Thursday, April 09, 2009

More Risible Defenses of Koh   [Ed Whelan]

[Update (4/10):  In my exasperation at the failure of Harold Koh’s defenders to engage my actual arguments even as they purport to do so, I initially wrote the post below in harsher rhetoric than is necessary.  I have now modified it.]

 

While I’m polishing up the next posts in my series on Harold Koh, I’ll take a brief break to respond to the criticisms of my posts by Koh’s defenders.  I haven’t seen anything yet that has merit.  In particular, no one has identified a single actual error in the several thousand words I’ve written so far.  Nor, incidentally, do those trying to dismiss me as unfair to Koh inform their readers that I was, so far as I can tell, the first conservative blogger to tell Koh’s other critics that they “should not base their case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts”—an argument I made, on both The Corner and Bench Memos, immediately upon learning that that charge was circulating in the blogosphere.

 

Now a quick survey of Koh’s defenders (beyond law professor Laura Dickinson, whom I’ve already addressed here and here):

 

Charlie Brown and St. John’s law professor Chris Borgen believe that “transnationalism” is an epithet that I’ve invented to stigmatize Koh.  But it’s Koh who has described his favorite Supreme Court justices as the “transnationalist faction” and as “transnationalists” (in his 2006 law review article “Why Transnational Law Matters”).  It’s Koh who (in his 2004 article “International Law As Part of Our Law”) praises a “more venerable strand of ‘transnationalist jurisprudence” and talks about a “transnationalist system,”  “transnationalist views,” and “transnationalists.” 

 

Brown responds to my criticism of Koh’s positions on customary international law, evidently without ever having read my two extensive posts on the topic.  (His post refers and links to only my introductory post and my “first one here” and thus indicates that he read only the first two posts of the series; my posts on customary international law were the third and fourth.) 

 

Some fellow who calls himself Publius claims that I’m attributing to Koh normative arguments when he is only making descriptive observations.  But Koh is an ardent advocate of promoting transnationalism through what he calls “transnational legal process.”  Consider, for example, his Stanford Law Review article “On American Exceptionalism” in which Koh says that his “preferred solution” to “American exceptionalism”—on First Amendment speech rights (see here and here) and much else—is “triggering transnational legal process.”  Publius-Poseur also sets up straw men of his own imagining:  “Koh’s point isn’t that we should ignore domestic law – or treat it as non-existent,” he says, in supposed response to an argument I’ve never made.  Ditto for:  “to Whelan, all of Koh’s descriptions (along with Koh's more limited normative suggestions) mutate into calls to wholly ignore domestic law” (emphasis in original). Publius-Poseur contends that Koh is “simply saying that American courts have – from the founding – historically looked abroad to inform their judgments, and that they should continue doing so today.”  That hardly captures the breadth of Koh’s arguments, as Koh’s own words in my posts should make clear.  And P-P invents and attributes to me an argument about construing the Due Process Clause that I haven’t made and don’t believe.

 

Washington & Lee law professor Hari Osofsky purports to respond to my criticisms of Koh, but gives zero evidence that she’s actually read them.

 

I did like the candor of this commenter on Publius-Poseur’s blog, who says:  “I don’t agree with Whelan — mostly because I largely approve of the values of our new transnationalist overlords.” 

04/09 05:01 PMShare