Response to Ed Whelan Regarding Koh Nomination

Ed Whelan responds to my post mostly through name-calling, labeling me an incoherent, liberal academic. Yet, no amount of ad hominem attack can obscure the basic weakness of his argument. He continues to worry that international elites will subvert the will of democratically elected leaders in the executive and legislative branches. But who exactly are these international elites and how does Whelan think this subverting will be done?

At one point, Whelan seems to focus on academics and NGOs as his elite culprits, picturing them imposing customary international law on an unwilling democratic majority. But that is simply a red herring. 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 Whelan must really be focused only on the specter of so-called “transnationalist” judges overturning 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. As to concerns about customary international law, there are, as Whelan points out, hundreds of pages of academic debate on the precise nuances of how customary international law and federal common law interact, but the key point is that Koh’s position on this question is firmly within the mainstream of legal thought. Indeed, courts perform common law adjudication all the time to resolve ambiguities or lacunae in the law, and when they do, they frequently consult treatises or other materials. To claim that doing so somehow means that judges are subverting democratic processes is at best hyperbole and at worst distortion. Indeed, most of Whelan’s arguments seem to be equally applicable to all forms of judicial review, but if Whelan is opposed to judicial review, then it is Whelan who is the extremist, 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.

Most fundamentally, Whelan ignores the core point of my post, which is simply that Harold Hongju Koh is a mainstream scholar and lawyer who has won praise from Democrats and Republicans alike and who has even-handedly served in Democratic and Republican administrations. Whoever the “transnationlist elites” may be that Whelan’s fevered imagination pictures taking over the world, Koh is simply not one of them.