Yesterday evening, Senator Harry Reid filed cloture on the nomination of Harold Koh, formerly Dean of Yale Law, to be Legal Adviser to the State Department. There were multiple holds on Koh, so absent administration willingness to make a deal this was the only way forward. It will take every Democratic vote to get to the sixty required.
No matter where you stand on Koh it’s difficult to avoid a sneaking admiration for him. So much of academia at its most public is performance art – even if the issues at stake are serious – and Koh is a superb performer.
Judge Sotomayor’s “wise Latina” comment has already come in for extensive criticism, and Jennifer Rubin, among others, has raised wonderful questions about the “noxious double standard” involved in the Judge’s membership in the all-female Belizean Grove. But Koh’s gotten in on the feminist act too. His views on American exceptionalism, sovereignty, and treaties, among other subjects, have been widely ventilated, but no one has picked up on his 1993 article in the University of Cincinnati Law Review on “Two Cheers for Feminist Procedure.”
On two dimensions – the cognitive and the critical – Koh gives feminist procedure “very high marks.” By cognitive, Koh means that feminist theory, correctly in his eyes, reveals that legal procedure “reinforces certain values which could be called ‘male': individualism, neutrality, formality, separateness, and autonomy” and devalues the female “connectedness, reciprocity, empathy, relationship, informality, and context.” By critical, Koh means that feminist theory has introduced “a new dichotomy – the male/female dichotomy – to the study of procedure.”
I’ve rather lost track of whether feminists believe in innate differences between men and women, or whether they believe it’s all socially constructed. Koh’s not too clear on this either: he says differences are socially constructed, but also claims the dichotomy between men and women will soon be basic to legal procedure. It’s on that basis that Koh applauds the “very substantial contributions that feminist theory can make to the study of [legal] procedure.”
So what’s lacking? Feminist procedure, according to Koh, hasn’t yet – or hadn’t yet, in 1993 – “begun to address a constructive program of reform” to create a world in which “gender issues are taken systematically into account,” in which procedural rules are significantly tailored to the personal attributes – i.e. the gender – of the litigant. That, in Koh’s words, is “the unfinished task.” So, onwards to the world of Judge Sotomayor and the “wise Latinas.”
And then comes the performance twist. Koh’s been around long enough to see the attack coming: he’s asked for feminist procedure to formalize itself, but feminist procedure, according to him, is anti-formalist, formalism being a male virtue. So by asking this, he’s revealed his own complicity in the gendered nature of justice. He parries with the skill of a judo master, with a mea culpa that he is, after all, a man – more essentialism – and that it’s important for feminists to “reach out beyond the converted” if “we” are to move to a “distinctively feminist procedure.”
As performance, this is wonderful stuff. But as law, it is – well, it is not law. It is procedure made anew for every case. In other words, it is arbitrary. It is also a ridiculous slander on both men, who are capable of appreciating context, and women, who are capable of being neutral. And that is one of the worst things about the kind of justice Koh, and Sotomayor, are espousing: far from condemning legally-approved social separation as inherently unjust (as liberals used to), they are actively promoting it in the name of their brand of justice.