Morning Coffee: Koh nomination on hold

Senator Jim DeMint (R-SC) put a hold on Harold Koh's nomination to become the next top legal adviser at the State Department. Some Republicans have become convinced that Koh is a dangerous radical who favors Sharia law in America. Koh, a former Assistant Secretary of State and past dean of Yale Law School, aroused suspicions by arguing that U.S. judges can sometimes learn things from reading the opinions of judges in other countries.

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Comments

[Eric Jaffa]

So can he keep the hold forever, or is there a process to break the hold?

[Mitchforth]

Article says it's a one week procedural committee hold.

[Cass]

With sharp minds like DeMint arrayed against us, I sometimes wonder if we'll ever see the fullfillment of our progressive dreams. I mean, gay marriage and unversal healthcare are nice, but what do they mean without the power to stone adulterers to death in the public square?

[Bartholomew]

I looked into the whole silly "Koh favours Sharia" nonsense - and the way it was ratcheted up to a hysteria - here:

http://barthsnotes.wordpress.com/2009/03/31/koh-nomination-provokes-hysteria-over-shariah/

I think I managed to "capture" all the sources around it.

[John]

DeMint's objection is insane in so many ways.

[Truman]

If you consider that the first responsibility of the legal advisor is to defend the Constitution of the United States of America ... not to use other countries opinions ... then you understand.

[Mitchforth]

The Sharia issue, as I pointed out on Daniel Pipes's right-wing middle east blog, is a non-issue. If Koh made these comments at all, they were for an audience of lawyers and are understood by lawyers as relatively uncontroversial.

Sharia is a set of laws and rules that the administrators of a number of wealthy states and their sovereign wealth funds adhere to. These rules forbid participation in various types of financial deals. A number of Western financial institutions are very interested in soliciting investment capital from these states and funds. As a result, lawyers and financial types have developed a cottage industry in building investments and deals that comply with Sharia.

If Sharia governs disputes under these agreements than a state or federal court will apply the governing law of the instrument.

The only other conceivable context for applying Sharia in a Western court is a family law context, at the behest of Muslims. Britain has set up permanent Sharia divorce arbitration tribunals, which are de-facto courts if not technically considered courts. In the US, as far as I know, the government has no provision to set up such panels.

However, arbitration, which is effectively a private court that is granted authority by the parties' agreement, is routinely used as an alternative to trial here. Paying private parties can have their divorce arbitrated by an imam, a rabbi or a minister if they choose to.

As for the internationalist argument, it is not about giving foreigners sway over the development of American law; it's about the autonomy of courts. There are two kinds of authority a court can reference in a decision; binding and persuasive authority. Binding authority is a rule established by a court above the ruling court, which the ruling court is obliged to follow. Persuasive authority is an opinion by a court that does not bind the ruling court, but which the ruling court may reference and adopt.

For example, an intermediate appellate state court in Delaware is bound by the Delaware Supreme Court. But an intermediate appellate court in Vermont would only find the Delaware Supreme Court's opinion persuasive, and could set up a different rule.

Reference to foreign authority would be persuasive, but not binding on US courts. So it merely gives judges a more expansive repertoire of pertinent sources to cite.

Reference to foreign law would be a useful tool for jurists who want to make the death penalty unconstitutional, and judges looking to construe the Constitution in a way that limits gun rights would also find ammunition in foreign authority. US courts could still rule opposite to the prevailing rule in other countries, but they would have to try to articulate a reason for doing so, rather than simply ignoring foreign decisions on the point.

[cfrost]

Ok, I'm confused. I voted for Obama, so naturally I favor importing whatever foreign concepts of jurisprudence that will help destroy America. I just don't know whether this means Maoist people's courts, Bolshevik-style commodity exchange theory of law, Stalinist show trials, sharia law, or just what.

We all want a totalitarian terrorist Obama state, but is that to be along communist, jihadist, Wahhabi, Khmer-Rouge, Nazi, or degenerate euro-socialist lines? America's leading thinkers, Senator Jim DeMint, Limbaugh, Hannity, etc., seem to have Obama's plans figured out, but they're not explaining it very well to me.

[TB]

... not to use other countries opinions ...

Yeah, Jesus Truman, look what happened when The Colonies imported The Enlightenment.

[Mitchforth]

Well, the good argument against foreign authority is the same argument that opposes using legislative history (which judges do use in US opinions); this material lacks context.

Specifically, foreign opinions are not written within the context of the US Constitution, and foreign courts in civil law countries don't really perform the same interpretive role.

Since foreign courts are not basing their rulings on the US Constitution, the foreign authority does not really offer a solution to any Constitutional question, but instead, merely supports an argument that the question should be resolved the same way as foreign countries with different legal regimes have resolved the same questions.

A lot of judges and scholars would contend that the fact that Europe has adopted a particular rule on a similar issue bears no relevance to a US Constitutional question, because those opinions do not interpret or consider the Constitution. It is destructive to our concept of freedom to presume that a US legal rule must be wrong if it is out of step with global consensus, because the US legal system bases itself on a unique skepticism toward government power, and places a uniquely high premium on individual autonomy.

We break from Europe on a lot of issues. We have our ironclad first amendment, while Europe regulates "hate speech" and circumscribes religious expression. We permit personal firearms, while Europe does not. We have the death penalty and higher rates of imprisonment, but also more procedural rights for criminal defendants, demanded by our due process and equal protection jurisprudence. We give civil plaintiffs a right to a jury trial, once again, guaranteed in the Constitution, while Europe rejects the civil jury.

[Lindsay Beyerstein]

This is all so much GOP game-playing. Koh is not a dangerous radical. He's a former Deputy Secretary of State, for chrissakes. Show me what he actually did to undermine the sovereignty of the US when he was a top official at the State Department. Examples have not been forthcoming.

The Republicans are trying to smear Koh by painting him as a dangerous radical. It's ugly and reminiscent of McCarthyism.

[Alon Levy]

Mitchforth: if I'm not mistaken, the main kerfuffle over using other countries' opinions was in Lawrence v. Texas. The defendants argued that the idea that homosexuality is deviant is part of Western culture, so it's constitutional to forbid gay sex. The Supreme Court was unimpressed and pointed out that in all other Western countries homosexuality was legal. I think that's where the conservative narrative that liberals are out to replace the US Constitution with some European alternative comes from.

Cfrost: the US already has show trials called People's Court, or Judge Judy, or whatever. It's just that they're restricted to small claims.

[Lindsay Beyerstein]

Alon, heh, good point about the show trials. But I'd say they're more trial shows than show trials. The People's Court always ran a disclaimer saying that all the parties had agreed to waive their real lawsuits and let Judge Woppner adjudicate their dispute on camera. So, it was really like going to a televised mediation proceeding.

[Mitchforth]

Lindsay,

In Lawrence v. Texas, the Court found that there was no legitimate state interest in regulating private sexual behavior, and struck the case down on that basis. The appropriate level of scrutiny to be applied and the degree of state interest necessary to satisfy the Court's scrutiny are technical legal tests devised by the Court with reference to particular Constitutional rights, and no foreign authority would be particularly helpful in performing this kind of analysis.

I think at issue in the Lawrence case was actually that the majority of U.S. states mo longer had anti-sodomy laws, and that, in states where the laws remained on the books, sodomy was almost never prosecuted.

Similar analysis of state-to-state policy supported recent eighth amendment jurisprudence, and Supreme Court opinions banning the death penalty for juvenile offenders, and for the mentally handicapped; using surveys of state practices to supply meaning to the undefined terms "cruel and unusual."

I don't believe the Lawrence opinion relied significantly on the legal status of homosexual behavior in foreign countries, though there may have been a reference to it.

[Alon Levy]

I don't think it was significant either - if I'm not mistaken it was just one quip that a few enterprising Republicans blew out of proportion.

[cfrost]

just one quip that a few enterprising Republicans blew out of proportion

The Republicans may not have the common sense that God gave gravel, but their genius Lee Atwater/Karl Roveian spin engineers can create Himalayan scale mountain ranges starting with a single mole hill.