Koh Wars: Stuart Taylor and Evan Thomas’s Newsweek Assessment

by Kenneth Anderson

Just in case you hadn’t had enough of the Koh discussions, here are Stuart Taylor and Evan Thomas in Newsweek.  I am in broad agreement with this assessment, for whatever that is worth.  I also broadly agree with Jonathan Adler’s assessment over at Volokh (below).  

There, I’ve said all I want to say in the Koh wars.  Well, not quite.

Of course I think he should be confirmed, because despite my utter disagreement with his transnationlist ideas and my general agreement with Koh’s critics including Andy McCarthy, Ed Whelan, and John Bolton about the broad propositions of transnationalism, I think the President is entitled to his nominees to his administration unless, as Taylor and Thomas say, the nominee is “off the wall.  Koh is not.”  

Far from it, of course; Dean Koh is brilliant, by all accounts a great person of great integrity, the sort of person needed in government. (But, to be clear, the Senate did operate on rather a different standard when it came to John Bolton, and that standard is not irrelevant today.)  I realize that Koh’s views are so accepted in mainstream international law academic circles that to raise questions about them seems less a matter of discussion than excommunication: we are the minor clergy of natural law.  Outside our refined circles, however, not everyone is so sure – including Taylor and Thomas, who say of Ed Whelan’s admittedly breathless attacks, he “raises legitimate questions.” So I also think Koh should answer all of Julian’s questions and (especially as issues such as piracy have become prominent) even more besides.  

More interesting to me is the broader question of the Obama foreign policy, which I discuss over here. Transnationalism or the ‘New Liberal Realism’ – or a division of labor and turf between the two, one seeking to reshape American domestic law and the other dealing with the world as it is?  But here is Jonathan Adler:

As the [Newsweek] article notes, Koh is a highly regarded academic, at the top of his field. He is “well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left.” And this is particularly true in the field of international law. As I’ve said before, I think the President is entitled to name as his advisors those who share his views and policy agenda. But I also think Koh’s stated positions on various issues, from the legality of the Iraq War to the relevance of international law to whether the death penalty is constitutional, could make for an interesting confirmation hearing.

http://opiniojuris.org/2009/04/19/koh-wars-stuart-taylor-and-evan-thomass-newsweek-assessment/

2 Responses

  1. The Newsweek piece is staggeringly dishonest and consists of little more than innuendo.  Will Koh’s transnationalist beliefs make American courts subject to unaccountable European bureaucrats?  Will he ban Mothers’ Day? Inquiring minds want to know!  

    What I see over and over again, above, in the Newsweek piece, in Ed Whelan’s commentary, etc., is a desire by conservative legal academics to  to take ongoing academic debates about international law into the court of public opinion.  The confirmation hearings are seen largely as an opportunity to force Koh to defend previous statements, given in other contexts, to the public at large.  The unspoken hope is to embarrass Koh, and by extension Obama, by eliciting some sort of Jocelyn Elders soundbite. 

    It is certainly true that confirmation hearings often involve this kind of political theater.  I merely suggest that a lot of Koh critics who claim to want greater intellectual rigor in the confirmation hearings actually want more of the theater.  I think a lot of people would find it enormously gratifying to see mainstream scholars like Harold Koh cast back out into the political wilderness. 

  2. “What I see…is a desire by conservative legal academics to take ongoing academic debates about international law into the court of public opinion.”

    The academic debates in this instance would seem to be directly on point in terms of the public policy to be pursued by Koh and the administration at large – as Julian Ku’s questions in an earlier post make plain – and therefore legitimately an object of public scrutiny. 

    Moreover, the most significant of the academic debates is no mere dispute as to what the law is: this debate, as concerns human rights CIL, goes to who has the authority to make the law. Is it not proper that so significant an issue be aired in the court of public opinion? 

    If the effect of Koh’s views, if fully adopted, would be to transfer some lawmaking power on issues traditionally within the domestic legislative prerogative to unratified treaties that “announce[] important customary international law rules” (111 Harv. L. Rev. 1840) and to the courts – an effect much of the public is unlikely to support – is there something amiss with asking a nominee to defend those views in the face of intelligent adversarial questions before the general public?

    Conservative legal academics have a legitimate purpose in raising the public profile of the Koh confirmation hearing.  That purpose is either to use public opinion to extract statements and pledges from the nominee that would hamper the ability of a man of integrity to push an agenda he might otherwise have pushed in the absence of such pledges, or, failing that, to apprise the public that the president backs and approves of a man who holds unpopular views.

    Call this theater if you will; it looks more like democracy to me.

    To the extent that the positions taken in academic debate would change public policy – that is, to the extent that they advocate a policy agenda – they become fit objects of public scrutiny. 

    There are some who would prefer to make law and policy without having to deal with public opinion.  Conservative legal academics may, on the basis of counting heads, lose the debate in the academy, but if, by successfully appealing to public opinion, they win on the question of what public policy shall be – well, in a democracy, that’s entirely legitimate.

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