Conservative about Dahlia Lithwick on Harold Koh

More on Dahlia Lithwick on Harold Koh. By Ed Whelan
Bench Memos/NRO, Thursday, April 02, 2009

A follow-up to my post agreeing with Dahlia Lithwick that those of us who are alarmed by State Department nominee Harold Koh should not base our case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts:

Let me briefly discuss just a couple of the many things that Lithwick gets wrong in her essay. (I’ll leave aside Lithwick’s ongoing effort, which Jonathan Adler has aptly remarked on before, to reposition herself from her previous role as a perpetrator of the “vicious slash-and-burn character attack” to her new role as a hypersensitive bemoaner of any criticism of nominees.)

Lithwick contends:

The underlying legal charge from the right is that Koh is a "transnationalist" who seeks to subjugate all of America to elite international courts. We've heard these claims from conservative critics before. They amount to just this: The mere acknowledgment that a body of law exists outside the United States is tantamount to claiming that America is enslaved to that law. The recognition that international law even exists somehow transforms the U.S. Supreme Court into a sort of intermediate court of appeals that must answer to the Dreaded Court of Elitist European Preferences.

Set aside Lithwick’s apparent insinuation that “transnationalist” is an epithet invented by conservatives to stigmatize folks like Koh, when in fact Koh himself, as author of articles like “Transnational Public Law Litigation” and “Why Transnational Law Matters,” has championed the label. As she often does, Lithwick, rather than accurately presenting and engaging opposing arguments, proceeds with argument by wild distortion. The italicized passages are an absurd misrepresentation of conservative critiques of Koh. (See, for example, my post here and John Fonte’s post. And for conservative critiques of transnationalism generally, see the article by John Fonte linked to in his post and John Bolton’s recent Commentary essay, “The Coming War on Sovereignty.”)

Lithwick also asserts:

Harold Koh is not a radical legal figure. He has served with distinction in both Democratic and Republican administrations (under Presidents Clinton and Reagan), and in that capacity he sued both Democratic and Republic [sic] administrations.* He was confirmed unanimously 11 years ago, and yet this time around, he is a threat to American sovereignty.

Here Lithwick resorts to insipid makeshift arguments that she herself would not apply to others. So what that Koh was a junior career lawyer in OLC during the Reagan Administration? Is that evidence that he is not now a radical legal figure? Well, then, I guess that Lithwick has never attacked, and would never attack, Samuel Alito as extreme, since Alito served with distinction as a career prosecutor in the Carter Administration. And how does Koh’s confirmation 11 years ago foreclose examination of what we have learned about him, and about the transnationalist threat, in the meantime? Again, would Lithwick maintain that because, say, Justice Scalia was confirmed unanimously, she couldn’t and wouldn’t oppose his elevation to Chief Justice? Ridiculous.

* I have no idea what the second half of this sentence is supposed to mean. I’ll presume an editing glitch.