This article first appeared in the St. Louis Beacon, April 21, 2009 - The Senate will soon begin its consideration of President Obama's nomination of Harold Hongju Koh to be legal adviser to the State Department, but the process will really test the Senate's advice and consent procedure and our nation's commitment to civil discourse.
By any objective measure, the Koh nomination should be an easy call. Koh, dean of Yale Law School, is simply one of the most respected academics in the nation. He is a widely acclaimed scholar of international and constitutional law, who served effectively as assistant secretary of State for Democracy, Human Rights and Labor in the last years of the Clinton administration. A decade ago, the Senate confirmed him unanimously; and his contributions since then have enhanced his extraordinary record.
Yet, Koh has been subjected to vicious and persistent attacks on right-wing blogs since his nomination was announced roughly one month ago. Former Sen. Rick Santorum wrote that President Obama's nomination of Koh showed "disdain for American values" and said that Koh has "a deep disdain for traditional values in America, for the traditional way of doing things in this country, for the U.S. Constitution." Fox host Glenn Beck charged that Koh's "legal views are a threat to American democracy" and would jeopardize the Constitution.
This sort of invective should offend Americans committed to civil discourse as it does those of us who have known Koh and his record. In fact, Koh has committed his life to championing individual liberty, democratic governance and the rule of law. If those don't rank as traditional American values, I don't know what do.
Koh has special reason to feel deeply about those ideals. His family sought refuge in America when he was a child after the democratically elected government of South Korea fell in a military coup. Koh's father refused to serve the illegitimate successor regime. He passed on to his children his passionate belief in the fundamental ideals of American constitutional democracy.
Koh internalized those commitments and has dedicated his career to vindicating them. As a young academic in the 1990s, he took on the formidable task of representing Haitian refugees who were seeking to escape persecution in Port-au-Prince, a representation that posed significant risks to his personal resources and reputation.
Later, during his service in the Clinton administration he insisted that America lead by example, that it trumpet its commitment to human rights, democracy and the rule of law and that it act in accordance with those fundamental values.
For more than 20 years, Koh has been a leading advocate of the view that the Constitution assigns significant roles to all three branches of our national government in national security matters, not just to the president. His nomination accordingly speaks well of the commitment of President Obama and Secretary of State Hillary Clinton to engage Congress in a meaningful way in setting foreign and defense policy.
Koh has four times taken an oath to support the very Constitution that the Santorums and Becks of the world claim he would undermine. He served as law clerk to two judges appointed by President Richard M. Nixon, as an attorney in the Office of Legal Counsel during the Reagan administration and in the Clinton state department. The trajectory of Koh's career reflects the high quality of his service in those and other positions. In short, Koh has shown a deep understanding of, and commitment to, our best American traditions and ideals in a manner which few have matched.
The image of Koh peddled by Santorum and Beck is refuted by the testimony of respected conservative lawyers who know Koh. Kenneth Starr, who has been opposite Koh in litigation and on a range of issues, describes Koh as "extraordinarily well qualified" and calls him "a truly great man of irreproachable integrity."
"Because of his great talents and his high character, Harold Koh should be confirmed," Starr recently wrote some members of the Senate Committee on Foreign relations.
Bush Solicitor General Theodore Olson states that "I have the greatest respect for Harold Koh. He's a brilliant scholar and a man of great integrity." Unfortunately, the support of Starr and Olson has not stopped others from mischaracterizing Koh's views and impugning his commitment to American ideals.
The attacks on Koh, which caricature his views and distort the work of a principled career, are morally repugnant. Moreover, a confirmation process in which partisan ends justify the means undermines the democratic process. It deprives our nation of the service of able and dedicated public servants and destroys the bonds that unite us as Americans. We can afford neither loss, especially during these trying times.
Let's hope that all members of the Senate will take this opportunity to set an example of the rational, civil and fair advice and consent process our Constitution envisions and our country needs. We the people should demand nothing less.
Joel K. Goldstein is an authority on the vice presidency and a professor of law at St. Louis University School of Law.