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April 14, 2009

The Koh (Faux) Controversy
Posted by David Shorr

Over at the New York Times Opinionator there is a good bloggregation on the Harold Koh nomination to be Secretary Clinton's legal adviser. Honestly though, this is a lot of sound and fury signifying very little. Chris Borgen at Opinio Juris makes the key point:

Neither Koh, nor anyone else I know of says that foreign norms “dictate” anything in the US. Foreign law, as Justice Kennedy explained, can be used as persuasive evidence or, as Justice Breyer put it in a speech at the ASIL, there is “enormous value in any discipline of trying to learn from the similar experience of others.” That’s it. Nothing nefarious. No black helicopters or anything. Justices cite to law review articles, social science studies, and even Gilbert and Sullivan. Sometimes, they may note the experiences of judges in other countries and learn from them. Citing to foreign law is not allowing the world to dictate to the US; it is simple intellectual honesty.

Sounds like a pretty simple and clear distinction to me. Over here we have the purported threat of treating other lands' laws or judicial rulings as binding or precedent. And as Prof. Borgen says, no one in this debate makes any such claim. And then over here we have the idea that useful insight might be gained from such sources. Come to think of it, in the above sentences, I just read (and cited) the blog Opinio Juris because I found a well articulated point there. In doing so, however, I did not implicitly accept the binding authority of the blog. Now really, is there a blurred line between these two ways of treating a source?  

Which brings me to Jeffrey Toobin's online New Yorker column, which places the burden of proof on the administration and supporters of Koh's nomination:  

The issue taps into deep feelings of nationalism, mostly but not only among conservatives. Citizens of the European Union countries regard the power of that central authority with great concern, but that’s nothing compared to the skepticism here about the United Nations and other international organizations. It might be easy to assume, given Koh’s manifest qualifications for the job, that he will cruise to confirmation. He still may. But this issue is politically radioactive, and he and his sponsors ought to approach it with great caution.

Here's my question, are we talking about nationalist feelings, or nativist xenophobia? Once we clarify that the use of foreign legal sources is simply a matter of learning from others, the argument of the critics is basically that we have nothing to learn. If that's nationalism, it's pretty brittle stuff -- and unworthy of a great republic. 


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COLUMBUS, Ohio, Apr 11, 2009 — In wide-ranging remarks here, Justice Ruth Bader Ginsburg defended the use of foreign law by American judges . . “I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

Here's my question, are we talking about nationalist feelings, or nativist xenophobia?

Actually, given the sources of the ginned-up faux-hysteria over Harold Koh's pending nomination, we're talking about a group to whom the two terms are virtually synonymous: although they tend to obfuscate the issue by calling it "American exceptionalism" or some other tidy euphemism.

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