As I discussed in Part 1, Harold Koh’s judicial transnationalism provides camouflage for him to do the old “living constitutionalist” gambit of translating his policy preferences into the guise of constitutional law. From the evidence I’ve reviewed, Koh has the policy preferences of a hard-left ideologue, and there is little if any space between the policies that he favors and his positions on what the Constitution requires. (If any reader is aware of contrary evidence, please let me know.)
This flattering profile of Koh in the Yale Daily News from April 2007 contains this precious passage in which Koh trips over himself in his race to be politically correct:
Asked to list his most closely-held legal positions, he lists gay rights at the top. Then, correcting himself, he adds, “lesbian and transgender” rights to the mix.
As Koh’s push for recognition of a constitutional right to same-sex marriage makes clear, Koh believes that gay and lesbian rights include a right to same-sex marriage. I confess that I’m not au courant on what’s on the transgender agenda, but I’d guess that it includes misreading existing employment discrimination laws to cover the transgendered and requiring insurance coverage of re-gendering operations. In any event, Koh seems eager to position himself on the cutting edge.
Koh’s political passions have regularly driven his legal judgment haywire. For example, Koh submitted an amicus brief in Rumsfeld v. FAIR that argued that the Solomon Amendment—which conditions federal funding to universities on their providing equal access to military recruiters—violated the First Amendment rights of Yale law professors. The Supreme Court’s ruling was unanimous in favor of the constitutionality of the Solomon Amendment: not a single justice adopted Koh’s position. And, according to the Yale Daily News, “despite a 8-0 smack down by the Supreme Court in the military recruiting case Rumsfeld v. FAIR, Koh still refused to grant ROTC equal access to the Law School.”
Koh was also part of the ABA task force that produced a shoddy report concluding that the long-established presidential practice of using signing statements to express disagreement with provisions of a law being signed is unconstitutional. Academics across the political spectrum ridiculed the task force’s report. As I concluded my Weekly Standard essay:
It is a sorry testament to the state of legal academia today that prominent academics on the task force–including Yale Law School dean Harold Koh, Harvard law professor Charles Ogletree, and Stanford law professor Kathleen Sullivan–would sign off on such a report. Either these academics actually agree with the report or, though disagreeing (or perhaps not having read it with any care), they are willing nonetheless to lend their names and reputations to it. Neither explanation does them any credit.
This passage from a 1994 New Republic article by Jeffrey Rosen (on the “emotional jurisprudence” of Justice Harry Blackmun) is also telling:
Why should liberals care if Blackmun was an indecisive, unsophisticated craftsman, unconcerned about dressing up his humane impulses in legal reasoning? “I’d rather have Blackmun, who uses the wrong reasoning in Roe to get to the right results, and let other people figure out the right reasoning,” says Harold Koh of Yale, a former Blackmun clerk.
Koh also has the intellectual temperament of an ideologue. As one Yale law professor has charitably put it (in the Yale Daily News article above), Koh “tends to wear his convictions on his sleeve.” Others have found him to be a bully who uses his position of power to intimidate younger scholars into not contesting Koh’s cherished positions.
Hardly the makings of a quality Supreme Court justice.