Obama nominee touches a nerve in conservatives

Koh casts himself as a pure academic, studying how international norms seep into domestic legal opinions. But during the Bush administration, he was among the many academics who criticized the president for failing to uphold the Geneva Conventions and other treaties.

Now, President Obama has nominated Koh, 53, to become the State Department's top lawyer, and Koh is also widely believed to be a leading candidate for the Supreme Court. But as a key Senate committee prepares to take up his nomination later this week, opposition is growing among conservative thinkers, right-wing blogs, and some Republican lawmakers.

They suggest that if Koh becomes the chief legal adviser to American diplomats, he would give undue influence to foreign legal opinions, perhaps limiting American options in matters of national security.

"Harold Koh has a reputation as being the leading scholar on transnationalist jurisprudence," said Robert Alt, deputy director of legal and judicial studies at the Heritage Foundation, a conservative think tank. "Particularly among conservatives, that school of thought is disturbing insofar as it seems to suggest transnational law trumps constitutional rights, and thereby may be a threat to American sovereignty."

Though Republicans acknowledge Koh's bipartisan credentials - he served in both the Reagan and Clinton administrations - GOP members of the Senate Foreign Relations Committee have signaled that they will sharply question him during the confirmation hearings. While Democrats outnumber them on the committee and in the full Senate, Republicans have enough political muscle to filibuster Koh's nomination and sidetrack it indefinitely.

Many in the GOP portray Koh as a liberal who will use far-left views from "progressive" European countries to reshape American foreign policy, and will do the same to the nation's justice system if Obama picks him for the Supreme Court.

In writings, speeches, and interviews, Koh contends that helping forge international agreements, participating in the United Nations, and supporting international war crime tribunals are in the best interests of the United States.

"When I came to the government, the first conclusion I reached was that the rule of law should be on the US side. That's a system of [international] law that we helped to create," Koh said in a 2003 appearance at the University of California at Berkeley. "So that's why we support various systems of international adjudication. That's why we support the UN system. We need these institutions, even if they cut our own sovereignty a little bit."

By most standards, Koh's views are liberal. He has been a strong advocate for international human rights, and has argued that American adoption of international norms - including bans on the death penalty and stricter controls on guns - would bring the nation more in line with other Western democracies.

Koh declined to comment through his Yale office. But in a recent profile, the Yale Daily News portrayed him as popular among liberals and progressives on campus.

The son of parents who fled postwar Korea in the early 1950s, Koh was born in Boston and raised in Connecticut. He received undergraduate and law degrees from Harvard, as well as a bachelor's degree and an MBA from Oxford University in England, and was a clerk for Supreme Court Justice Harry A. Blackmun.

Koh joined the Reagan administration's Office of Legal Counsel, and later served in the State Department under President Clinton as a special adviser for human rights. He joined Yale Law School's faculty in 1995, and became dean in 2004. Obama last month nominated his brother, Howard Koh, associate dean of the Harvard School of Public Health, as assistant secretary for public health.

Speaking with the Yale Daily News, Harold Koh said he strongly believes in rights for gays, lesbians, and transgender people, and the article noted his support of the ongoing ban of ROTC recruiters from the law school campus because of the military's "don't ask, don't tell" policy against homosexuals. He also led a law school protest of a guest lecturer who used a racial epithet in class notes.

The Daily News article, however, also described how some law students felt Koh's views had "a chilling effect" on conservative political discourse within the school.

Like many other legal academics to come before Congress - from conservative Reagan Supreme Court nominee Robert Bork to liberal Clinton Justice Department appointee Lani Guinier - Koh could find that positions advanced in academia play differently on the national stage.

Koh "has gotten cover from academia, which largely share views which most Americans would call kooky," said Edward Whelan, president of the Ethics and Public Policy Center and a member of the Federalist Society, a conservative public interest group. "What he has to worry about is that any public airings will show them to be kooky."

Some Republicans fear that allowing Koh an easy confirmation hearing for the State Department post would give Obama a green light to name him to the Supreme Court. His views and opinions make him a prime target for conservatives on Capitol Hill - and could make for a tough vote for Democrats from conservative states such as Virginia and Montana.

But liberals argue that Republicans, itching for payback, will take shots at Koh for his blunt assessment of Bush and not for his theories on transnational law.

Testifying before the Senate Judiciary Committee in September, Koh told lawmakers that the Bush administration's "obsession" with secrecy and the war on terror led it to ignore the Constitution, bypass international treaties the United States helped create, turn a blind eye to human rights abuses, "and made us less safe and free."

At the same time, he contended, Bush's hardball antiterror tactics "yielded strikingly few [terrorism] convictions or proven security benefits, while costing millions . . . and devastating America's global reputation for commitment to the rule of law."

Koh's defenders, who include some prominent conservatives such as Kenneth Starr, the former special counsel who pursued the Monica Lewinsky case against Clinton, believe Koh's support for international law shouldn't be stereotyped.

Sarah Mendelson, a human-rights specialist at the Washington-based Center for Strategic and International Studies, said Republicans shouldn't turn the Koh nomination into a referendum on treaties that have been ratified and have the force of US law.

"We've been through that," Mendelson said. "International law matters" and the cost of ignoring it "has been enormous."