Ed Whelan’s Idea of “Honest and Competent Debate” (UPDATED)

by Kevin Jon Heller

Ed Whelan ends his latest intervention into the debate about Koh by asking, “[c]an’t anyone out there engage in honest and competent debate?”  A fair question — so I thought it might be useful to take a quick look at what Whelan seems to think qualifies:

I’ll take a brief break to respond to the vapid criticisms of my posts by Koh’s defenders. I haven’t seen anything yet that rises beyond the risible.

Now a quick survey of the folly of Koh’s defenders.

The hapless (but therefore aptly named) Charlie Brown.

Publius-Poseur doesn’t know up from down about Koh.

That’s a ludicrous mischaracterization, as any sentient being who reads Koh’s own words in my posts should immediately recognize.

And she doesn’t have the decency even to link to my posts (perhaps out of fear that her readers will discover how empty her responses are).

It shouldn’t be surprising that I responded to her attacks on me rather than bothering with her trivial “core point.”

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.

Incoherent academics for Koh.

It’s long been my experience that many liberal legal academics are surprisingly unable to engage in reasoned legal argument.

Those selections, by the way, come from three posts.  Honest and competent debate indeed!

PS: The saddest thing about Whelan’s feverish and dismissive writing style is that, in his more temperate moments, he has offered well-reasoned criticisms of Koh that deserve proper rebuttal.  I agree with him, for example, about the potential for transnationalism to undermine what I believe are important First Amendment restrictions on criminalizing hate speech.  But it’s hard to blame Koh’s defenders for ignoring those criticisms, given that all of their previous attempts to respond to Whelan have been met by nothing more than insults.

UPDATED: As he notes in the comments, Whelan has modified his most recent post to eliminate much of the rhetoric I quote above.  His posts are still too dismissive for my liking — something I am guilty of myself far too often — but he deserves credit for recognizing that he wasn’t helping his own cause.  And I reiterate that I hope Koh’s defenders will address the points he makes in his substantive posts, such as here.

http://opiniojuris.org/2009/04/10/ed-whelans-version-of-honest-and-competent-debate/

3 Responses

  1. The issue isn’t whether there are substantive, perhaps even cogent critiques from the right about Dean Koh’s views on international law.  The issue is whether those critiques bear upon Koh’s fitness for the office to which he is being appointed.  And that’s where Whelan’s arguments break down because he has to elevate his disagreements with Koh over the scope of customary international law into a subversion of the Constitution and representative democracy. Without that threat to the legal order all you are left with are policy differences and policy differences over presidential appointments to the Executive Branch are not enough to warrant and sustain a filibuster. Policy differences are what elections are there to resolve and they have been resolved overwhelmingly in the Democrats’ favor.

    I don’t mind the sarcasm — some of it is even funny — but the conspiratorial nature of Whelan’s assertions about Dean Koh’s views on international law just don’t follow.

    For example, Whelan writes:

    “So let’s look at the overall transnationalist game on customary international law:  The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them—for example, hate speech, health care, and various other economic, social, and cultural ‘rights.’ Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents.  The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office.  Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary.

    Anyone perceive a threat to American principles of representative government?”

    Does anyone, at least one who is engaging in honest and competent debate, really believe that Dean Koh’s appointment to be the legal advisor of the State Department will result in the scenario as outlined by Whelan above?

  2. Dear Mr. Heller:  

    I’ve run across your comment just after modifying my most recent post to eliminate much of the rhetoric that I now recognize was unnecessarily harsh.  So I won’t dispute that you can fairly criticize me for having been intemperate in responding to Koh’s defenders. 

    I will note, however, that even my overly harsh rhetoric was accompanied by arguments that fairly presented the positions that I was disputing (usually with quotes) and explained why they were wrong.  That’s the sort of argument that I wish that Koh’s defenders would engage in, and that’s what I meant by “honest and competent” debate.

    I think that you and your readers will see that I have engaged Koh’s arguments in a much fuller and fairer manner than Koh’s defenders have engaged mine.

    Sincerely,
    Ed Whelan

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