And Then They Came for Koh ...
If mainstream America can't stand up for Harold Koh, we will get precisely the government lawyers we deserve.
Clyne's gross distortions of Koh's views have gone completely unanswered in the mainstream press. You can certainly argue that ignoring the whole story signals that it's beneath notice. But it also means that, once again, the only players on the field work for Fox News. So last night, while you were reheating Monday's lasagna, Glenn Beck was jubilantly warning his viewers that Koh went to Europe and "protested against Mother's Day." And thus one of the country's leading academics—a man who has authored 175 law review articles and/or legal editorials and eight books—has been reduced to an ad hoc answer to a gotcha question that nobody but the questioner himself seems to understand.
Why am I bothered by this? This kind of vicious slash-and-burn character attack, the kind in which the nominee is attacked as a vicious hater of America, is hardly new. The little trick of upending Dean Koh's legal arguments and recharacterizing them as the nefarious plotting of Dr. Evil is a surprise to nobody at this point. But we can be bothered even if we're not surprised. When moderate Americans and the mainstream media allow a handful of right-wing zealots to occupy the field in the public discussions of an Obama nominee, they become complicit in a character assassination. Dawn Johnsen, a law professor at Indiana University and one of the most qualified candidates ever tapped to head the Office of Legal Counsel in the Justice Department, now faces the prospect of a Senate filibuster because it took weeks for the mainstream media to evince outrage at how she was being treated. *
As Neil Lewis observes today in the New York Times, the attack on Johnsen (who is an acquaintance and used to write for Slate) also started out with an attack from a handful of conservative blogs. The posts asserted that a 20-year-old footnote in a brief Johnsen had authored "equated pregnancy with slavery." And this bizarre claim rapidly became a holy truth to Senate Republicans at her confirmation hearing, even when they couldn't quite recall where they had read it or why.
There is no rest stop on the misinformation superhighway. Some senators apparently cannot be bothered to fact-check the claims they have read in the blogosphere. And that makes the rest of us responsible for fact-checking them as needed and for getting angry when good people are smeared for views they do not hold. One needn't read all of the thousands of pages Koh has written over his career to find an opinion or argument with which you disagree. But the fact that his critics must fabricate Koh's opinions in order to take issue with them suggests that they haven't read any of them.
I'm doubly bothered by the radio silence in the mainstream media because Johnsen and Koh represent two of President Obama's bravest choices. Both have been outspoken critics of Bush administration excesses, and they have done so openly and unequivocally. They were willing to use strong words like torture and illegal long before most of us could bring ourselves to do so. President Obama could have named a pair of mild-mannered tax attorneys to these high government positions. Instead, he opted to pick precisely the sorts of people we most need there: fierce advocates who care deeply about these agencies and the law as it applies to them.
If we cannot bring ourselves to loudly support nominees like Koh and Johnsen, we deserve whoever it is that actually can be confirmed in this climate. (I was about to suggest that possibly Dora the Explorer might squeak through a confirmation hearing, until it occurred to me that she's a foreigner, a transnationalist, and a woman.) We may have bigger things on our minds than Obama's top lawyers just now, but they deserve better from us. The one thing about which Meghan Clyne is brutally candid in her assessment of Koh is her own motivation for trashing him: "[T]he State job might be a launching pad for a Supreme Court nomination. (He's on many liberals' short lists for the high court.) Since this job requires Senate confirmation, it's certainly a useful trial run." If what Koh and Johnsen have been facing is a practice-sliming from the far right, we should be very, very afraid for whoever it is that someday merits their scrutiny at the high court.
Correction, April 2, 2009: This article mistakenly referred to the University of Indiana. (Return to the corrected sentence.)
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Harold Hongju Koh by Chip Somodevilla/Getty Images.