WASHINGTON — Yale Law School Dean Harold Hongju Koh entered the Senate Committee on Foreign Relations conference room this afternoon with a huge smile across his face. Whether he left the room feeling the same way is another matter entirely.
The Foreign Relations Committee met Tuesday to discuss Koh’s nomination as legal adviser to the Department of State. While praise for Koh’s academic career and prior public service came from both sides of the aisle, Republican senators grilled Koh on how he would reconcile international statutes with American law, a reflection of the intense criticism from the political right that Koh has received in recent weeks.
Five Democrats and six Republicans on the Foreign Relations Committee sat in at one time or another during Tuesday’s debate. Connecticut’s senators, Christopher Dodd — a member of the committee — and Joseph Lieberman ’64 LAW ’67, introduced Koh to the panel.
Sen. John Kerry ’66, Democrat of Massachusetts and the committee’s chairman, said Koh’s commitment to upholding the United States Constitution was “indisputable.”
“Accusations that [Koh’s] views on international or foreign law would undermine the constitution are simply unjustified,” Kerry said.
Several days after President Barack Obama nominated Koh on March 23 to serve as legal adviser, conservative commentators started to attack Koh for comments the dean purportedly made at a 2007 Yale alumni dinner that implied Sharia law could apply in U.S. courts. When the truth of the allegations was cast in doubt, debate refocused around earlier Koh statements that the United States should adhere to international norms.
Throughout the confirmation hearing, Koh insisted that the U.S. Constitution — not international law — remains the supreme law of the United States.
“I believe the Constitution is controlling law,” Koh said. “There is no campaign [on my part] to shrink any provision of the Constitution.”
Nonetheless, Republican senators asked how Koh would reconcile international statutes with American law in specific situations. Sen. Johnny Isakson, Republican of Georgia, asked about Koh’s views on the Eighth Amendment, which prohibits “cruel and unusual punishment.”
Koh referenced the 2002 decision in Atkins v. Virginia, wherein the U.S. Supreme Court ruled 6-3 that states could not execute mentally retarded persons. Koh said while there was no international law that prohibited such executions, its rarity made it unusual and therefore illegal, in his opinion, under the Eighth Amendment.
“The United States is the only country in the world that engages in this practice, and only a minority of [U.S. states] at that engage in this practice,” Koh said.
Sen. John Barrasso, Republican of Wyoming, confronted Koh on the Second Amendment and asked how Koh could support global gun control without violating the Constitution. The dean said his intention was to prevent situations where child soldiers could obtain arms, not to interfere with the rights of ordinary American citizens.
Koh added that any treaty that he would present before the Senate would not contain provisions that infringe upon the right of the individual to bear arms.
Another Republican, Sen. Bob Corker of Tennessee, questioned whether Koh could keep his personal views separate from his public role as top legal aide to Secretary of State Hillary Rodham Clinton LAW ’73.
“As an academic, I certainly exercised my freedom of speech rights,” Koh said, drawing laughter from the audience here. “But as a government official, I play the role of a counselor to a client [and] look to the client to give direction to me.”
Corker also attacked Koh for his inclusion of the United States in the “axis of disobedience,” a term Koh coined in a 2004 article for the Berkeley Journal of International Law, used to describe countries that disregarded the international rule of law.
Democratic Sen. Russ Feingold of Wisconsin — a personal friend of Koh’s for over 30 years — shot back at Corker, and said Koh meant the statement as a “patriotic reminder” to Americans about the nation’s recent decline in international stature.
“The notion that somehow Harold Koh would cite these examples as a way to denigrate the United States is frankly absurd,” Feingold said.
The committee will meet again — most likely within a week — to vote to send Koh’s nomination in front of the full Senate. The sudden defection of Sen. Arlen Specter LAW ‘56 of Pennsylvania from the Republican Party’s ranks on Tuesday gives the Democrats a 59-40 edge in the Senate, one vote shy of a filibuster-proof majority.
If confirmed by the Senate, Koh will resign immediately from the deanship and take a leave of absence from Yale Law School.