As conservatives continued to attack outgoing Yale Law School Dean Harold Hongju Koh’s nomination to the Department of State last week, an endorsement came from the unlikeliest of people.
In a speech at Yale Law School on Thursday, conservative icon Kenneth Starr announced his support for Koh before an audience of about 95 students and professors, two people in attendance said. The endorsement from Starr — whose report on the Monica Lewinsky scandal paved the way for the impeachment of President Bill Clinton LAW ’73 — comes as right-wing critics continue to allege that Koh will place international statutes above American law.
According to the two audience members, Starr said the Senate should defer to the president’s nominations, especially those in the executive branch. As long as the nominee demonstrates integrity and competence, Starr added, the president deserves to appoint his own assistants and advisers.
Starr — dean of the Pepperdine University School of Law since 2004 — was away from his office Friday and was unable to comment, a Pepperdine spokeswoman said.
Although originally scheduled to speak on the nomination and confirmation of United States Supreme Court nominees, Starr repeatedly touched upon Koh’s nomination at the event, which was sponsored by the Yale Law Federalist Society. Sterling professor of law Akhil Amar ’80 LAW ’84, who was in the audience, said Starr’s endorsement of Koh reflected the media’s vilification of Starr, a former independent counsel, a decade earlier.
“Starr himself was a victim of a spin machine,” Amar said in reference to Koh’s current portrayal in the media.
Throughout the Lewinsky scandal, critics debated Starr’s neutrality in the investigation. In October 1999, eight months after the Senate acquitted Clinton of all charges, Starr resigned from his post, citing the “politicization of the [investigation] process.”
Amar said Starr’s endorsement of Koh was also important given the past history between the two. When Koh challenged the right of the administration of George H.W. Bush ’48 to detain Haitian refugees at Guantanamo Bay in the early 1990s, Starr — then U.S. solicitor general — argued on behalf of the administration. But Starr’s respect for Koh never wavered, said Amar, who sat on a panel with Starr at Pepperdine in late March.
“Despite being opposing counsels,” Amar said, “[Starr] still held Koh in the highest regard.”
Benjamin Johnson LAW ’10, co–vice president for events for the Yale Law Federalist Society, said Starr’s endorsement of Koh, while still a surprise to many in the audience, was nonetheless consistent with his previous support of the president’s power to appoint whomever he pleases.
Student reaction to the talk, Johnson added, was in general “very favorable.”
After President Barack Obama nominated Koh as top legal aide to Secretary of State Hillary Rodham Clinton LAW ’73 on March 23, conservative pundits attacked the dean as a supporter of “transnationalism,” the notion that American courts could apply foreign law in domestic cases. The concept recently gained widespread attention when Supreme Court Justice Anthony Kennedy cited foreign statutes in two high-profile cases: Lawrence v. Texas, which essentially struck down sodomy laws across the country in 2003, and Roper v. Simmons, which outlawed juvenile execution in the United States in 2005.
But the storm of controversy that followed these decisions soon caused Kennedy to shy away from the use of international law. Kennedy has yet to cite foreign statutes in a constitutional opinion since Roper.
Koh’s critics have focused on comments he purportedly made at a 2007 dinner for Yale alumni in favor of the use of Shariah law in U.S. courts. But those at the event have said Koh did not make any such comments.
“[Koh] never said that Shariah law could or should be applied in the United States,” said Robin Zorthian ’76, the organizer of the dinner, in an interview earlier this month.
The Senate Committee on Foreign Relations has yet to set a date for Koh’s confirmation hearing.