State Department Legal Adviser Nominee Harold Hongju Koh Holds Mainstream Legal Views

by Laura Dickinson

[ Laura Dickinson is Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

Recent attempts to criticize Harold Hongju Koh’s appointment to be the Legal Adviser at the U.S. Department of State have gone from silly to absurd. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and his ideas fit firmly within the mainstream legal tradition in the United States. He has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. (Not only had I been his student, but I had served as policy adviser for Koh when he held this position.) He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.

Thus, when far-right bloggers tried to smear Koh by spreading a patently false rumor, that Koh wanted Islamic law to govern cases in U.S. courts, it would have been laughable had Fox News not picked up the story. Fortunately, the organizer of the event where Koh purportedly made the comment has flatly stated that Koh said no such thing.

More recent efforts to tarnish Koh by arguing that his “transnationalist legal views threaten fundamental American principles of representative government,” a position argued by Ed Whelan at the National Review Online, are equally absurd.

Koh’s transnationalist legal perspective does no such thing. It is a simple recognition of our legal interdependence with the rest of the world–traditional, not novel; not a surrender of sovereignty but a recognition that we must engage diplomatically to assert our interests. Indeed, even the conservative law professor Eric Posner has acknowledged that the core ideas behind Koh’s transnationalist legal perspective are so mainstream as to be even bland:

When the president ratifies a treaty with senate consent, the treaty becomes a part of American law; if the treaty is self-executing, courts will enforce its provisions. Congress can also adopt international law by statute. Common law courts, including federal courts using their limited common law powers, are free to draw on international and foreign law for inspiration, and often do. And federal courts sometimes rely on norms of international law for the purpose of interpreting ambiguous statutes and . . . constitutional provisions such as the eighth amendment. The observation that courts do these things is not controversial.

Thus, when Koh argued in an amicus brief to the U.S. Supreme Court that it might consider foreign and international law and practice in deciding whether the eighth amendment of the Constitution’s ban on cruel and unusual punishment prohibits the execution of children, senior diplomats from both Republican and Democratic administrations joined him on the brief. Koh did not contend that foreign and international law was controlling, but rather merely relevant – one source among many that the Court could consider – a position the Court agreed with.

Indeed, Koh’s transnationalist legal perspective does not in any respect hold that international or foreign law binds us contrary to our interests; it only suggests that it may often actually be in our interest, as the Declaration of Independence asserts, to “pay a decent respect to the opinions of mankind.” Koh’s transnationalist legal perspective merely admits the possibility that how we act in the world (and the interests we are able to achieve) may be affected by how we are seen by others. Nothing particularly controversial is contained in such a position.

Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.

In short, nothing in Koh’s background or views warrants the extreme and wrong-headed criticism he is receiving. All fair-minded citizens should resist these transparently partisan efforts to denigrate one of the country’s most distinguished public servants.

For other information on the nomination, see commentary by Chris Borgen, Anupam Chander, Dahlia Lithwick, Beth Van Schaack, and Kenji Yoshino.

8 Responses

  1. Laura,

    Fantastic post.  Thanks for giving it to us.  But I’m not so sure right-wingers will be mollified by the fact that Koh clerked for Justice Blackmun, appointed by a Republican president or not… 🙂

  2. Laura,

    I hope you will respond to Ed Whelan’s typically ad hominem post at National Review Online.  Although right-wing blogs normally simply refer to Whelan as an “NRO Contributor” — see, e.g., here — Whelan is also the President of the Ethics and Public Policy Center, a far-right think-tank that, by its own description, “was established in 1976 to clarify and reinforce the bond between the Judeo-Christian moral tradition and the public debate over domestic and foreign policy issues.”  Here is how Balloon Juice described the EPPC’s web-page:

    Undiluted batshit craziness. “Pope was right to expose cult of the condom” (referring to opposition to the use of condoms to slow the spread of AIDs in Africa), “Should the University of Notre Dame honor our most anti-life president?”, an article by Rick Santorum, an article that wonders “If Whole Foods is a culture’s answer to the demise of the Sixth Commandment”.

  3. Basing legal arguments on a “whereas” clause from the Declaration of Independence (7th paragraph above) – as opposed to the actual text of the Constitution, case law, or statutory law, seems an odd approach by a law professor.  Usually one would focus on primary authority, or possibly secondary authority.  But to focus on such non-authoritative dicta fairly shouts that weakness of Professor Dickinson’s position.

    Surely we should, as the “Declaration of Independence asserts, … ‘pay a decent respect to the opinions of mankind.’”  To boot-strap that, however, into an argument in support of a “transnationalist legal perspective” is to transform laudable generalisms into diktats of a new international law.  This is exactly the type of danger correctly identified by Ed Whelan and others.

  4. Kevin, what a remarkable comment.  First you demonstrate that you don’t know what an ad hominem argument looks like, and then you make one.   Were you trying to be funny?

  5. Thomas,

    Actually, I was!

  6. That said, how is writing that “many liberal legal academics are surprisingly unable to engage in reasoned legal argument” not ad hominem?

  7. “All fair-minded citizens should resist these transparently partisan efforts to denigrate one of the country’s most distinguished public servants.”

    I’ve read some of the man’s writings, seen his own words in print, and in context. The criticisms leveled against him are spot-on. The transnationalist approach isn’t just foolhardy, it’s arguably a betrayal of the Constitution itself. This man’s views are in no way mainstream. Say that they are all you like, it changes nothing.

  8. You know you are reading the words of a leftist loon when, in attempting to disguise a militant radical like Koh, she merely identifies a lawless enemy of the Constitution (i.e., Harry Blackmun) as a judge appointed by a Republican president.  BTW, Ed Whelan didn’t write his piece “at the National Review Online.”  It’s called National Review Online.  There ain’t no “the” there.

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