The transcript (not yet available online, so far as I’m aware) of Harold Koh’s confirmation hearing on Tuesday before the Senate Foreign Relations Committee reveals (1) an utter failure on the part of committee Democrats and ranking Republican Richard Lugar to understand or engage Koh’s radical transnationalist views, and (2) Koh’s deceptive testimony about his views. I’ll address the first matter in this post and the second in my next post.
In his opening statement, committee chairman John Kerry declares that “accusations that [Koh’s] views on international or foreign law would undermine the Constitution, which some have suggested, are simply unjustified.” But Kerry doesn’t confront Koh’s actual views. When Koh writes that the Supreme Court “must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law,” the only way for the Supreme Court to do that “coordinating” is to subordinate the real American Constitution to ever-evolving rules of foreign and international law.
Koh’s own writings amply prove the dual threats that his transnationalist approach to constitutional interpretation poses. First, Koh’s approach threatens to erode cherished First American protections for speech and religion that he disdains as a part of America’s “distinctive rights culture” that he finds “opprobi[ous].” Second, Koh’s approach invents new constitutional rights—against the death penalty and in favor of same-sex marriage, for example—that would usurp the realm of representative government.
Kerry posits that Koh’s statement that he regards the Constitution as “the ultimate controlling law” somehow answers the charge that he would subordinate the Constitution to international and foreign law. But Koh’s seeming assurance is a meaningless dodge, given his real position that the meaning of constitutional provisions can and should be redefined to comport with ever-changing rules of foreign and international law.
Kerry further contends that “[s]ome have actually alleged that [Koh] is against Mother’s day.” If so, that’s the first I’ve heard of it. A quick and incomplete Google search indicates that some of Koh’s defenders have contended that Koh’s critics have made this allegation, but they don’t link to any actual allegation. The actual charge that I have leveled against Koh that involves (as one component) Mother’s Day is that Koh, in his 2002 testimony to the Senate Foreign Relations Committee, failed even to acknowledge, much less confront, the CEDAW committee’s interpretations that undercut his brusque dismissal of supposed “myths and fallacies” about CEDAW—and that he deliberately provided his deceptive testimony. But rather than confront serious evidence that the nominee before his committee, whom Kerry presents as a paragon of integrity, gave shyster-quality testimony, Kerry tries to dismiss the whole matter with a grotesque distortion of the allegation against Koh.
Kerry evidently doesn’t understand how radical Koh’s transnationalism is. Kerry asks Koh whether domestic incorporation of international and foreign law could “happen outside of a treaty that is ratified by the United States Senate,” and evidently expects that Koh will answer no. Koh instead calls the treaty vehicle only “the most obvious way” and refers also to the transnationalist game on customary international law, but doesn’t highlight for Kerry that the transnationalist game on the Constitution is yet another vehicle.
Senator Lugar’s performance is as bad as Kerry’s—even worse insofar as one might reasonably expect a Republican to be more interested than a Democrat in exposing Koh’s views. Lugar misframes the entire nomination battle by quoting at length from the cartoonish coverage of Koh’s nomination provided by Time’s Massimo Calabresi (son of former Yale law school dean Guido Calabresi). Lugar thanks Koh for his “diligence” in responding to Lugar’s written questions, but fails to observe, much less follow up on, any of the troubling aspects of Koh’s answers. And Lugar manages to pose only one question, a softball that asks Koh to “speak again to the problems as you see pragmatically, of the problems of international law” and that mistakenly assumes, contrary to Koh’s transnationalist views, that “significant changes in international law” can come only through Senate consent to treaties.