The End of the Koh Wars: What Did It All Mean?

I have remained largely silent on Harold Koh’s confirmation battle, which is probably about the end this week with a vote in the Senate.  I assume that Koh will be confirmed (because I don’t think the Senate Democrats would hold a vote if they didn’t have the votes).  And part of me is glad because, as many of this blog’s contributors have argued, Koh is a good and honorable guy who really believes in public service and is more than qualified for the job.

But part of me is worried because I disagree with Koh on quite a few things that will relate to his new job. I don’t relish watching him shepherd various new self-executing treaties through the Senate without any protection for federalism while at the same time shaping the US government’s view on customary international law in ways that will (in my view) overly constrain US actions abroad.  I don’t know if Koh will succeed in doing all these things, but even his supporters would concede that this is the type of stuff he wants to accomplish.  

Perhaps more importantly, what will be the long-term consequence of the extraordinary public debate over Koh’s nomination?  My co-blogger Peter Spiro suggests it is simply going to be the last stand of “sovereigntism” (which would be sad because Peter invented this term).  I think that this is really only the beginning of the fight over what is the proper relationship between international law and domestic policymaking.  Harold Koh will be confirmed, but it will probably take close to 60 Democratic senators to get him there, and probably a couple of Republicans as well.  If it is going to be hard for Koh now, just wait until the Democrats lose one or two more seats in the Senate.  Or if President Obama’s popularity falls below 50 percent.  Koh and his supporters will win this battle, but I don’t think this is the end of the war.