an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I write to address three criticisms recently directed at Dean Harold Koh following the announcement that President Obama had nominated him for the post of Legal Adviser to the Secretary of State. (In the interests of disclosure, I was a former colleague of Dean Koh’s for ten years at Yale Law School.) Ordinarily, I would not dignify criticisms so wildly off the mark with a response. But the high uptake these criticisms have already received suggest not only that they will be taken seriously, but that they have a seriously appealing hidden barb.
The criticisms are nicely summarized by former Bush speech writer Meghan Clyne in the March 30 issue of the New York Post, though Ms. Clyne is certainly not the only person to make them. According to Clyne, Koh believes that (1) “Sharia law could apply to disputes in U.S. courts;” (2) “The United States constitutes an ‘axis of disobedience’ along with North Korea and Saddam-era Iraq;” and that (3) “Judges should interpret the Constitution according to other nations’ legal ‘norms.’”
The criticism that Koh believes sharia law could be applied by U.S. courts is false. This allegation was made by New York attorney Steven Stein, who asked Koh during a speech made to the Yale Club of Greenwich in 2007 whether Islamic law could apply to disputes in U.S. courts. Stein alleges that Koh stated that in some cases it could. The host of the event, however, categorically denies that Koh made any such statement. Indeed, she wrote a missive to the Post requesting a correction, to which the Post has not yet responded. Meanwhile, the damage has been done—a Google search for “Harold Koh and sharia” turns up over a thousand hits only one day after the article’s publication. It is telling that a contested allegation at a social club would make more headlines than the eight books Koh has written or edited.
The criticism that Koh believes that the United States, alongside North Korea and Iraq, is part of an “axis of disobedience” to international law, is equally off base. The quotation comes from a 2004 article, in which Koh argued that if the United States does not live up to its human rights obligations, it will have a harder time enforcing those obligations on other nations. Secretary of State Dean Acheson made this argument during the Cold War—an argument many historians believe contributed to Brown v. Board of Education. Koh’s point is not that we are morally equivalent to such countries as Iraq and North Korea, but that if we shortsightedly violate international law, we undermine our own capacity to persuade gross violators to improve their compliance records.
The criticism that Koh believes that judges should interpret the Constitution according to other nations’ legal norms is also misleading. If one looks at Koh’s work as a whole—not just the eight books but the over 175 articles he has written—the idea that the United States Constitution is the “supreme law of the land” is its absolute bedrock. What Koh argues is that our world is already so interdependent that the legal practices of other countries can provide a means of reflecting on our domestic ones. His claims are about how the United States Constitution might absorb the norms of other traditions, not how it might be absorbed by them. Koh’s approach is not radical, but just a twenty-first century version of what the authors of the Declaration of Independence called according a “decent respect to the opinions of mankind.”
What troubles me about these false or misleading criticisms is not just that they have been broadly purveyed by FOX News and other outlets to individuals who may not have the time or inclination to ascertain the truth. It is also that all three appear to be part of one broader unspoken criticism. This master criticism is that Koh, a Korean-American from a remarkably successful immigrant family, is somehow too disloyal to American interests to serve his country.
I am not playing the race card on Koh’s behalf here, though it is certainly true that Asian-Americans have a history of being treated simultaneously as “honorary whites” and “perpetual foreigners.” I am simply pointing out the President’s opponents are playing the fear card in a time of national stress. Why else would such baseless criticisms be directed against the Dean and chaired professor of one of the top law schools in the country, who is one of the most distinguished international lawyers of his generation, and who has already served his government to bipartisan acclaim after a unanimous confirmation? We owe it to Koh, and to ourselves as a nation, to raise the level of discourse around this round of hearings.