Is There a Conspiracy Against Koh’s Nomination?

The folks at UN Dispatch say they have uncovered a conspiracy among conservatives to oppose Koh’s nomination in what they describe is the “Dirty Fight Against Koh”. The evidence is this draft letter to Senators Kerry and Lugar opposing Koh’s confirmation.

Thanks to Kevin’s intervention, and Ed Whelan’s gracious admission that he’s gone a bit far in his rhetoric against his critics, I thought we had managed to push some parts of the blogosphere into a more useful discussion of Koh’s nomination. But this UN Dispatch post is exactly the type of post that is likely to cause more rabble rousing on both sides. Without defending any of Koh’s views on the merits, the post simply dismisses the authors of the letter as “the forces of darkness” and “conducting a smear campaign.”

Maybe there is a conspiracy and a smear campaign, but I see no evidence of it in this letter. Basically, the letter argues that Koh is likely to give legal advice that would restrain the use of military force without UN authorization, that he believes decisions of the International Court of Justice are (at least in some cases) directly enforceable, that the Supreme Court should try to use international law or foreign law more often, and that the U.S. should ratify the ICC and the Convention on the Rights of the Child, and that the U.S. should comply more often with international law. I doubt Koh would deny any of these positions and, indeed, I’m sure he would welcome a chance to defend them.

The broader question, which a commenter to one of Kevin’s posts has raised, is whether any of this is relevant to Koh’s fitness to serve as Legal Adviser. If none of this is relevant, then while not a smear campaign, it is probably a waste of time to raise them. But I can’t imagine legal policy questions are out of bounds for confirmation hearings of executive branch officials. And it is perfectly appropriate for senators to vote against such officials because they disagree with their views. 47 Senators voted against Ted Olson, whom no one would say was unqualified to be Bush’s Solicitor General, largely based on Olson’s substantive legal views. I doubt nearly as many will vote against Koh, but a confirmation fight of this sort is hardly unprecedented. Just ask “Ambassador” John Bolton.