The Washington Independent
The Washington Independent

GOP Hold on Koh Confirmation Comes to an End

Last updated: July 31, 2020 | June 22, 2009 | Daniel James
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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 — “

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. “

It was immediately clear that Koh would not get theenn.) 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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