Today’s confirmation hearing for Harold Koh, President Obama’s nominee as Legal Adviser for the State Department, is an important hurdle, but it’s not the last one. As a transnationalist, Koh is not normally respectful of the Senate’s “advice and consent” role in making treaties. The full Senate can therefore be expected to take a lively interest in his nomination.
It’s this question of ‘what next’ that sums up part of the problem. For example, according to Koh, the U.S. was wrong not to participate in the 2001 Durban Conference. The Conference, according to Koh, was fashioning the “emerging global agenda on race discrimination.” And a global agenda is exactly the kind of agenda that Koh likes.
As he put it in November 2008, in the Fordham Law Review, trasnationalism allows judges “to construe the Constitution to invalidate domestic rules that now violate clearly established international norms.” If there is what he called a “clearly established international human rights norm” – which is exactly what Durban sought to establish – then U.S. judges are obligated to interpret the Constitution accordingly.
But the awkward fact is that Durban established values that Koh himself clearly rejects. For example, Durban equated Zionism and racism, making Israel out to be a systemically and fundamentally racist state. The Durban Review Conference reiterated that judgment. Yet by Koh’s own account, Durban was exactly the kind of forum the U.S. should be participating in, and that is responsible for creating the transnational norms he prizes.
So what next, Dean Koh? Stand by the principle of transnationalism and argue that Durban created a norm the U.S. is bound to respect, or stand by opposition to anti-Semitism and reject Durban? Unless Koh wants to retreat from that opposition, he has no alternative but to refuse to recognize Durban on moral grounds.
We agree that Durban is morally bankrupt. But this dilemma highlights the fact that, for Koh, questions of law and politics are ultimately indistinguishable. Koh likes most international norms and dislikes a few. The ones he likes are law and must be enforced in the U.S., regardless of existing U.S. law. The ones he dislikes he would simply have to refuse to recognize. That is an entirely arbitrary basis for making a decision on a point of law.
The conservative alternative, on the other hand, begins with the Constitution (which gives Congress the power to “define and punish offenses . . . against the Law of Nations”), the Bill of Rights, and the sovereignty of the people. The Executive Branch negotiates and signs treaties, and the Senate ratifies them. As far as offenses against the law of nations – or customary international law – are concerned, Congress makes the laws, and the President signs them.
If disputes arise, they are addressed through the court system, governed by the Constitution and the Bill of Rights, the highest law of the land. In this way, the people, acting through their elected representatives, and with rights secured by the Constitution they adopted, are the final arbiters of the laws under which they will live.
That is the essence of sovereignty, which is justified by the inherent right of self-government. It is a system that is a far better safeguard for law, liberty, and democracy than Koh’s transnationalism, which hands immense powers of reinterpretation to judges and thus makes the question of what laws should prevail in the United States, ultimately, into a matter of what international norms a judge prefers on political grounds to recognize.