The Corner

Response to Ted Olson’s Endorsement of Harold Koh

My respect and admiration for Ted Olson know no bounds. But I think his endorsement of Yale Law School Dean Harold Koh for the job of State Department legal adviser significantly misses the point of the good-faith opposition to Koh. Therefore, it merits a response.

As the Politico report phrases it, Ted’s “disagrees” with critics because, Ted says, Koh “is a brilliant scholar and a man of great integrity.” But this doesn’t disagree with anything that’s actually been argued — at least not here. I don’t know Dean Koh personally, but lots of my friends and acquaintances do, and I have read a lot of his work. There is no doubt in my mind that he is a man of great integrity. Moreover, the fact that I happen to disagree with him on many things has no bearing on his brilliance; he is plainly a scholar of great erudition and skill. That is to say, we can stipulate that Koh “is a brilliant scholar and a man of great integrity” — we don’t have a disagreement about that.

This is an argument about policy, not personality, honesty, or qualifications. The mainstream media did not vet President Obama. His transnational progressive positions were not scrutinized — and even though the president is even now on an important trip, crafting new global regulatory arrangements with other heads of state, we still have not gotten anything approximating an examination of Obama’s views. Bluntly, the public has been better informed about Gov. Sarah Palin’s handling of the Alaska State Police than about their President’s fondness for international redistribution of wealth, international treaties, and the transfer of national sovereignty to transnational bureaucracies and tribunals.

#red#Events like the Koh nomination are the only opportunity we have to highlight and generate push-back on these positions. I imagine they are positions Ted would have a lot of trouble with. Here’s what the Politico has to say on that score (my italics):

Olson was sharply dismissive of claims that Koh is too solicitous of international law. While he declined to discuss the specifics of the case against Koh,… he pushed back hard against the broader claim that Koh’s regard for international law is cause for suspicion. “He has been in international law his entire professional life,” Olson said. “Of course he’s very involved in the subject.”

So when it gets down to the only thing Koh’s opposition is actually concerned about, the specific policy positions Koh has taken (e.g., on using foreign law to interpret — and radically alter — provisions of the U.S. Constitution), Ted won’t address it. To say that Koh is “very involved in the subject of international law” is beside the point — what is the likelihood that a president would nominate as State Department legal adviser a lawyer who was not very involved in the subject of international law? 

The germane question is: In the course of that deep involvement, what views has he developed and what positions has he taken? It’s inevitable that the State Department and the administration will soon be confronted with questions like, “What will be the effect on our national security if we push ratification of the Law of Sea Treaty — which provides for disputes to be resolved by a mini-U.N. with its own mini-World Court?” I would think most people take as a given that Dean Koh, as an accomplished international law scholar, is steeped in the relevant issues. The only thing that matters is where he stands on them and what advice he is likely to give — i.e., the things that Ted wouldn’t get into in the interview.

His rationale for that reticence is that the president and the Secretary of State “are entitled to have who they want as their legal adviser.” So then, first the president doesn’t get vetted during the campaign, then the Secretary of State has a hearing that is more like a coronation (and where the only minor brush with scrutiny involved not international law but the Clinton Library), and now we’re told: Don’t bother with issues because the president and the Secretary are entitled to choose their own lawyer. 

Let’s ignore for the moment the facts that (a) Koh is not actually their lawyer but the State Department’s (they can and do have their own lawyers, and no one has tried to interfere with that), and (b) State Department legal-adviser is a confirmation position requiring Senate consent (the hearings would be very short if the only question was: “Do the President and Secretary Clinton want you to serve?”). My question is, if we adopt the scenario Ted suggests:  Is there ever a time — ever, ever — when these issues of great significance to the American people actually get discussed and probed? Do we ever get to find out where everyone stands? Do we ever get to push back?

A lot of people (Ted included) said there should be no opposition to Eric Holder as Attorney General, either. But there was opposition which highlighted, to take just one example, Holder’s urging (in 2008, as an Obama campaign spokesman) that there should be a “reckoning” — investigations and prosecutions of Bush administration officials for actions taken in defense of the United States. Because the opposition highlighted that concern, Republican senators pressed Holder on it, both privately and in his testimony.  They won concessions from him — they say — that there would be no such prosecutions. 

As pressure from the Left mounts, those concessions may be the only thing preventing such prosecutions.  Because the issue got exposure, the Obama administration got a sense of how unpopular such prosecutions would be. And now, the blowback would be even worse because there would not only be reaction to the prosecutions but to the fact that Holder (and Obama) would be seen as having misled Congress. That is additional insurance that the prosecutions won’t happen. From our perspective, yes, Holder got confirmed, but by raising signficant questions we obtained good policy outcomes and limited the Justice Department’s room to go in unwise directions.

There is value in principled opposition. It is not about whether Dean Koh has great integrity (he does) and is a highly accomplished scholar (he is). It’s not even just about whether he gets confirmed. It’s about using one of the few avenues available to us to examine a crucial set of issues and influence policy.

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