The apparent strategy of most of Harold Koh’s defenders has been to lie low and trust that inattention to Koh’s radical transnationalist views will assure his confirmation by a heavily Democratic Senate. The poor quality of the arguments that defenders of Harold Koh offer on his behalf when they do show their heads is a striking testament to how weak Koh’s positions are.
Consider this Philadelphia Inquirer op-ed yesterday by international law professors Duncan B. Hollis and Christopher J. Borgen, both of whom also blog at Opinio Juris. Hollis and Borgen purport to respond to “a small but vocal group of critics [who have] used op-ed pages and blogs to rail against Koh’s nomination.” But their op-ed sets up and knocks down a series of straw men: e.g., critics of Koh supposedly object to the notion that “international laws … can somehow affect U.S. behavior,” and we “gloss over the fact that the United States willingly enters into treaties that bind it.” There is not a single sentence in the op-ed that actually engages any argument that I have made in my extensive series on Koh’s transnationalism.
The op-ed also misrepresents what is at issue. It is not true that Koh is merely advocating “the educational value of other countries’ experiences in interpreting our Constitution and statutes.” And the debate over customary international law is whether such law has domestic status as federal common law; the Supreme Court’s long-ago declaration that “international law is part of our law” does not speak to that question.
Hollis and Borgen also mislabel Koh’s critics “isolationalists.” The term “isolationist” conventionally refers to someone who disfavors American involvement with the world. It does not speak to the distinct question whether and how international law is incorporated into American domestic law. The idea that, say, Curtis Bradley, Jack Goldsmith, and Dick Cheney are isolationists is absurd. Those who oppose Koh’s transnationalism are better referred to as nationalists, as Koh himself recognizes. It’s particularly striking that Borgen, who recently labored under the misconception that “transnationalist” was an epithet invented by conservatives (when it is in fact a description that Koh embraces), would resort to flinging the cheap and mistaken epithet of “isolationist.”
Hollis and Borgen (like Koh and Justice Ginsburg and other transnationalists) also risibly invoke the Declaration of Independence in support of their transnationalism. But the American revolutionaries observed that “a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation” from Great Britain, and one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” To find in the Declaration of Independence a justification for judicial dependence on, and importation of, foreign and international law is sheer sophistry.