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.
It's 11:45 a.m. on April 1, and if you run a Google News search on Harold Koh, dean of Yale Law School and President Obama's pick for legal adviser to the State Department, here's what you'll find: 13 pieces on far-right Web sites characterizing Koh as dangerous and anti-American; several Fox News stories, updated several times daily, one of which describes the anti-Koh screeds as "burning up the Internet"; and a measly two blog posts defending Koh from these attacks. By the time you read this, I suspect that Fox News will have a scrolling red banner that reads, "Obama's Koh pick imperils us all" (and … wait for it … BINGO!), the anti-Koh pieces will number 18, and the pro-Koh blog posts will number three.
And yet by my most recent tally, every one of the anti-Koh rants dutifully repeats a canard that first appeared in a hatchet piece in the New York Post by former Bush administration speechwriter Meghan Clyne. She asserts that Koh believes "Sharia law could apply to disputes in US courts." The evidence for her claim? "A New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that 'in an appropriate case, he didn't see any reason why Sharia law would not be applied to govern a case in the United States.' "
Needless to say, if the future lawyer for the State Department wanted to apply sharia law willy-nilly in American courtrooms, it would be a terrifying prospect. And so Daniel Pipes can title his post "Obama's Harold Koh, Promoter of Shari'a?" … OMG, people! Dean Koh wants to see women executed in the middle of the town square for wearing the wrong color burkha.
But, of course, Koh believes nothing of the sort. And the only real revelation here is that truth can't be measured in Google hit counts or partisan hysteria.
The New York Post today published a letter from Robin Reeves Zorthian, who actually organized the Yale Club dinner to which Stein refers. In that letter, Zorthian writes that "the account given by Steve Stein of Dean Koh's comments is totally fictitious and inaccurate" and that she, her husband, "and several fellow alumni ... are all adamant that Koh never said or suggested that sharia law could be used to govern cases in US courts." Why should we believe her and her colleagues over Stein? Well, for one thing, Koh in all his academic articles and many public statements has never said anything to suggest some dogged fealty to sharia. But the right-wing blogs have yet to take note of Zorthian's version of events; the sharia fable is chuffing along on its own steam now; and Fox can continue to pass along Stein's account of the story in a breathless game of sky-is-falling telephone.
Chris Borgen, at Opinio Juris, has done a great job of debunking some of the worst of Clyne's distortions of Koh's legal and constitutional views, and Above the Law treats her absurd sharia claims with all the unseriousness they warrant. 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.
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 Republican administrations. He was confirmed unanimously 11 years ago, and yet this time around, he is a threat to American sovereignty.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Harold Hongju Koh by Chip Somodevilla/Getty Images.