As usual (and as I may explain more fully in a longer post), Slate’s Dahlia Lithwick gets a lot of things wrong in her essay lashing out at critics of Harold Koh, President Obama’s nominee to be the top lawyer at the State Department. But there is one important point on which I agree with Lithwick: Given the current state of the record, Koh’s critics (a group to which I belong) should not base their case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts. They should not do so, first and foremost, because it is far from clear that Koh actually made any such remark. They should not do so, secondly, because any such remark, even if made, may actually be entirely innocuous and defensible. (Imagine, say, a contract that has a choice-of-law provision that specifies that the sharia commercial law of an Islamic country shall govern disputes over the contract, no matter where the lawsuit is filed; is it clear that U.S. courts shouldn’t look to that law to determine the interest rate, if any, on any amounts past due?) They should not do so, thirdly, because there is so much else in Koh’s record that is both indisputable (as a matter of fact) and highly objectionable. (See, for starters, my posts here and here and John Fonte’s post.)
I hasten to add that the New York Post column by Meghan Clyne that is the special target of Lithwick’s ire is far more balanced and fair on this matter than Lithwick suggests: Clyne gives equal play to Koh’s spokeswoman’s account, which is far from a clear denial.