GOP Hold on Koh Confirmation Comes to an End

Monday, June 22, 2009 at 9:58 pm
Harold Koh at an April 28 Senate confirmation hearing (Zuma Press)

Harold Koh at an April 28 Senate confirmation hearing (Zuma Press)

On Monday, nearly four months after President Obama nominated Harold Koh to become legal adviser to the State Department, Sen. Harry Reid (D-Nev.) filed cloture and moved his nomination to the floor. Confirming the dean of Yale Law School to a powerful but usually uncontroversial position had proven harder than either his supporters or his detractors could have expected.

“When you consider Dean Koh’s impressive resume,” said Steven Groves, a fellow at the Heritage Foundation who signed a conservative coalition’s letter opposing Koh’s nomination, “this process should have been more of a coronation than a fight. It’s only become a fight because serious issues were raised on his views of transnational law.”

Image by: Matt Mahurin

Image by: Matt Mahurin

Koh’s qualifications for the State Department job have never really been in dispute. A veteran of both the Reagan and the Clinton presidencies, a summa cum laude graduate of Harvard Law School who counts Sen. Russ Feingold (D-Wis.) and Alan Dershowitz among his friends, Koh’s nomination was welcomed by several influential Republican lawyers. Ken Starr, the former Clinton foe who is now Dean of Pepperdine University Law School, remembered Koh as a “vigorous adversary” but commended him to the U.S. Senate as a “truly great man of irreproachable integrity.” Ted Olsen echoed Starr, calling Koh a “brilliant scholar and a man of great integrity.” John Bellinger, who served as George W. Bush’s final legal adviser to the State Department, welcomed Koh as a “well qualified” candidate who “should be confirmed.”

After all of that came months of attacks, wrangling, and stale-mating over Koh’s thinking on “transnational” law and belief that American jurisprudence should respect for “the opinions of mankind,” as he put it in 2002. This reached a certain level of farce last week, when Koh’s brother Howard was confirmed, controversy-free, to a post in the Department of Health and Human Services. And the saga may or may not end with Koh’s confirmation. The majority leader is “optimistic we will have the 60 votes needed,” according to spokesperson Regan Lachappelle. But on Monday afternoon, Reid saw that Republicans “would not agree to an up or down vote” and that Democrats had “no choice but to file cloture.” All sides expect a contentious, tip-and-tuck vote, and Democrats are prepared for a debate that could last several days if outspoken opponents of the nomination such as Sen. Jim DeMint (R-S.C.) decide to drag out the process.

Whatever the result of the vote, conservatives are ready to declare some small victories. Koh, long seen as a possible nominee for the Supreme Court, has been widely portrayed as a judicial radical and supporter of international law who — in the words of Fox News host Glenn Beck — “may shred the Constitution in favor of international law.” In the process, a small group of conservative activists have moved ahead the idea that American sovereignty is under attack from international treaties. Some argued that the delays revealed a lack of confidence from congressional Democrats that they could win a pitched, public debate over “transnationalism,” although the filing of cloture on Monday suggested that Democrats are ready to take some heat over an issue that remains fairly obscure.

The Koh nomination became a cause for some conservative activists despite — or perhaps because of — early support from Sen. Richard Lugar (R-Ind.), the ranking member of the Senate Foreign Relations Committee. At the April 28 hearing on the nomination, Lugar read apologetically from a Time magazine article on right-wing attacks from the likes of Glenn Beck and John Bolton. “Without going into the problems of the Republican Party any further,” said Lugar, to audible laughter, “there is some substance to this type of atmosphere that has been created, not only in the blogosphere but in Time Magazine and elsewhere.” Lugar explained that the primacy of the Constitution was “a source of concern for many Americans.”

Koh argued that his much-cited work on “transnational” law should not present much cause for concern. “The basic theme of all of my writing,” he said before the committee, “is that a partnership between the president and Congress protects our foreign policy and supports our Constitution, and that a partnership with our allies — done well, correctly, within the law, protects our sovereignty and makes us safer.”

It was immediately clear that Koh would not get the same deference from the rest of the committee’s Republican members. Conservative activists and lawyers who were familiar with the long campaign against Koh — one recalled speaking at as many as a dozen meetings on the risks his nomination presented — were active in providing skeptical Republicans with quotes from Koh’s speeches and troublesome arguments such as his 2004 statement that the United States had joined an “axis of disobedience” in flouting international law. At the April 28 hearing, Sen. Bob Corker (R-Tenn.) informed Koh that he had been “watching the body language” and saw the dean “reading the answer” about international law. “You know, you’re the dean of Yale Law School and probably one of the most knowledgeable people to ever come before this group as it relates to law. But it did appear to me that you were reading that answer and I’m just wondering if you might speak to that, because typically, when people do that they’re sort of tight roping down an issue that they’re concerned there may be some baggage on. Maybe I saw wrong.”

In the end, Lugar was the only Republican member of the committee to vote for Koh. On Monday, his spokesman Andy Fisher confirmed that Lugar would vote for Koh, and that “nothing had changed” since the hearing. Spokesmen for the other Republicans on the committee did not comment to TWI. But conservative activists outside of the Senate, who still see a possibility of defeating Koh (“he could wash his hands of the whole thing and go back to Yale,” said one activist), said that the new attention on “transnational” law and the possibility of slowing down Senate business made the battle worthwhile. (One activist, who was interviewed by TWI before Democrats moved for cloture, speculated that Republicans could “get something,” such as a delay in the ratification of the Law of the Sea Treaty, if they made some demands of Democrats.)

“Since the administration is trying to do a serious number of bad things,” explained Grover Norquist, the president of Americans for Tax Reform who signed a letter opposing Koh’s nomination, “everything that slows it down stops another bad thing it wants to do. Now, there is an argument against just saying ‘no’ or just stalling on everything. That is why, ideally, you can have a fight about an issue — Harold Koh’s thinking on international law is a serious issue that affects gun rights, for example — and you can slow the bad stuff down. That’s the best of both worlds.”

While conservatives argued that Koh’s views could become a flash point for more controversy — something Democrats seemed to acknowledge by holding off for so long on a debate and a vote — there is no evidence that a battle in the Senate would boost Republicans. In 2005 and 2006 the party invested plenty of political capital in the nomination of John Bolton for U.S. ambassador to the United Nations, and they were bolstered by the kind of outside pressure groups that never arose to promote Koh. Still, polling revealed that Bolton’s firey rhetoric and denunciations of international law did not win over voters.

“The odds are against it becoming a defining feature of the national debate,” said Scott Rasmussen, an independent pollster who has conducted surveys about Americans’ views of international law and the United Nations. “But if you were a Senator in a competitive race, would you want a 30-second commercial saying you voted for a nominee who wants Americans to live under international law?”

Even if Koh is confirmed this week, one activist who had met with Republicans about the nomination was confident that the State Department’s work had “not moved as fast as it could have” in strategizing for the ratification of new treaties as a result of the slowed-down process. John Bellinger, the former Legal Advisor who still supports Koh’s nomination, confirmed that analysis. “It will be difficult,” he said, “for the career lawyers [in the State Department] to take new or potentially controversial positions on international law or domestic litigation issues without guidance from a new political appointee.”

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Comment posted June 23, 2009 @ 1:40 pm

“Harold Koh’s thinking on international law is a serious issue that affects gun rights”

Well done Grover… way to perpetuate the myth that the mean ole Democrats will take your guns away. Talk about a one-trick pony… but at least he kept “tax cuts” out of the argument for a change.

That said… I so glad that we have solved all of the problems this country is facing that we have enough time to debate the merits of letting qualified people work for the governement.

Anthony Clark Arend » Cloture filed in nomination of Harold Koh as Legal Adviser at State
Pingback posted June 23, 2009 @ 4:42 pm

[...] Washington Independent reports: On Monday, nearly four months after President Obama nominated Harold Koh to become legal adviser [...]

A Conservative Argument for Confirming Harold Koh » Undiplomatic
Pingback posted June 23, 2009 @ 4:51 pm

[...] Dave Weigel and Lara Rozen have already reported, Senate Majority Leader Harry Reid (D-NV) yesterday filed for [...]

Opinio Juris » Blog Archive…. A Conservative Argument for…. | Total Info
Pingback posted June 23, 2009 @ 7:30 pm

[...] “When you consider Dean Koh’s impressive resume,” said Steven Groves, a fellow at the Heritage Foundation who signed a conservative coalition’s letter opposing Koh’s nomination, “this process should have been more of a coronation than a fight. It’s only become a fight becausRead more at [...]

Comment posted June 23, 2009 @ 6:55 pm

Anything Grover Norquist does, I'M AGAINST!
these guys are melting and they're desperate. That old way of thinking, man, they should be so damned embarrassed. Their free trade isn't free, when I have to bail them out.
They hate America and Americans, lyin' thieves

Comment posted June 23, 2009 @ 7:05 pm

The Republican obstructionism has become so sickening. I am glad that Senator Reid has decided to move things forward. I hope this is the beginning of more actions by the Democrats to finally stand up and utilize the mandated afforded them by the American people!

David Aldridge
Comment posted June 23, 2009 @ 7:06 pm

Jeninoh, you might want to step back and realize that men with guns bought and have paid dearly for your right to spout off at the mouth about” one trick ponies” A simple gun ban is too obvious and unatainable for the Obama crowd. Let's go through the back door and get the UN to declare them illegal. Then we can say, ” we have to go along with the UN or look bad in the eyes of the world”.I'm sure Mr. Koh is a ” qualified candidate”, but I for one do not like his views on worl law being supreme.

Comment posted June 23, 2009 @ 7:12 pm

David Aldridge, I guess you're riding on that one trick pony jeninoh was talking about.

Comment posted June 23, 2009 @ 7:20 pm

As long as Koh's “transnational” ideas of law stays within the round table of Dept of State policy wonks and doesn't infect “stare decisis” in the US, it is a non-issue. The use of “Sharia” law, for example, would not be a good fit for us. We will suffer through and survive Koh as he likely won't be able to do much damage as a Dept of State international busybody. The only possible threat would be in international trade where he could influence the leveraging the laws of a foreign country against the US in a Diplomatic setting. It is almost a certainty that he will position himself against the interests of the US in a “transnational” legal debate, given his obvious interest in this concept.

Comment posted June 23, 2009 @ 7:23 pm

In other words, the black helicopter crowd is freaked out by him.

I'm really tired of the way our country has been held hostage by their nutty fears.

Comment posted June 23, 2009 @ 7:36 pm

What Beltway hacks – the GOP, the Dems, and minor league hacks like Weigel – don't want to tell you is that Harold Koh either supports illegal activity or is too dumb to figure out that he supports it. Walking him through what he supports would be a great way to block him, but the GOP and hacks like Weigel aren't going to do it. If anyone wants to prevent him being confimed, go to one of his public appearances and walk him through what he supports on video, and then upload it to Youtube.

Comment posted June 23, 2009 @ 8:15 pm

Its about time the Dems stop trying to work with the Republicans as they will only continue to be the Party of “NO”. Lets move on and let the Republicans whine and moan like little kids.

Comment posted June 23, 2009 @ 8:27 pm

So the guy that signed the letter opposing his confirmation, now says he should have been confirmed easily and has great qualifications. Got It.

Not hypocritical at all.

Comment posted June 23, 2009 @ 9:29 pm

As long as Koh's bizarre concept of “transnational” law doesn't infect “stare decisis” in the US, we can probably suffer through him as an international busybody for the Dept of State.

Comment posted June 23, 2009 @ 10:59 pm

Why are you quoting a lunatic like Glenn Beck? He's a fringe opinion merchant with ZERO journalistic credibility. Including his commentary devalues your entire article.

Yale Law School, At Least, Is Confident Koh Will Be Confirmed | The Lie Politic
Pingback posted June 24, 2009 @ 12:14 am

[...] Dave reported yesterday, nearly four months after President Obama nominated Koh, who faced some stiff Republican [...]

Comment posted June 23, 2009 @ 11:21 pm

It is interesting that the Republicans and taking Nancy's advice so seriously…. “JUST SAY NO!”
No matter what comes before them, they always say NO. The Republicans are quickly becoming a fringe group that is so out of touch with Americans. They will soon bury themselves.

Comment posted June 24, 2009 @ 1:42 am

Let the majority use its power to counter the legislative stalling by the minority party. The Dems have been so nice in their effort to attain bipartianship. We need to move a fair amount of work to make up for the inaction of the last eight years. There are consequences that come with the majority status. The GOP has shown it is interested mainly in stalling and grandstanding. Now that the party has almost fallen apart it is mostly stalling. Reid and the leadership must take control of the legislative calendar and put an end to gamemanship by the GOP. Such responsibility come with the majority status confered by the voters.

Comment posted June 24, 2009 @ 2:40 am

Think of the Wizard.

I am 85 and still waiting for the Democrats to find out that the repubs are not as powerful as the monsters they dream about. The Dems should have won this fight also a long time ago. They are complicit by their cowardice in keeping this and other Departments do its work by cowering for an unproven power.

Stand up and be counted. (the same goes for the Health debate, dont ask dont tell, Ms Sotomayor and a number of other issues).

Dare them. They're human, at least by appearance.


Comment posted June 24, 2009 @ 3:46 am

Republicans have become the “know nothings” of the 21st Century. The so-called “issue” against Koh has nothing to do with the Constitution, as we have seen the Republicans shred the Constitution at every chance they get when it comes to the First and Fourth Amendments and other protections against the unconstitutional presidency of Bush. Koh's position is far more protective of the Constitution than the Republicans who are really only speaking as the mouthpieces for their corporate funders. The Republicans are only protecting corporate profits, not the Constitution.

Comment posted June 24, 2009 @ 5:17 am


Comment posted June 24, 2009 @ 10:26 am

Mr. Koh may have wonderful academic credentials, deserving of due respect.

However, I must oppose his confirmation to this important position because of his statements that US law should defer (conform) to international law. Given Mr. Koh's, the current Attorney General's and President Obama's support for restricting our right to keep and bear arms, there is a very good chance that they will use such reasoning to impose “international” laws or treaties restricting the availability of guns (or ammunition) in our country.

The potential for imposing gun control through international laws is not the only problem with his “transnational” position, but it is a very important one. The people who founded our nation believed that each of us (as individuals, not as some “collective”) have inalienable rights, including the right to arm ourselves, individually, in order to defend those individual rights.

With all due respect, gregorywonderwheel, the fact that certain politicians of one party have violated the constitution does not justify other violations by politicians of a different party. Often when I disagree with some policy of the current presidential administration, fans of our current president bring up the horrible violations of our constitution by the previous one, which I deplore as well. Is the idea that every president should be allowed to violate our rights at least as much as those who came before him? I reject that.

I heartily encourage any member of Congress (no matter of which political party) who respects the rights granted to us US citizens by our constitution to vote against Mr. Koh's confirmation and to vocally oppose it. I am not a “Republican” or a “Democrat”. I am a concerned US citizen.

Marie B
Comment posted June 24, 2009 @ 12:47 pm

Obstructionists at every turn. No. No. No. It's becoming quite boring.

Sugarpuss O'Shea
Comment posted June 24, 2009 @ 12:55 pm

Here, Norquist. Wipe the foam off your mouth.

Comment posted June 24, 2009 @ 2:27 pm

Well, Marie B., perhaps you would have found much more exciting the heady days during the rise of the National Socialist party in Germany, or the days when Chairman Mao was consolidating power in China, or perhaps when Stalin was really lining up his people in the good old USSR. They all had their resistance to overcome, but it could be that some of us Americans cling more tenaciously to what liberties we have left.

I suppose it must be awfully boring for some people to see how doggedly other freedom-loving people resist the rise of great socialist leaders and try to thwart the “progressive” agendas that are supposed to work for the ill-defined “Greater Good”. I myself take heart that some of us still resist.

Comment posted June 24, 2009 @ 5:32 pm

Why didn't you mention the 7 other Republican senators who voted for cloture? All of moderates voted for cloture. Only the extremists voted against cloture.

Yo Lanimal, So far the administration has expanded gun owner rights by allowing guns in national parks. That is just extremist hate talk to get the radicals to grab their guns and head into a museum, abortion clinic or maybe shoot a few cops in PA. The hate talk is working.

Comment posted June 25, 2009 @ 1:17 am

No, richlanum, my statements are not “hate talk”.
I am only concerned about protecting my rights and the rights of my fellow citizens.

My family has owned guns for generations (four that I know personally), and I know of no incident in which any member of my family has shot anyone (although perhaps some of my great uncles, when serving in WWII might have). Most of us gun owners are not hateful killers. It is not hateful to try to defend one's rights be opposing the confirmation to a government job of someone who has stated that he wants to revoke those rights. I have tried to express my opinions calmly and respectfully.

Comment posted June 25, 2009 @ 4:58 am

I do not hate Mr. Koh. I even respect and agree with some of his opinions. (I also deplore our former presidential administration's attempts to justify torture.) Still, I cannot in good conscience support his confirmation to this position, because of his own stated positions.

In the interest of clarifying why I object to Mr. Koh's nomination, I will post some quotes from his lecture “A World Drowning in Guns” (Fordham Law Review, Vol. 71).

On page 2342 (from the bottom of first paragraph):
“Those seeking to create and embed certain human rights principles into international and domestic law should promote transnational interactions, that generate legal interpretations, than can in turn be internalized into the domestic law of even skeptical nation-states.
Applying this approach to developing a global regulatory solution for small arms and light weapons, we can break down the problem into five stages:”
“Fourth, “horizontal process”…
The goal, as I have specified elsewhere, is creating a law-declaring forum that can operate at the global level to declare and international norm against the illicit sale, transfer and use of small arms and light weapons…”
“The fifth and final step I call “vertical process”, the process whereby rules negotiated among governments at a horizontal, intergovernmental level and interpreted through the action of transnational actors in these law-declaring fora are brought down vertically into the domestic law of each participating country –”brought home”, if you will– and internalized into the domestic statutes, executive practice and judicial systems of those participating nations.”

I oppose the confirmation of someone who wants to impose on us the citizens of the USA laws created by “law-declaring fora” composed of government bureaucrats (and maybe politicians) from various countries, none of whom are beholden to the people of our country (save perhaps a few from the US government, but even they would more likely be appointed than elected).

If that so-called “law-declaring fora” decides that no individual has the right to keep and bear arms (or do anything else), we in the US are not obligated to change our laws and surrender our rights. I am wary of any such international law-declaring fora, so far removed from the interests of, and not directly elected by, the people of any country.

One of the important founding principles of our country is that power corrupts, and therefore that those who make the laws should be elected by the people, and that the powers of the government should be strictly limited by our Constitution.

S. Lan Smith

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Pingback posted July 17, 2009 @ 11:25 pm

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[...] GOP Hold on Koh Confirmation Comes to an End Reid Calls for Cloture Vote on State Department Legal Adviser Nominee  By David Weigel 6/22/09 9:58 PM On Monday, nearly four months after President Obama nominated Harold Koh to become legal adviser to the State Department, Sen. Harry Reid (D-Nev.) filed cloture and moved his nomination to the floor. Confirming the dean of Yale Law School to a powerful but usually uncontroversial position had proven harder than either his supporters or his detractors could have expected. [...]

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Comment posted August 20, 2010 @ 8:38 am

I cannot in good conscience support his confirmation to this position, because of his own stated positions.

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Pingback posted October 9, 2010 @ 6:07 pm

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