Pure Politics: The Koh Nomination Fight Drags On

07/03/2009 05:12 am ET | Updated May 25, 2011

The appointment of Harold Hongju Koh, Dean of the Yale Law School and an official in both the Clinton and Reagan administrations, to be Legal Advisor to the Department of State should be a no-brainer. He is a former Marshall scholar and Supreme Court clerk, a leading expert on international law, and he's on the short list for Supreme Court. (Not to mention my former Civ Pro teacher at Yale -- but I don't hold that against him.) So why is Koh's appointment being blocked by a few Republican senators, who are using an arcane procedural tactic to prevent it from coming to a vote?

Well, it depends whom you ask -- or rather, how you choose to look.

First, as Charles Brown has aptly described in these pages, Koh's appointment has garnered widespread support, not just from pundits on this website and others but also from conservatives such as Ted Olson and Kenneth Starr. The Fox-constructed "controversy" is really only among a few conservative wing-nuts who, perhaps in a dry run for the Sotomayor Spectacle, have seized on a few comments Koh may or may not have made about the use of foreign law in U.S. courts and legal decisions.

As a result of this pseudo-controversy, two Republican senators -- David Vitter (R-Louisiana) and John Cornyn (R-Texas) -- have placed procedural "holds" on the nomination, preventing a Senate vote on the matter even though it passed the Senate Foreign Relations Committee by a 12-5 vote three weeks ago. Koh's supporters, including the 2754-person strong Facebook group "We Support Harold Hongju Koh," have been reduced to phoning Majority Leader Harry Read (D-Nevada) to get him to somehow force a vote, even though Senate procedure may not allow him to do so.

Now, on the face of it, Koh's opinions about foreign law in U.S. courts are hardly extreme. When I was a visiting professor at Boston University Law School last year, I heard Dean Koh give what seems like the same "stump speech" that conservatives are now screaming about. One of the points of that speech (complete with Powerpoint presentation) was "So what?" As Koh ably showed, American judges and justices have cited foreign law where it has suited their purposes (or provided an interesting foil) for many decades now. Non-U.S. and international law is regularly applied in commercial cases, civil claims, and countless other contexts all the time.

What Fox's critics have seized upon are some comments Koh is alleged to have made that Islamic law, or sharia, should govern cases in U.S. courts. Well, of course Koh didn't really say that -- it would be an absurdity. Did Koh say that sharia ought to inform judicial opinions, though not govern them? I don't know -- he didn't say that when I heard him in Boston. But even if he did, so what? Judges look at a wide variety of legal systems to inform their views, or to provide counterexamples. But neither Koh nor any other legal scholar would suggest what Koh's critics claim he said: that sharia (or any other religious law for that matter) should govern the outcome of cases. That's just crazy.

This entire conversation, though, plays right into the hands of Fox News and their ilk -- which is to say, it takes them way too seriously. We've seen this happen more ominously in the case of Judge Sotomayor: even the New York Times is now playing into the Right's framing of the Sotomayor nomination as being about "identity politics," all based on one comment in one speech. Koh's case is similar. Even to enter into a conversation about the applicability of foreign law in U.S. courts is to give a victory to the Far Right (or perhaps the Farther Right, given Ken Starr's support of Koh). We shouldn't let them define the issue.

So, although it's interesting that a conversation about foreign law in U.S. courts has now migrated from dusty international law journals to leading blogs and newspapers, we should categorically refuse to acknowledge that it's what this debate is about. Instead, as I see it, there are three possible explanations for the senators' obstructionism.

The first is the most obvious: this is partisan politics, and a dry run for the Supreme Court battle. The Republicans are starving for a victory -- any victory -- and if they can block Harold Koh, then, hey, at least that's something. But it's always been a bit more than that -- a fortiori, as we lawyers like to say, with the new, bigger battle looming over Judge Sotomayor. It's easy to imagine a Far-Rightist saying to the Obama administration, "If we can block Harold Koh, among the most qualified people in the country for a State Department position, just you wait and see what we unleash on your Supreme Court nominees." Especially if said future nominee is Koh himself. Presumably such tactics might lead the Obama people to pick a more centrist candidate for the Court, which is what this is really about.

Or perhaps this is all about internal Republican party politics. For the Far Right, the Koh battle is perfect pandering fodder: away from the limelight, a few Republican senators get to shore up their rightward base, and a few formerly-fringy bloggers and pundits get a bit of air time. For more mainstream Republicans (did I just call Ken Starr mainstream?!), however, the whole thing looks like what Time magazine called a "Faustian bargain" with the Far Right blowhards. In other words, this is Limbaugh/Cheney/Cantor vs. Specter/Snowe/McCain, in miniature.

A third option is that this is not about sharia -- but Guantanamo. As a young professor back in 1993, Koh crusaded to shut down the detention camp, well before it was fashionable to do so. He has been an outspoken critic of the use of torture, in any context. These are mainstream views, but maybe not to these few Republican holdouts, who might well be concerned about what we liberals call the rule of law. Not foreign law, that is -- but our own.

Initially, I had thought this third option made the most sense. Koh's appointment would likely occasion a significant shift in State Department legal doctrine, and conservatives opposed to any form of multilateralism or international treaties might have cause to worry. But then I watched Koh's confirmation hearings, at which one Republican Senator expressed surprise that Koh and others were upset about torture and the Geneva Convention way back in... 2004. I had thought the shari'a flap was cover for more serious grievances with Koh's overall philosophy -- but comments like that make me wonder if these guys even know about it.

That leaves politics. Surely, while there is room for legitimate debate over the use of foreign law in U.S. courts, the merits of that debate are dwarfed by the political hay a few senators can make out of it. In light of Koh's experience, and the breadth of support for him, the debate over foreign law is really just a ploy -- a conspiracy theory put to work as an ideological purity contest, and perhaps as a show of force. It's a demoralizing spectacle, all the more so because of the quality of the man caught in the middle. And because to engage with the "substantive" debate about foreign law is to play into the Far Right's hands, there's almost nothing left to say about it.

Ordinarily, this kind of stalemate ends in two words: Recess Appointment. As long-exasperated commentators know, the Senate is designed to move slowly, which explains how two rogue senators can hold up a confirmation vote (the practice of "holds" is actually not in the Senate rules, but it is a long-recognized part of Senate procedure). But the Senate's "deliberative" nature is balanced by the president's ability to make an appointment without confirmation while the Senate is in recess. Dean Koh's nomination is an obvious case for such an action.

For President Obama, however, a recess appointment may be tricky. Senate Majority Leader Harry Reid bitterly decried George W. Bush's use of the practice, and effectively blocked it for most of 2007 and 2008. Presumably Reid wouldn't do that now, but a recess appointment for Koh won't exactly feel like the winds of change are blowing in Washington.

Yet it's the right choice. Koh's supporters still hope to convince Reid to bring this matter to a vote, even though the rules are murky about his ability to do so. But if Koh doesn't get his day on the Senate floor, it'll be because of pure politics -- and the president should bring a swift political end to this distasteful political episode.