"[T]he word greatness is greatly overused. It is hard to tell the difference between greatness and mere excellence, but you know it when you see it."
In this quote, Harold Koh, President Obama's nominee for State Department Legal Advisor, was speaking of another distinguished academic, but the tribute might well be used to describe Harold Koh himself, a towering figure in the legal profession. Koh is an expert in foreign affairs, international law, international business transactions, and human rights. He recently stepped down as Dean of Yale Law School, where he has served on the faculty for twenty-four years.
A highly respected and accomplished lawyer and scholar, Dean Koh is eminently qualified to serve in the State Department as the Administration's top international lawyer. Koh clerked for Justice Harry A. Blackmun on the Supreme Court as well as for Republican Court of Appeals Judge, Honorable Malcolm Richard Wilkey. Dean Koh also served in both the Reagan and Clinton Administrations, working in the Justice Department and State Department, respectively. As Assistant Secretary of State for Democracy, Human Rights and Labor under President Clinton, Koh worked across the aisle to protect religious freedom and prohibit human trafficking. It is no wonder he has gained support from former Republican Solicitors General Ted Olson and Ken Starr, as well as from former Republican State Department Legal Advisers John Bellinger, William Taft, and Davis Robinson, as well as from former Democratic Legal Advisers David Andrews, Conrad Harper, Roberts Owen and Herbert Hansell.
Dean Koh's sterling character and unparalleled professional accomplishments speak for themselves. The scurrilous attacks that have surfaced against Dean Koh in recent weeks should be realized for what they are -- ideologically driven attacks that bear no relationship to his exceptional qualifications or his ability to make sound legal or policy determinations. While critics have characterized Dean Koh as seeking to replace the U.S. Constitution and domestic democratic processes with international and foreign law, the criticism falls far wide of the mark. Throughout his career, Dean Koh has maintained that domestic constitutional law is controlling in the United States. His belief that international law and international obligations can and should serve as a guide for courts and policy-makers is consistent with the Constitution itself. Dean's Koh position that the Executive should be subject to checks and balances, whether acting in the realm of domestic or foreign affairs is also grounded in the Constitution. These principles are well within the mainstream of legal thinking and judicial precedent. Where Dean Koh has at times criticized acts of the Executive Branch, his criticisms result from searching legal analysis, aimed at promoting justice and the rule of law.
Dean Koh's opinions amply demonstrate that he has the courage and wisdom to make principled legal policy judgments whether or not his judgments are popular or politically expedient.
I will address the specific attacks on Dean Koh's substantive views in a subsequent post.