Come for the Politics, Stay for the Pathologies

Tuesday, March 31, 2009

Another Moderate Selection

One couldn’t stray much further off the middle of the path than with the selection of Harold Koh as special legal counsel to Secretary of State. He’s currently Dean of the Yale Law School, which should tell you all you need to know, but there’s much more.

Back in September he was considered a candidate for the Supreme Court. Is he moderate? Compared to whom, Stalin? In that contest, Trotsky might be considered moderate too.

Ed Whelan at NRO identified Mr. Koh as a leading proponent of transnationalism, which Koh himself explains:

“The Supreme Court has now divided into transnationalist and nationalist factions, which hold sharply divergent attitudes toward transnational law. The transnationalist faction—which includes Justices Breyer, Souter, Stevens, Ginsburg, and at times, Justice Kennedy—tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the “mutual interests of all nations in a smoothly functioning international legal regime” and must “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.” In contrast, another group of Justices, which includes the new Chief Justice John Roberts and Justices Scalia, Thomas, and Alito, seems committed to a more nationalist course."

You may wonder how people on the highest court of the land, sworn to uphold the United States Constitution, could adapt such an insane position. Apparently if you are a member in good standing of “ The Constitution: Our Living Document” society it just seems right.

Whelan’s article goes on to clarify Koh’s position:

“The reality of Koh’s transnationalism is even worse than this passage reveals. Koh believes that it is “appropriate for the Supreme Court to construe our Constitution in light of foreign and international law” in “at least three situations”: (1) “when American legal rules seem to parallel those of other nations”; (2) when (quoting Breyer) “‘foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances’” and we can draw “empirical light” from their experience; and (3) “when a U.S. constitutional concept, by its own terms, implicitly refers to a community standard”. (Koh, International Law as Part of Our Law, 98 Am. J. Int’l. L. 43, 45-46 (2004) (emphasis added).) As the italicized weasel words indicate, in the hands of a living constitutionalist like Koh, foreign and international legal materials will virtually always be available to a transnational judge to help him reach the result he wants to reach.”

Counsel to the State Department today, Supreme Court Justice tomorrow. Was the New World Order part of the Hope and Change you yearned for? Next time someone says “hold your nose and vote for the Republican,” please give it consideration.