Anthony Clark Arend

Yale Law School Dean Harold Koh

It is quite unfortunate that there has been any opposition to the appointment of Yale Law School Dean Harold Koh to be Legal Adviser at the Department of State. Koh is a brilliant, world-reknowned international legal scholar who previously served in a variety of U.S. Government posts, including Assistant Secretary of State for Human Rights, Democracy, and Labor during the Clinton Administration. Koh’s confirmation hearing will take place tomorrow.

Professors Duncan Hollis and Christopher Borgen have an excellent op ed in today’s Philadelphia Enquirer urging the confirmation of Dean Koh. They explain that

Koh’s numerous supporters include top attorneys from Democratic and Republican administrations, as well as leading conservative lawyers such as Kenneth Starr and Theodore Olson. Add to this the presumption that a president can pick his advisers, and Koh’s confirmation seems assured.

But, Hollis and Borgen note, that

a small but vocal group of critics has used op-ed pages and blogs to rail against Koh’s nomination. They argue that his support for “transnational” law threatens American sovereignty and the Constitution’s supremacy. Such charges have produced caricatures of Koh and the American legal system that are incomplete and inaccurate.

Hollis and Borgen explain:

Koh’s critics conflate two issues: first, international law’s effect on U.S. law, and, second, the use of foreign law to interpret the U.S. Constitution and statutes. Neither topic is original to this dust-up; isolationists have long favored governing America with an inward eye, entirely independent of the rest of the world. Proponents of international engagement, by contrast, invoke an American tradition of valuing international law and the lessons of other countries’ experiences.

The idea that there are international laws that can somehow affect U.S. behavior may appear antithetical to ideas of American independence or sovereignty. But, as our nation’s founders repeatedly recognized, international law actually preserves U.S. sovereignty. It helps ensure that other nations respect U.S. products and citizens beyond our borders; engage in joint responses to common problems, such as terrorism and piracy; and agree to basic standards of behavior, such as the prohibition on genocide.

Koh’s critics gloss over the fact that the United States willingly enters into treaties that bind it. Pursuant to Article VI of the Constitution, these treaties constitute “the supreme Law of the Land,” equivalent to federal statutes and binding on state judges. With respect to international customs that rise to the level of legal obligations, the Supreme Court long ago declared that such “international law is part of our law.”

The United States can still avoid these rules by objecting to them from the beginning or, through Congress, overriding them later. And their interpretation remains firmly in U.S. hands. However, while Koh and his critics may debate the content of international law, it is far too late to suggest we can ignore it.

Similar misunderstandings permeate claims that Koh would let “foreign” laws govern U.S. court cases. Neither Koh nor any serious American lawyer disputes the Constitution’s supremacy within the U.S. legal system. What Koh has advocated – along with many others – is the educational value of other countries’ experiences in interpreting our Constitution and statutes.

At least six current and former Supreme Court justices have endorsed using foreign materials this way. Today’s justices cite law review articles, social science studies, and even Gilbert & Sullivan in their opinions. Why not also the experiences of foreign judges? Doing so does not give foreigners control over the Constitution any more than citing a show tune gives composers that power. Foreign laws never bind U.S. judges, but they can be a useful resource.

Suggestions that Koh’s appreciation of foreign and international law is somehow un-American misrepresent who we are as a nation. International law and a willingness to learn from others’ experiences are part of our DNA.

One opponent expressed horror at Koh’s willingness to examine U.S. law with a “decent respect to the opinions of humankind.” Critics would do well to consider that phrase’s origin: the Declaration of Independence. Koh’s respect for international law and the experiences of other peoples does not deny the greatness of America and our Constitution; it affirms it.

Well said!

I have known Harold Koh for about a decade and have followed his career. I am convinced that he will be an outstanding Legal Adviser– following in the great tradition of  distinguished attorneys like Green Hackworth, Ernest Gross, Monroe Leigh, and William Howard Taft, IV.  I hope that his hearing does not turn into a circus, but rather allows for a showcasing of his impeccable qualifications for the position.