Of Koh, Johnsen … and Bork

Astonishingly, a group of Republican Senators is threatening to filibuster the nominations of Dean Harold Koh (for Legal Adviser to the Secretary of State) and Dawn Johnsen (for head of OLC). There appear to be two threads to this campaign. The overt thread is simply based on lies and the occasional irrelevancy. The covert campaign, if reports can be believed, is based on something even more disgusting.

The campaign against Koh is based on the scurrilous allegation that he supports the application of Sharia law in the US. The source for this is the New York Post's reporting of what someone seems to have misheard or misremembered from an alumni event a few years ago. It's bunk. But don't take my word for it, or that of his long-time colleagues, turn instead to well-known lefty Theodore Olson and to Tom Smith, of the Right Coast, who blogs Right wing nuts should not be nuts about Koh.

I do not believe that Professor Koh said let's enforce sharia in the US at some alumni gathering. Possibly some Yale Law Alum thought that was what he said. One of the things I like about having gone to a wealthy law school is that open bars are frequently present at alumni gatherings. But seriously, you don't get to be the dean of Yale Law School by saying stupid things, or at least not that sort of stupid thing.

… Speaking just for myself then, I will say that the right wing critics of Koh are doing an excellent job appearing to be nearly totally ignorant of the relevant areas of law and look like know-nothing attack puppies of anything liberal. As is their right, I suppose. Everyone has to make their own way down the right wing nut career path I suppose. But just maybe they should consider talking to some real conservative international law experts (of which I am not one, but there are some out there) before they shoot off their mouths. Just a thought.

More from Tom in a minute. But first, the Dawn Johnsen case. The ostensible case against Dawn is that she has misrepresented a position she took in litigation relating to abortion law. The charge is wholly false, as detailed in an open letter to Senator Specter from Andrew Koppelman which begins,

It has come to my attention that a footnote in my article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Northwestern U. L. Rev. 480 (1990), has been cited for the proposition that the brief that Dawn Johnsen wrote in Webster v. Reproductive Health Services claims that the Thirteenth Amendment guarantees a woman’s right to abortion. The Webster brief to which my article referred, however, was not the brief submitted by Dawn Johnsen but was an entirely different brief.

Another idea bruited about is that Prof. Johnson isn't up to the job somehow — even though she held the job in an acting capacity for some time in the Clinton administration.

So much for the overt cases. Stupid politics of destruction only somewhat worse and stupider than usual.

The alleged covert manoeuvrings, on the other hand, are much worse. Scott Horton reports,

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

After being one of the first people online to dissect the first torture memos to be released, I've mostly stopped posting about the newer torture memos because so many others were doing it so well. But it bears repeating that there is no excuse for these memos to be kept secret (there might be a case for the occasional redaction, it's impossible to say in the abstract). It's not proved, but holding nominations hostage in order to either keep a cover up in place, or to protect the guilty from whatever consequences may be due for alleged war crimes, would be — if true — a sign of a the ultimate moral collapse on the part of the Senate GOP.

Even if the torture angle turns out to be a red herring, there's still some ugly politics going on here — in part to block Koh and Johnsen from any future court appointments, in part as the rollout of a general campaign of obstruction on all court appointees who don't belong to all-male country clubs or contribute to the Republican party.

The excuse commonly trotted out by saner and more moral Republicans for obstructionist behavior of the overt sort described is that it's simply payback for what they believe was done (unfairly) to Judge Bork (and sometimes Justice Thomas gets mentioned too). There's some of this in Tom Smith posting noted above. The claim is that somehow Judge Bork was subjected to a 'politics of destruction' and that changed the terms of the debate.

There are two major problems with this assertion. The first is that while the overt case against Koh and Johnsen is based on lies, the gravamen of the case against Judge Bork was based on his actual views: he didn't believe there is a right to privacy in the Constitution; this wasn't just about abortion, but also about cases like Griswold v. Connecticut (striking down a ban on condom sales, even to married people). That was a legitimate inquiry, and a perfectly sound reason to turn down his nomination. The howls of rage it produced on the right were because, but for their reframing, the Bork case would have stood for the proposition that right-wing extremists are not welcome on the Supreme Court. In the event we ended up with four of them.

The second major problem with the “Koh is payback for Bork” thesis is that the cases are not parallel. There's much more scope for considering a nominee's views who is up for a judgeship than there is for an executive branch job. Judges have life tenure. Supreme Court Justices have independent power. The people in the executive branch work for the President. (Independent agency officials occupy a middle ground.) I'm not saying there is no scope for inquiring into an executive branch nominee's views. On the contrary, sometimes it's a good way to get the nominee to make promises of future action. Second, there are views or histories that do disqualify someone from having an executive post, and not just the obvious ones like racism, sexism, violent temper (think “John Bolton”), criminal past, tax evasion (yes), or the like. I'd also include people who had committed themselves in their speech or writing to views inimical to the agency's mission. None of this, however, remotely applies here, and none of it justifies even the threat of a filibuster. (I'm not against filibusters – I do think we should go back to the old-fashioned kind where people actually have to hold the floor, though.)

[Note: I was a student of Harold Koh's when he started teaching at Yale. Great course. And Dawn Johnsen was, I think, a year ahead of me in law school. I've stayed vaguely in touch with Professor and then Dean Koh since graduation, but haven't seen Dawn in a very long time.]

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4 Responses to Of Koh, Johnsen … and Bork

  1. Ed Whelan over at NRO (along with his torture buddy Andy McCarthy) have been leading the charge regarding Koh’s alleged “transnational” views and how he wants to subjugate American law to the United Nations of Fluoride or some such. I would be interested in someone actually taking these arguments at face value and debunking them.

    Painfully tedious, I know, but their ostensible arguments do extend beyond the Sharia noncomment (which both Andy and Ed have since disavowed as a sole basis for opposing his nomination).

  2. howard says:

    What’s wrong w/ Sharia Law being enforced in the US? I take offense that it’s just some fringe, whack proposition. If individuals choose Sharia instead of Delaware law in their choice of law provisions of contracts, who are we to judge whether or not that’s right or wrong as long as the Sharia they are using doesn’t violate any fundamental US laws… and even if it does, doesn’t French law in choice of law violate US law sometimes? I’m sure the Yalee wasn’t referring to having criminal courts chop of peoples hands, he was talking about contracts and wills and things like that if he said what the blogs are saying he said. The US Courts should enforce Sharia where parties have freely consented to use Sharia as their system of law to resolve disputes. Canada does it. Why is this such a radical position here? W/all the international attorneys at UM, you’d think some would be sticking up for Sharia.

  3. It does go a way for sure. Of course, not enough for Whelan:


    What’s so squirmy about his attacks is they are one of degree, or emphasis, and therefore cannot be easily refuted. Is it or should it be controversial that we acknowledge that we are one country among many, and that we have to play nice with others in the sandbox?

    From that simple acknowledgement these flat earthers argue that it necessarily means we must be subject to foreign law, and that our laws must bend to those of the French or worse — the darkies.

    There is something weirdly emasculating to Whelan to think that we may have to behave sometimes in accordance with international norms. Having just rewatched Judgment at Nuremberg, I don’t find that prospect scary at all.

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