Conservative Coalition Takes Aim at Obama Legal Nominee

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Conservative Coalition Takes Aim at Obama Legal Nominee
Yale's Koh Drawing Fire on the Right for "Transnational" Legal Views
By David Weigel 4/9/09 11:11 AM


A coalition of conservative activists is beginning to form around opposition to Harold Koh, President Obama’s nominee to become the legal advisor for the Department of State. In Koh, opponents of “transnational” legal theory have found a test case to prove that international law is a political loser–and a way to preemptively discredit a possible candidate for the Supreme Court.

“This is the culmination of years of arguments about international law superseding our own Constitution,” explained John Fonte, a senior fellow at the conservative Hudson Institute who is lobbying conservative jurists and lawyers to sign a letter opposing the Koh nomination. “This had been an academic argument, then an obscure argument, but it’s surfacing now because there’s real scrutiny being paid to Harold Koh’s views.” Other conservatives who talked about Koh on Wednesday wanted to take the chance to “create a paper trail” of Koh criticism, to knock him down the list of possible Supreme Court appointees.

Koh, the dean of Yale Law School since 2004 and a former assistant secretary of state for democracy, human rights and labor under President Bill Clinton, was announced as the nominee for the State Department job on March 23. His nomination didn’t come as much of a surprise to conservatives, as Koh, long considered one of the most powerful legal minds on the left, had been floated as a possible Obama Supreme Court nominee as long ago as September 2008. At the time, Center for Ethics and Public Policy President Ed Whelan wrote a series of posts about Koh’s legal theories for National Review Online, digesting Koh’s views for conservative readers. Among Koh’s sins were appealing to “decent respect to the opinions of humankind” in opposing the death penalty, declaring “lesbian and transgender rights” a closely-held legal position, and citing “international and foreign court decisions” in an amicus brief arguing for the overturn of Texas’s sodomy law.

“What judicial transnationalism is really all about,” wrote Whelan, “is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.”

Since Koh became a candidate for the State Department job, Whelan has kept up a new drumbeat of criticism–”yeoman work,” said Fonte–and helped build a record of Koh’s most controversial stances, turning the low-visibility job into the subject of heated arguments on talk radio and Fox News. This week Fonte began distributing a letter from the Coalition to Preserve American Sovereignty, an ad hoc group started in 2007 to oppose the obscure Law of the Sea Treaty. That original mission was kicked off by Frank Gaffney, now the head of the Center for Security Policy, who is not behind this current campaign but said on Glenn Beck’s Fox News show last week that Koh’s transnationalism meant “getting the U.S. Government to abide by laws that the Congress wouldn’t pass because the American people wouldn’t accept them.”

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http://washingtonindependent.com/38069/conservative-coalition-takes-aim-at-obama-legal-nominee