Thanks to Ann Althouse's blog, I went to a Newsweek story by Stuart Taylor Jr. and Evan Thomas, on the nomination of Yale Law School Dean Harold Hongju Koh to be the top lawyer at the Department of State (the official job of lawyer; Secretary Clinton is, of course, the top lawyer in Foggy Bottom). While Dean Koh is supported by many Republicans, including former Solicitor General Ted Olsen, there are questions being raised about his views on US law and international law. Put another way, Professor Koh is in favor "transnational law."
After saying he should be confirmed, the writers note:
But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because—taken to their logical extreme—they could erode American democracy and sovereignty.There is the rub. Do we want our judges citing folks like Spanish jurist Baltasar Garzón (recently indicted five Bush Administration officials re the question of torture). I have always been a little dubious about one nation reaching out and meddling in the affairs of another at a judicial level. If it is THAT important, let them invade.
Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe's leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan's tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale—but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.
And, the fact is, not everyone has the same standards and values. Referring to the United Nations "Convention on the Elimination of All Forms of Discrimination Against Women," which President Carter signed and which Professor Koh supports becoming US law, the writers note:
A U.N. committee supervising the treaty's implementation has called for the "decriminalizing of prostitution" in China, the legalization of abortion in Colombia, and the abolition of Mother's Day in Belarus (for "encouraging woman's traditional roles"). In 2002 Senate testimony, Koh stressed that these reports are not binding law, and he dismissed as "preposterous" the notion that the treaty would "somehow require the United States to abolish Mother's Day." Still, the reports are very much part of the "transnational" legal process that Koh celebrates.While I trust the assurances of Dean Koh that this kind of thing wouldn't happen, the fact is, there is no way of knowing how some law will be used down the road. We had the first Anti-Trust law and the first use was against a labor union. We had the RICO statute and someone decided it was a good way to deal with those opposed to abortions. Prosecutors are driven people who will be looking for whatever way they can to achieve their ends. This isn't being evil, it is just being a lawyer on the side of the Prosecution. That is why we have some of those amendments to the US Constitution.
In the end, this isn't about Dean Koh. It is about "transnational jurisprudence." I am not sure how we as citizens make a point about the fact that we want US elective assemblies making US laws. We haven't been doing such a good job of that recently. Maybe if we have an egregious example of imposing the laws of some other nation or international body on US Citizens (Mother's Day would surely be an example) and then the US Congress (or some State Legislature) impeached a couple of Justices, it would be a step in the right direction.