Volokh Conspiracy: The No on Koh Letter
In April, I signed a joint letter to the Senate Foreign Relations Committee, raising concerns about the nomination Yale Law School Dean Harold Koh to be Legal Advisor to the U.S. Department of State. The No Koh website contains a detailed report on Koh, written by Ed Whelan of the Ethics & Public Policy Center. The website also contains videos, a blog, and a FAQ, although these are aimed more at a lay audience than at persons engaged with legal policy.
While I agree with most, although not necessarily all, of the points made on the No Koh website, my own view on Koh is based on reading six of his law review articles: A World Drowning in Guns, 71 Fordham Law Review 2333 (2003); Is International Law Really State Law? 111 Harvard Law Review 1824 (1998); On American Exceptionalism, 55 Stanford Law Review 1479 (2003); The 1998 Frankel Lecture: Bringing International Law Home, 35 Houston Law Review 623 (1998); International Law as Part of Our Law, 98 American Journal of International Law 43 (2004); Why Transnational Law Matters, 24 Penn State International Law Review 745 (2006).
Deah Koh is an excellent writer and an impressive scholar. But his legal vision is for a substantial diminution of the sovereignty of the American people, and as Legal Advisor to the State Department, he would have tremendous power to advance that vision. As Dean Koh has explained, his writings on transnationalism are not merely descriptive; they are also a strategy for activists. Of course Dean Koh has the right to advocate as sees fit. The Constitution, however, requires that major presidential appointees must earn the Advice and Consent of the United States Senate. The Senate’s duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee’s record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.