Defending Harold Koh

by Duncan Hollis

Chris Borgen and I have an op-ed in today’s Philadelphia Inquirer — you can access it here – defending Yale Law School Dean Harold Koh’s nomination to serve as the Legal Adviser to Secretary of State Hillary Clinton.  Our inspiration for writing it was Rick Santorum’s recent column, which suggested Harold Koh was un-American, and launched a general attack on international law having any role in U.S. law or foreign law serving as any source of interpretative authority within the U.S. legal system.  Our op-ed suggests that whatever roots isolationism may have as an American tradition, Koh’s critics have painted an inaccurate and incomplete portrait of Koh’s positions, and, in doing so, ignored a distinct American tradition of international engagement with both international and foreign law.

Meanwhile, the Senate Foreign Relations Committee is scheduled to take up Dean Koh’s nomination tomorrow at 2:15.

http://opiniojuris.org/2009/04/27/defending-harold-koh/

7 Responses

  1. I address the Hollis/Borgen op-ed here.  Short version:  Their op-ed sets up and knocks down a series of straw men, doesn’t engage a single argument that I have made in my extensive series on Koh’s transnationalism, and misrepresents what is at issue.

  2. Hey Chris and Duncan, I think your article is very persuasive and well-founded, but I don’t think it is really responding to Santorum or substantive critics like Whelan.   Santorum doesn’t call Koh “un american.” Nor does he reject, as your column suggests, the binding nature of treaties nor even the binding nature of customary law. He is objecting to Koh’s  support of incorporating international and foreign law into the Eighth Amendment jurisprudence.   I know that a number of justices have endorsed this approach, but surely it is reasonable for Santorum to criticize this and to suggest that it would allow judges to use foreign opinions as a basis to override domestic U.S. law.   So I think the column, while persuasive, is not that responsive. 

  3. I also found the op-ed quite unsatisfying.  Whereas some of Koh’s critics have drawn ridiculous caricatures of his views, the op-ed fails to address the substantive criticisms of Koh that have been offered to date.  As a political matter, i understand why some Koh supporters would like to water down his positions, but I think this does a disservice to Koh and the underlying debate.  Koh would hardly be the towering figure within international law that he is today if his positions were as milquetoast as the op-ed suggests.  As one who disagrees with Koh’s views, but believes he should be confirmed nonetheless, I would hope for a more substantive engagement with the underlying issues.  The entire debate thus far has been underwhelming, but I have been particularly surprised (and disappointed) at the relative lack of substantive argument from Koh’s supporters.

    JHA

  4. Ed:

    Our piece, as we explain above, was written after we had read Rick Santorum’s essay.  We would have needed more than our 700 word limit to work through your various essays in the level of detail that I expect you want. In any case, I think there have already been plenty of responses to those pieces on this and on other blogs.

    Julian:

    Regarding how Santorum characterized Koh: he called Koh’s nomination evidence of a “disdain for American values.” 

    One of our main points is that in blanket criticisms of “transnationalism,” critics confuse that there are two different sets of issues at play, one concerning international law and the other concerning the role of foreign law.  After casting aspersions on the idea of “domesticating” international law, Santorum then focuses on the foreign law issue in the latter part of his essay (as we do in ours).  Given the fast and loose handling of these two sets of laws, we thought it was important to make clear the role of international law (which is binding) as oppsoed to comparative foreign law (which isn’t). We think this point is often muddled and needed clarifying.

    Along those lines, our piece was not just about the Santorum essay. It was not supposed to be a point-by-point response (note that his name never even appears in the essay). Though inspired by his piece, we were writing a bit more generally about some of the misperceptions that have arisen in the debates.

  5. Thanks, Chris, for your response.  You’re right that a 700-word op-ed wouldn’t give you room to address my arguments.  But that’s why I would have hoped that you and others would have used your unlimited blog space to do so.  Instead, there’s been virtually no engagement.
     
    As for the distinction between international and foreign law:  It’s Koh himself who treats them similarly when he argues that American courts “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law.”  The only way for American courts to do that “coordinating” is to subordinate the real American Constitution to those rules of foreign and international law.  That’s exactly what Rick Santorum was complaining about.

  6. I’ll echo Chris’s response.  Contrary to Jonathan’s suggestion, I didn’t see this op-ed as an attempt to rebut specific substantive critiques of one Koh position or another (e.g., what constitutes customary international law).  Indeed, I don’t know that I’d call myself a transnationalist, so I’m not sure I’m best suited to make that defense (now, if you want to debate the relative merits of positivism and Why State Consent Still Matters, I’m game). 

    Rather, Chris and I saw in some of the commentary, specifically Santorum’s column, an attempt to expand Koh’s nomination fight into a larger debate about the role of international and foreign law in the U.S. legal system.   Although Julian and others may think these are “straw” positions, I’m not sure it’s true that resisting international law entirely or any use of foreign law doesn’t follow from listening to Koh critics like Santorum or Glenn Beck (as for Ed, 700 words would be inadequate to respond to 17-plus posts, and I’ll concede for my own part not having tried to do so here).  

    Simply put, our op-ed attempted to give the general public (i.e., not the lawyers) a counter-narrative to the more extreme Koh opponents.  For my part, I specifically wanted to flag “easy” cases where international law is part of U.S. law (and here I include customary international law as part of U.S. law per the Paquette Habana and Sosa, albeit with lots of room to debate what the content of this law is).  Similarly, we wanted to counter charges that the Supreme Court must ignore all foreign law, even if lawyers may debate which sources to employ and how much weight to attach to them.  In doing so, we weren’t suggesting that all Koh’s critics are isolationist, but I do think that some of them follow that tradition.  And, although Ed takes umbrage at our quoting the Declaration of Independence’s reference to a “decent respect to the opinions of mankind,” it was Santorum who introduced the phrase as one of the key reasons to oppose Koh.  Whatever one might think of the phrase in defense of a transnational approach, we were hard pressed to see why this quote should be allowed to stand as a reason to oppose it.     

      

  7. Duncan –

    I would like to see the debate over Koh’s nomination become “expand Koh’s nomination fight into a larger debate about the role of international and foreign law in the U.S. legal system,” and for there to be a substantive debate, I think it needs to focus on the real, substantive points of disagreement, rather than the talkshow blather.  Glenn Beck and the “more extreme opponents” may make inviting targets, but engaging them doesn’t really advance the discussion very much.  It’s like focusing on Greenpeace and Earth First in an effort to rebut mainstream environmental advocacy; it makes for a nice op-ed, but doesn’t engage the real issues.  In short, I understand the temptation — I’ve probably succumbed to it myself — but I don’t think it advances the discussion.  I think it’s clear that Koh’s views, whatever their merits, are not particularly mainstream outside of the legal academy, and I suspect that some of Koh’s defenders avoid substantive engagement so as to obscure this fact.  It’s too bad, for while I don’t think the Senate should reject him — and I don’t think it will — it would be healthy for the nation to have a substantive debate.

    JHA

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