Andy McCarthy and Ed Whelan held a blogger conference call today on the nomination of Harold Koh as legal adviser to the State Department. Whelan’s extensive writings on Koh can be found here. In short, McCarthy and Whelan argue based on voluminous review of Koh’s extensive writing, and specifically Koh’s self-described adherence to “transnationalism,” that Koh seeks to impose a radical view of American law and advocate its subservience to international law. What does this mean? Whelan explains that in this world view international law and norms “supplant ordinary processes of representative democracy.” The Supreme Court, in Koh’s view, should import international law to erode what Koh disparages as America’s “distinctive rights culture” (this is a bad thing in Koh’s view). In Koh’s vision the Supreme Court should invent new rights and apply treaties — even those not ratified by the U.S. — to override domestic law. While this may seem remarkable, even unbelievable, in its extremism, Koh’s ample scholarship clearly supports this summary.
I asked why then there hasn’t been more opposition within the Senate, where his nomination was passed from a committee by a 12 to 5 vote with Sen. Richard Lugar voting “yes.” (Further information on Koh’s views and the progress of his nomination can be seen here.) The answer: in some sense Koh has benefited by the notion that he “can’t possibly be this bad” — yet his views are indeed nearly unprecedented for any potential high-ranking U.S. official. McCarthy suggested that moderate Democrats reconsider whether Koh’s extremism is really a philosophy with which they want to identify. After all, as McCarthy explained, Koh views the Iraq war as a violation of international law because it was not authorized by the UN, leaving the inevitable conclusion that those who nevertheless voted to authorize use of U.S. forces are guilty of war crimes.
It is worth noting that if we have learned anything in the last month, it is that Obama seems to have no stomach for fights in defense of the extreme Left’s agenda. If presented with robust opposition, would he go to the mat for this nominee? I think that’s highly doubtful.