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.
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.