I emphatically agree with Ed’s bottom line, but I’m not as inclined as he is to give Dean Koh the benefit of the doubt.
To be sure, it’s not certain Koh made a sharia-friendly remark: We don’t have a transcript or an admission, but we do have an allegation corroborated by a contemporaneous letter repeating the allegation, and a non-denial. (See David Limbaugh, Daniel Pipes, and Carol Iannone for details.)
Now, to widen the lens a bit, Koh is, beyond cavil, a leader (maybe the leader) of the academy’s progressive internationalist wing. That wing, in general, is very cavalier about the perils of legitmizing sharia as part of our law (witness, for example, Harvard’s leadership in the burgeoning field of sharia-compliant finance). To embrace an openness toward sharia in certain circumstances would be thematically consistent with Koh’s known views — just another shade in the gorgeous mosaic of global law for which we should ditch our quaint, dead-white-guys’ Constitution.
So, on a scale of 1 to 10, I’d rate it a solid 7 that Koh probably made a sharia friendly remark. I hasten to add that, assuming he did, I don’t think it would mean he wants to install lashes for 75-year-old ladies as a sentencing option, like our moderate friends the Saudis. Instead, it would mean that, like the State Department, he naively thinks he can control the consequences of opening Pandora’s Box — that we can, for example, write sharia-based “democratic” constitutions for Afghanistan and Iraq and somehow avoid Afghan capital prosecutions for apostasy and blasphemy, or Sistani fatwas calling for homosexuals (or, as Sistani puts it, ”Sodomites”) to be “killed in the worst manner possible.” Again, such a view would be consistent with everything we know about Koh’s jurisprudence: The conceit that we can put politically unaccountable judges, serving only their evolving, subjective notions of “the law,” in charge of our lives and not worry about ending up in a place where pole-dancing is sacrosanct but political speech is illegal.
All that said, though, I agree with Ed that the sharia comment, assuming Koh made it, is small drop in a sea of disturbing Koh information. There being no doubt about the authenticity of that sea, it would be a counterproductive distraction to divert into a “Did he really say it?” debate over sharia.