Legal Adviser Nominee Harold Koh Should Be Confirmed

by Laura Dickinson

[ Laura Dickinson is the Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

After three months of unwarranted delay, the cloture vote on State Department Legal Adviser nominee Dean Harold Hongju Koh is finally scheduled for tomorrow. (See Chris Borgen’s post, here.) Predictably, critics on the right are gearing up with robocalls and email campaigns aimed at painting Dean Koh as an extremist who wants to subvert American democracy through so-called “transnationalism.”

But as I have blogged previously (and Hari Osofsky did earlier today at IntLawGrrls), nothing in Dean Koh’s background or views supports any such accusation. To the contrary, Koh’s views are firmly within mainstream legal thought. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and he has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.

Fair-minded Senators should flatly reject right-wing attempts to raise the red herring of transnationalism to scuttle Koh’s confirmation. After all, transnationalism is simply a recognition of our legal interdependence with the rest of the world–traditional, not novel; not a surrender of sovereignty but a recognition that we must engage diplomatically to assert our interests. Thus, when Koh argued in an amicus brief to the U.S. Supreme Court that it might consider foreign and international law and practice in deciding whether the eighth amendment of the Constitution’s ban on cruel and unusual punishment prohibits the execution of children, senior diplomats from both Republican and Democratic administrations joined him on the brief. Koh did not contend that foreign and international law was controlling, but rather merely relevant – one source among many that the Court could consider – a position the Court agreed with.

Indeed, a transnationalist approach does not in any respect hold that international or foreign law binds us contrary to our interests; it only suggests that it may often actually be in our interest, as the Declaration of Independence asserts, to “pay a decent respect to the opinions of mankind.” Transnationalism merely admits the possibility that how we act in the world (and the interests we are able to achieve) may be affected by how we are seen by others. Nothing particularly controversial is contained in such a position.

Some right-wing bloggers have raised the specter of transnational elites subverting the will of democratically elected leaders in the executive and legislative branches. But who exactly are these international elites and how would this subverting even be done? Sometimes the focus seems to be on academics and NGOs as the elite culprits, imposing customary international law on an unwilling democratic majority. But that is nonsense. After all, academics and NGOs have no power to create law on their own. They can only make arguments that it would be in the best interest of the United States to follow certain international norms. And to whom do they make such arguments? Well, to the extent that the arguments are made to the legislative or executive branches, then clearly the international law argument is not subverting the democratic political process; it is part of that process.

Therefore the critics must really be focused only on the possibility that so-called “transnationalist” judges will overturn the will of democratically elected leaders. But this concern is also without foundation. After all, when interpreting constitutional provisions, not a single sitting U.S. Supreme Court justice has taken the position that international or foreign law constitutes binding authority. Indeed, most of the critics’ arguments seem to be equally applicable to all forms of judicial review, but if they are opposed to judicial review, then it is they who are the extremists, seeking to turn back the clock hundreds of years on matters that have been settled in this country since the founding era. And that’s an argument that has nothing to do with international law at all.

Therefore, failure to confirm Dean Koh would be indefensible, particularly during this period of international turmoil, with fast-moving change in Iran, Iraq, Afghanistan, the Middle East, North Korea and elsewhere. This country needs to have a Legal Adviser in place at the State Department, and we need it now. And there is truly no one in the country more qualified for the task than Dean Koh. His nomination should not be held up any longer in the name of fake charges of extremist transnationalism.

4 Responses

  1. “Therefore the critics must really be focused only on the possibility that so-called “transnationalist” judges will overturn the will of democratically elected leaders. But this concern is also without foundation.”

    Here are a number of the questions on which Koh holds views that really do have implications concerning democratic sovereignty which I have never yet seen addressed or even acknowledged by Koh’s defenders:

    -Whether the US may ratify a treaty subject to the understanding that it is not self-executing in the face of other signatories’ opinion that this should not be done (essentially whether American courts should respect such a reservation)

    -Whether US reservations limiting the interpretation of provisions of a treaty have domestic legal effect in the face of the consensus of other signatories for a contrary interpretation

    -Whether the US may or ought to ratify treaties with the now traditional reservation recognizing the limitations of the federal system

    -Whether the US government may accrue powers (particularly in areas of human rights) pursuant to treaty or IL implementation where such powers traditionally reside with the states

    -Whether all forms of modern customary international law are automatically federal common law (recognizing here that there is a substantive difference between traditional CIL that concerns affairs between nations such as war, blockade, arms agreements, tariffs, sanctions, diplomatic immunity, etc., and modern CIL that deals with internal everyday issues such as limiting agricultural and industrial subsidies, regulating standards of manufacture, and – especially – defining human rights violations and creating causes of action for their redress)

    -Whether provisions of a treaty to which the US has objected in reservations attached to the ratification may nevertheless come to hold domestic force as CIL

    These are a few of the more serious points of concern. One can hardly argue that they do not have meaningful implications for US democratic sovereignty – not in the crass we-want-to-prentend-IL-doesn’t-exist sort of way, nor out of an absurdist we-oppose-all-judicial-review position, but on the legitimate fear that they make an end-around of US democratic consent as constitutionally structured.  Current caselaw is frequently against the transnationalist position.  But on all of these questions, Dean Koh, at least in his academic writings, appears inclined to resolve things in favor of international law, global authorities, or (seeming) foreign consensus – and against US representative democracy.

    A mere acknolwedgement that Koh has taken these positions, and that, if they prevailed, they would indeed have implications for democratic sovereignty, seems to me to be the least Koh’s supporters owe his more serious opponents.

  2. Correction:

    Drawing in my fifth question from lists of IL areas I had previously composed, I neglected to limit the lists to areas with which CIL is concerned.  But even with properly restricted lists the point still stands.

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