It’s long been my experience that many liberal legal academics are surprisingly unable to engage in reasoned legal argument. The latest example that’s come to my attention is Arizona State law professor Laura Dickinson’s response to my remarks about Harold Koh. Contending that criticisms of Koh “have gone from silly to absurd,” Dickinson takes issue with (in fact, labels “absurd”) the opening sentence of the introductory post in my series on Koh, where I stated:
In a series of posts, I will explain how State Department nominee Harold Koh’s transnationalist legal views threaten fundamental American principles of representative government and how Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage.
But despite the fact that her response comes after I have published three additional detailed posts about Koh, she doesn’t respond to any of the supporting arguments that I have already provided. (And I’ll have much more to come.)
Dickinson also contends:
Ed Whelan has argued that Koh’s approach to transnational legal process would allow “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” This is clearly incorrect. Koh’s book, The National Security Constitution, is all about how Congress and the executive branch both have an important role to play in pursuing national security issues. Thus, Koh’s vision of how national security matters should be debated actually gives more power to Congress – something Republican senators should want – than the Bush Administration’s policy of executive branch supremacy.
Set aside that, after several Google searches, I’m not quite sure where the quote that Dickinson attributes to me comes from. I don’t dispute that the quote, even if Dickinson’s own invention, is a fair paraphrase of my position. [A later thought: Perhaps Dickinson is quoting from a transcript of a brief television or radio appearance of mine. If so, it’s all the more amusing that she would bother to consult such a transcript but not trouble herself to address the detailed arguments in my posts.]
But Dickinson’s supposed rebuttal is an obvious non sequitur. I’ll readily assume that her account of Koh’s book is accurate. So what? The fact that Koh believes that “Congress and the executive branch both have an important role to play in pursuing national security issues” does not remotely disprove the proposition that transnationalism would enable “international elites to subvert the will of democratically elected leaders in the executive and legislative branches.” Might someone respond to my actual supporting arguments?