Bench Memos

Newsweek on Harold Koh

In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser.  As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect.  And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.”  That said, I have a correction and a broader comment.

First, the correction:  Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.”  [Update (4/22):  In an e-mail to me, Taylor has graciously acknowledged that his and Thomas’s assertion was erroneous.]  In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore.  That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.”  And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee. 

That correction feeds into a broader comment:  I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are.  They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.”  But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post).  The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.”  I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office.  I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are.  But the more I explored, the more extreme Koh turned out to be.

In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character.  Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing. 

Most Popular

Media

How American Journalism Died

In 2017, the liberal Shorenstein Center on Media, Politics, and Public Policy at Harvard University found that 93 percent of CNN’s coverage of the Trump administration was negative. The center found similarly negative Trump coverage at other major news outlets. The election year 2020 has only accelerated ... Read More
Media

How American Journalism Died

In 2017, the liberal Shorenstein Center on Media, Politics, and Public Policy at Harvard University found that 93 percent of CNN’s coverage of the Trump administration was negative. The center found similarly negative Trump coverage at other major news outlets. The election year 2020 has only accelerated ... Read More
U.S.

Zoomers and the Constitution

A 2019 study by the Pew Research Center compared generational views on key social and political issues, focusing on the similarities between Millennials and Generation Z. The topics probed include race relations, diversity, climate change, capitalism, socialism, and the role of government. This last item, ... Read More
U.S.

Zoomers and the Constitution

A 2019 study by the Pew Research Center compared generational views on key social and political issues, focusing on the similarities between Millennials and Generation Z. The topics probed include race relations, diversity, climate change, capitalism, socialism, and the role of government. This last item, ... Read More
Elections

Is the Biden Campaign Struggling?

On the menu today: a long, long list of Democrats warning that the Biden campaign may not be as strong as it looks in key states and among key demographics; another former White House staffer comes out and denounces the president, offering a hard lesson about how personnel is policy; and a long look at the ... Read More
Elections

Is the Biden Campaign Struggling?

On the menu today: a long, long list of Democrats warning that the Biden campaign may not be as strong as it looks in key states and among key demographics; another former White House staffer comes out and denounces the president, offering a hard lesson about how personnel is policy; and a long look at the ... Read More

The Last Days of Robin Williams

After Robin Williams hanged himself in 2014, the media speculated that financial troubles or depression related to drug or alcohol use might have been the cause. Without discussing those topics, Williams’s widow, Susan Schneider Williams, is eager to set the record straight and does so in Robin’s Wish, a ... Read More

The Last Days of Robin Williams

After Robin Williams hanged himself in 2014, the media speculated that financial troubles or depression related to drug or alcohol use might have been the cause. Without discussing those topics, Williams’s widow, Susan Schneider Williams, is eager to set the record straight and does so in Robin’s Wish, a ... Read More

In Praise of Trade School

About a decade ago, I participated in a discussion hosted by the chamber of commerce in a university town about state policies regarding higher education. I’ll never forget the first comment I got from one of the attendees. “The problem with your presentation,” she said, “is that it didn’t focus ... Read More

In Praise of Trade School

About a decade ago, I participated in a discussion hosted by the chamber of commerce in a university town about state policies regarding higher education. I’ll never forget the first comment I got from one of the attendees. “The problem with your presentation,” she said, “is that it didn’t focus ... Read More
World

Why Trump’s Mideast Peace Deals Matter

After Israel’s resounding victory over the Egyptian, Jordanian, and Syrian armies in 1967, the Jewish state again offered the Arab world peace in exchange for recognition. And it was again rebuffed. Instead, the Arab League convened in Khartoum to formulate a consensus response that became known as “The 3 ... Read More
World

Why Trump’s Mideast Peace Deals Matter

After Israel’s resounding victory over the Egyptian, Jordanian, and Syrian armies in 1967, the Jewish state again offered the Arab world peace in exchange for recognition. And it was again rebuffed. Instead, the Arab League convened in Khartoum to formulate a consensus response that became known as “The 3 ... Read More