The Non-Contest Over Koh: Sovereigntism’s Last Stand?
For a while there, it looked as if there might be a real fight over Harold Koh’s nomination as State Department Legal Adviser. The Republicans have been casting about for a nomination that they could defeat on some issue of principle (that is, over something not involving a nominee’s tax returns), along the lines of Lani Guinier’s failed nomination to the Clinton Justice Department. It might also be useful for them to pick up a rallying call. Anti-internationalism has looked pretty promising. As fringe elements started taking shots at Koh, it looked like they might get some traction with more mainstream voices.
Not to be. Yesterday’s hearing wasn’t exactly a love fest, but the gloves were on. Further evidence that his confirmation is assured: there appears to have been no major media coverage of the hearing. Harold Koh will be the next legal adviser.
Beyond the fact that Koh supporters put together an effective response to blogosphere detractors, and that Koh has ideal qualifications for the position (then again, so did Guinier), there are two explanations for his sailing through.
The first is that he’s not really a transnationalist, “transnational legal process” notwithstanding. Efforts to paint Koh as someone who believes in the primacy of international law (in the sense of trumping US law) failed for the simple reason that he doesn’t. Koh buys into American exceptionalism, the good version in which the United States should stand at the head of the human-rights-advancing pack. Anyone who has heard him speak of his family history (including in his opening statement to the committee) will know that he is patriotic, in the way of a liberal nationalist. Koh’s positions are hardly radical. (He did a really nice job in his testimony of playing up “cooperation,” “interdependence,” and “managing” the relationship between US and international law.) On this view, Koh just wasn’t the right target for a sovereigntist ambush.
On the other hand, if Koh wasn’t the right target, then nobody is. No nominee will ever acknowledge the superiority of international law in that trumping sense. Koh is (obviously) favorably disposed to international law. In a response to Senator Corker, Koh forthrightly asserted that the US has been “lawless” in the sense of having “fallen below international standards” with respect for example to detainee treatment and the invasion of Iraq. That might seem an obvious characterization to many of us, but it takes some guts for a prospective high-level official to go there; I’m sure for Corker and other red-meat Americans the proposition just doesn’t compute. If the sovereigntists couldn’t muster the troops for this one, then they don’t comprise a very potent political force.
So what’s the upshot, beyond the confirmation? Maybe Obama will be a little more inclined to push on various IL-related fronts, law of the sea, the women’s and children’s conventions, and the ICC (with Koh as legal adviser leading the charge), on the probability that they’ll require less in the way of political capital. Maybe the Supreme Court will get back on its internationalist tracks. As some conservative elements begin to see IL as a valuable tool for advancing their own agenda, anti-internationalism won’t even work as a unifying agenda item within the rump Republican party. Maybe we’ll witness Bricker’s final interment and a shift in the political culture towards broad support for international law and institutions.