Constitutional Law

Harold Koh and Conservative Misinformation

By Jonathan Krause, practicing attorney in Philadelphia and Fellow with the Truman National Security Project.

What do Ken Starr, Ted Olson, and Larry Tribe have in common? No, this is not the set-up for a 'two conservatives and a liberal walked into a bar' joke. Instead, Starr, Olson (two fixtures at the Federalist Society) and Tribe (a leading progressive jurist) all agree on something: they have all endorsed Harold Koh (pictured below) as President Obama's choice for the position of legal adviser at the State Department.

This might come as a shock to readers of conservative blogs and opinion pieces. Many conservative commentators have worked themselves into a frenzy, declaring that Koh's appointment would subjugate American law to the decisions of international courts and spell the end of American sovereignty. Yet these fears represent either a misunderstanding or a willful distortion of Koh's actual legal views.

First, these critics claim that Koh would force American courts to be bound by the rulings of foreign or multi-national judicial bodies like the International Criminal Court. According to them, Koh would have American judges take their marching orders from the Hague, Paris, or, even worse, Tehran. However, this is not what Koh advocates.

Koh's unremarkable position is that rulings by non-American courts should be considered, when applicable, as persuasive authority in deciding an issue before an American court. Unless required by treaty, American courts would have no obligation to follow the decisions of any foreign courts. They should merely consider how they addressed the same issue. Not only is this not controversial, it is also common sense.

For example, if Philadelphia's City Council is considering the effect a smoking ban will have on local businesses, it would be foolish not to look at how similar bans affected business in New York or London. Similarly, if a court is considering whether mentally retarded defendants should be sentenced to death, it might want to see how other democracies with similar values have addressed the issue.

This is little different than a Pennsylvania court citing the opinion of a New Jersey court in support of its decision. To do otherwise would be to ignore the world around us and deprive courts of a valuable tool in understanding the consequences of their decisions. Unless you believe that judges should pay no attention to the results of their actions, Koh's position should not alarm you.

Second, Koh's critics say that Koh is a 'transnationalist,' which sounds a lot scarier than it is. The concept here is that when nations engage with each other and are exposed to their respective traditions and beliefs, they tend to absorb some of the other nations' beliefs internally. To put it another way, when you speak to your neighbor about a common issue, you are likely to adopt some of your neighbor's beliefs if you find them convincing.

This is not a threat to American sovereignty but a theory of international relations. As a practical matter, transnationalism encourages diplomacy over unilateralism because the belief is that by engaging with antagonists, they will be brought into the community of nations and forced to gradually adopt our norms. While conservatives may disagree with this approach, it is neither illegitimate nor anti-American.  

So what's really stirring opposition to Koh? The answer is easy. President Obama is too popular for conservatives to attack directly. During the presidential campaign, their attacks on Obama's patriotism failed, and it would be unseemly for them to challenge the President's commitment to American values. That is where Koh enters the picture.

Attacking a president's nominee is a proxy for attacking the president. In the world of nominee-slayers, there are two common strategies: inexperience and ideology. No one can question Koh's experience. He was Dean of Yale Law School, served with distinction in the Reagan and Clinton administrations, and was confirmed unanimously by the Senate. His expertise on international law has been lauded by jurists of all political stripes.

Since the 'experience critique' doesn't hold water, conservatives have targeted his beliefs. What they are really saying is that they do not agree with President Obama's foreign policy. They have that right, but it's a grievance that should be presented in the context of elections. Koh's critics are objecting to the worldview the American voters supported when they voted for Barack Obama on Election Day.

There is a legitimate debate to be had about the proper influence international law should have in American courts and on domestic American legal issues. But distorting the record and positions of public servants like Koh hurts our democracy and perverts our legal system. That should be something we can all agree on.

Full post as published by ACS Blog on April 18, 2009 (boomark / email).