Response to Ed Whelan Regarding Koh Nomination

by Laura Dickinson

Ed Whelan responds to my post mostly through name-calling, labeling me an incoherent, liberal academic. Yet, no amount of ad hominem attack can obscure the basic weakness of his argument. He continues to worry that international elites will subvert the will of democratically elected leaders in the executive and legislative branches. But who exactly are these international elites and how does Whelan think this subverting will be done?

At one point, Whelan seems to focus on academics and NGOs as his elite culprits, picturing them imposing customary international law on an unwilling democratic majority. But that is simply a red herring. After all, academics and NGOs have no power to create law on their own. They can only make arguments that it would be in the best interest of the United States to follow certain international norms. And to whom do they make such arguments? Well, to the extent that the arguments are made to the legislative or executive branches, then clearly the international law argument is not subverting the democratic political process; it is part of that process.

Therefore Whelan must really be focused only on the specter of so-called “transnationalist” judges overturning the will of democratically elected leaders. But this concern is also without foundation. After all, when interpreting constitutional provisions, not a single sitting U.S. Supreme Court justice has taken the position that international or foreign law constitutes binding authority. As to concerns about customary international law, there are, as Whelan points out, hundreds of pages of academic debate on the precise nuances of how customary international law and federal common law interact, but the key point is that Koh’s position on this question is firmly within the mainstream of legal thought. Indeed, courts perform common law adjudication all the time to resolve ambiguities or lacunae in the law, and when they do, they frequently consult treatises or other materials. To claim that doing so somehow means that judges are subverting democratic processes is at best hyperbole and at worst distortion. Indeed, most of Whelan’s arguments seem to be equally applicable to all forms of judicial review, but if Whelan is opposed to judicial review, then it is Whelan who is the extremist, seeking to turn back the clock hundreds of years on matters that have been settled in this country since the founding era. And that’s an argument that has nothing to do with international law at all.

Most fundamentally, Whelan ignores the core point of my post, which is simply that Harold Hongju Koh is a mainstream scholar and lawyer who has won praise from Democrats and Republicans alike and who has even-handedly served in Democratic and Republican administrations. Whoever the “transnationlist elites” may be that Whelan’s fevered imagination pictures taking over the world, Koh is simply not one of them.

9 Responses

  1. Prof. Dickinson:

    We’ve already learned that these attacks by ideologues are beside the point. Regardless of whether they actually believe their own rhetoric, the underlying issue is the extent to which the Republicans want to prevent more torture memos from being released by the Obama administration. But that is obviously not an acceptable basis for blocking Koh’s confirmation. Therefore, some “legitimate” reason has to be found. That Koh harbors a deep desire to impose shari’a on mom and apple pie is that reason. Of course, I don’t doubt that they’re set in their hostility to international law generally, too, but Koh is the nominee to be the legal advisor to the State Department, not the Attorney General. Unless they think the State Department should just ignore international law, too, this has to be about something else (and I suppose I’m being generous insofar as I’m not considering the possibility that they’re blocking Koh just to rankle Obama). The sequence of events involving the disclosure of these memos fits.

  2. “[Academics and NGOs] can only make arguments that it would be in the best interest of the United States to follow certain international norms.”

    Why stop there?  I don’t understand.  What is so special about the “best interest of the United Sates”?  What about the best interest of humanity?

  3. Wow, apparently Ed Whelan thinks throwing a temper tantrum is an adequate replacement for actually offering an argument.  His new response to Laura, again persuasively entitled “Incoherent Academics for Koh,” is priceless.  My favorite is his claim that he did not have to respond to her “trivial” core point because he once asked rhetorically “how does Koh’s confirmation 11 years ago foreclose examination of what we have learned about him, and about the transnationalist threat, in the meantime?”  I imagine Laura would offer the obvious response: given that Koh’s positions on the issues under discussion have not changed in the past 11 years, the fact that those views did not engender opposition from the right then should establish at least a rebuttable presumption that they are not worthy of opposition from the right now.  If something has changed about Koh’s “transnationalist threat” — ooh, scary! — Whelan hasn’t identified what it is.  But that, of course, would require making an argument instead of describing anyone who disagrees with him as “incoherent” and incapable of legal reasoning.

  4. Whelan’s “response” is here.

  5. It’s also incredibly amusing that Whelan ends his post criticizing Laura for not knowing what an ad hominem attack is by writing, regarding Koh,  “As for his being a ‘mainstream scholar’: I’ll readily acknowledge that in the zoo of modern legal academia, Harold Koh isn’t an especially exotic creature (especially to other animals in the zoo). But that says much more about the state of legal academia than anything else.”

    You just can’t make this stuff up.

  6. KJH:

    You just can’t make this stuff up.
    Sure you can… in a phantasmagoria of horror.
    Oh, look, it’s in the National Review.

  7. Response…Ed Whelan responds to my post mostly through name-calling,

    Actually, no he didn’t.   But hey, why be honest about one’s arguments when your own are so weak?

  8. Nice argument, Paul!  Oh, wait, you don’t make one…

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  1. […] on his reasonable support for judges’ routine application of customary international law, Professor Laura Dickinson is right on the money in her post on Opinio Juris, in which she […]