t Koh make Goldstein’s shorter list of nine “leading” candidates? Koh has unbeatable credentials. He would be the first Asian-American appointed to the Court, so that looks like a clear plus in Goldstein’s “demographic” priority, and there’s no actuarial problem. His executive branch experience gives him a political savvy that would make him extremely effective on the bench (think of how Alito and Roberts’ experience is paying off for the other side of the aisle — see this paper by Michael Dorf). I think a Democrat president could be confident that Koh would advance a progressive judicial agenda pretty well (in perhaps something of a contrast to Breyer and Ginsburg’s more minimalist approaches).

So would Koh’s internationalist orientation pose an obstacle to his nomination? Clearly, it wouldn’t be a plus, even with a Democratic Senate. Consider how Alito and Roberts unabashedly rejected the use of foreign and international legal materials in constitutional jurisprudence (see here and here) at the same time they beat around many other bushes, along with such symbolic but not inconsequential legislative exercises as this one. I imagine a careful set of talking points could overcome the problem, at least with the majority, but it might still attach some risks to the nomination. For that reason, my hunch is that Koh would be a more likely Obama pick than a Clinton one, criss-crossed school loyalties notwithstanding.