21 Jun Donoghue Confirmed as Choice for ICJ Vacancy
Secretary of State Hillary Clinton has confirmed Joan Donoghue as the choice to fill the vacancy on the ICJ left by Judge Thomas Buergenthal. She describes Donoghue as “judicious, fair, an extraordinary international legal counsel, and an excellent choice for the Court.“
Let me also pick up on a comment to my previous post, in which Peter Trooboff defends Donoghue’s independence and intellect. Neither Clinton’s press release nor Trooboff’s comment address my central concern of why Donoghue was chosen over candidates who were clearly more qualified. The most logical answer is political influence of the Obama Administration and/or confidence among the State Department Legal Advisers of the U.S. national group in her future voting behavior.
Incidentally, my concern about the role of politics in the election of ICJ judges is nothing new. The process of election through the national group of the PCA with the approval of the Security Council and the General Assembly was designed to minimize political influence in the nomination process. More recently, former Legal Adviser Davis Robinson expressed such concerns at the 2003 ASIL annual meeting, candidly admitting that most national groups usually “are extensions of their governments.” He did note that the U.S. national group on occasion has displayed streaks of independence, with the choice of Richard Baxter over the Carter Administration’s preferred candidate—former Supreme Court Justice Arthur Goldberg—as the most famous example. But Robinson emphasized that historically U.S. government control is neither sought nor exercised.
With respect to the choice of Donoghue, can one say with confidence that that U.S. government control was neither sought nor exercised? Did Harold Koh display appropriate discretion in pushing for his immediate subordinate at State to fill the ICJ slot? Did the U.S. national group exercise its authority with the same independence as it has in the past? I have no doubt that Donoghue is qualified in the Article 2 sense, but I seriously doubt that a career State Department lawyer who is virtually unknown outside government is the best person for the job, particularly given the alternatives. Or if you wish to do an historical analysis, compare her credentials with those of Hackworth, Jessup, Dillard, Baxter, Schwebel, and Buergenthal at the time of their nominations. It just doesn’t add up.
What could possibly have tipped the balance in favor of Donoghue over more qualified candidates other than the concerns I raised in my previous post? Taking seriously the requirements of judicial independence and impartiality, this choice at a minimum presents an appearance of impropriety.