19 Apr Koh Wars: Stuart Taylor and Evan Thomas’s Newsweek Assessment
Just in case you hadn’t had enough of the Koh discussions, here are Stuart Taylor and Evan Thomas in Newsweek. I am in broad agreement with this assessment, for whatever that is worth. I also broadly agree with Jonathan Adler’s assessment over at Volokh (below).
There, I’ve said all I want to say in the Koh wars. Well, not quite.
Of course I think he should be confirmed, because despite my utter disagreement with his transnationlist ideas and my general agreement with Koh’s critics including Andy McCarthy, Ed Whelan, and John Bolton about the broad propositions of transnationalism, I think the President is entitled to his nominees to his administration unless, as Taylor and Thomas say, the nominee is “off the wall. Koh is not.”
Far from it, of course; Dean Koh is brilliant, by all accounts a great person of great integrity, the sort of person needed in government. (But, to be clear, the Senate did operate on rather a different standard when it came to John Bolton, and that standard is not irrelevant today.) I realize that Koh’s views are so accepted in mainstream international law academic circles that to raise questions about them seems less a matter of discussion than excommunication: we are the minor clergy of natural law. Outside our refined circles, however, not everyone is so sure – including Taylor and Thomas, who say of Ed Whelan’s admittedly breathless attacks, he “raises legitimate questions.” So I also think Koh should answer all of Julian’s questions and (especially as issues such as piracy have become prominent) even more besides.
More interesting to me is the broader question of the Obama foreign policy, which I discuss over here. Transnationalism or the ‘New Liberal Realism’ – or a division of labor and turf between the two, one seeking to reshape American domestic law and the other dealing with the world as it is? But here is Jonathan Adler:
As the [Newsweek] article notes, Koh is a highly regarded academic, at the top of his field. He is “well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left.” And this is particularly true in the field of international law. As I’ve said before, I think the President is entitled to name as his advisors those who share his views and policy agenda. But I also think Koh’s stated positions on various issues, from the legality of the Iraq War to the relevance of international law to whether the death penalty is constitutional, could make for an interesting confirmation hearing.