By Austin Ruse
(WASHINGTON, DC – C-FAM) It was clear from the opening moments of the Senate hearings for the proposed new top legal advisor at the United States (US) State Department that widespread criticism of the nominee had struck a nerve. Rather than a love feast for a liberal hero, the committee seemed to be, in the words of one observer, in a “defensive crouch.”
Chairman of the Senate Foreign Relations Committee John Kerry immediately denied charges that former Yale Law School Dean Harold Koh wants to subordinate the US Constitution to foreign legal sources. To chuckles all around, Kerry said to Koh, “And you don’t want to do away with Mother’s Day, do you?” This referred to criticism from social conservatives that Koh supports US ratification of a United Nations (UN) treaty whose monitoring committee criticized Mother’s Day as promoting a negative cultural stereotype.
With the exception of a few Republicans, each member of the Committee felt it necessary to rebut criticism of Koh that has been building in the conservative media and blogosphere.
In his voluminous writings, Koh has vigorously supported a legal theory known as “transnationalism.” This theory holds that federal judges and Supreme Court justices should use foreign legal sources like European Court of Human Rights opinions to interpret the US Constitution and determine US law. In the hearing, Koh distanced himself from his own writings, saying he was only interested in “knowing” foreign law and mocked those who felt that American lawyers should not “know” foreign law.
A broad-ranging “sovereignty coalition” has formed in opposition to the Koh nomination, and a letter from the coalition to the Senate is expected any day. The group represents a broad range of center-right concerns over national security, economic, social, foreign, and constitutional policy.
Troubling to social conservatives is Koh’s support of UN regimes forming -- and sometimes coercing – the social policy of sovereign states. Koh, for instance, supports US ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Koh seems unaware or indifferent to the threat posed by the UN committee that monitors CEDAW compliance. In 2002 testimony before the Senate, Koh testified that CEDAW was “abortion neutral,” when in fact the CEDAW committee had read abortion into the treaty through its “health” provisions. Moreover, he seemed at that time to be unaware or indifferent to the CEDAW committee directing states parties that they had to legalize abortion.
In written testimony provided to the committee, Koh denied there was a customary international legal norm on the death penalty. Given that there is greater international uniformity on the death penalty than on abortion, it would follow that Koh would also deny such a norm exists for abortion. However, given the way that Koh dodged and weaved before the committee and at times seemed to deny his own writings, one cannot be sure he would follow his own logic.
It is expected Koh will be voted out of committee but that there will be a floor fight over his confirmation.
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