Harold Koh
I suppose this isn’t too surprising. What is surprising to me is that it is getting any attention in the mainstream media at all. Why on earth does anyone care what Glenn Beck things of this appointment (or anything else for that matter)? Or even what some conservative Republican Senator thinks, unless there are enough votes to filibuster. Last I recalled, their side lost the election. The primary objections to Koh seem to be (1) some trumped up charge that he wants to impose Sharia law, and (2) his vociferous criticism of the Bush administration’s abuses of the rule of law. I won’t dignify the first, but as to the second, see above. It’s the lawyers (conservative or not, see Jack Goldsmith) who were not critical of the treatment of rule of law under the last administration who have some ‘splainin to do, not those who were.
UPDATE: Perhaps I wasn’t clear. Go ahead and listen to Glenn Beck if you want to. War game the future civil war you think is coming. Take seriously Sen. Inhofe’s rantings about snowfall in the spring disproving global warming. I don’t care. My point is that Obama won the election, and, as Republicans never tired of pointing out regarding Bush’s nominees, Obama is entitled to appoint people who agree with him. Harold Koh is an honorable man, an esteemed scholar, and an eminently qualified lawyer. Until there appears to be a real reason to oppose the nomination (not just that he was critical of the last administration) or enough opposition to actually put the nomination in some sort of danger, Glenn Beck’s paranoid delusions about Sharia law or the other latest rumblings from the far-right wing echo chamber are simply not suitable to be featured in the New York Times, etc. It’s just not part of the news that’s fit to print.
UPDATE: From the comments, here’s a response to the Koh criticisms, from Jack Balkin (thanks Antonio).
I agree with your points about the rule of law and Glenn Beck. I will say that the dismissive attitude of those in the minority party isn’t becoming. Would anyone reasonably have accepted the “they lost the election” line to dismiss criticisms from the Democrats of then-Judges Roberts and Alito?
So, let’s see. In one short blog post you’ve managed to:
1) Make an ad hominem attack on a TV commentator because….well, we don’t know why, just because.
2) Put down all conservative Republicans not because you can engage their argument but simply because they’re conservative republicans–and therefore not to be listened to!
3) Use terribly divisive language (their side? aren’t we all Americans) and get upset with people who lost the election and still have the audacity to think they live in a democracy.
All in all, quite an accomplishment. Is that the modus operandi at Cornell?
Mark:
No. It’s Penalver’s personal modus operandi. He’s an intensely ideological liberal, which will become more evident if you read his stuff regularly. But he means well…
Mark:
My bad. Although what I said about Eduardo is true, I know nothing about “Cheeky Lawyer” other than what he said in his post. And yes, he is cheeky.
A response to the Koh allegations has been posted at:
http://balkin.blogspot.com/2009/04/defending-dean-koh.html
1) Make an ad hominem attack on a TV commentator because….well, we don’t know why, just because.
Glenn Beck is a prominent “conservative” commentator who is making some claims about Koh’s position which seem to be simply false. I would agree that we don’t know if the basis for Beck’s falsehoods are in some sort of “paranoid delusions” that he holds, or whether his lies are calculated or whether he is simply sloppy. But he is consistent in his falsehoods so it would seem reasonable to me to speculate that he at least suffers from some sort of underlying character flaw. Since strictly speaking paranoia can be considered a disease, one might argue that Eduardo is being generous here, since if Beck is suffering from this disease, we don’t have to hold him responsible for what he is saying. But I myself am inclined to see his lies as simply calculated.
2) Put down all conservative Republicans not because you can engage their argument but simply because they’re conservative republicans–and therefore not to be listened to!
In fact, you seem to be the one putting down “all conservative Republicans”. Beck isn’t making an argument. He is misrepresenting Koh’s position and is simply engaged in a slander. It is Beck who won’t engage in an argument since, in order to do so, he would have to accurately present Koh’s position before he engages it. For you to conflate Beck’s position with “all conservative Republicans” is doing a disservice to conservative Republicans.
3) Use terribly divisive language (their side? aren’t we all Americans) and get upset with people who lost the election and still have the audacity to think they live in a democracy.
It is Beck who is accusing Koh of being un-American and also claiming that this slander is some sort of “conservative” position. If you consider yourself a conservative, you might be more concerned that people like Beck are trying to put themselves up as your mouthpiece.
Why rip on Glenn Beck? Isn’t it obvious? The man is hilarious.
My only point was this: if we are going to say they lost the election, so their criticisms are mainly beside the point — something incidentally I tend to agree with — then we need to apply that equally. I think the criticisms of the Dems of Roberts and Alito were largely beside the point, but that’s not what the media thought and not what many liberals thought. I tend to think Presidents deserve to get their nominees confirmed or there should be a strong presumption in the favor of their nominees.
Now beyond the dismissive — they lost — sometimes criticisms have legitimacy. I think Glenn Beck deserves to be ignored because he has lost his marbles. And, while I haven’t dug into the criticisms of Koh, from my surface reading they seem pretty insignificant.
I don’t want to be seen as defending Beck or Inhofe. What I am defending is that the principle of “elections matter” applies across the board and beyond that we should look at what someone’s arguments are (there is a tension between those two, I admit). In this case, I will side with Peñalver over Beck and Inhofe.
By the way, you can find the whole Colbert clip, excerpted in Grant’s post, here: http://www.huffingtonpost.com/2009/04/01/stephen-colbert-rips-apar_n_181673.html
I agree with this last comment by Cheeky Lawyer. My “they lost” argument was meant for this train only (i.e., groundless and trivial smears). It’s just not news.
I suppose people are upset because Mr. Koh is [yet another] lawyer.
The defense is by Kenji Yoshino, not Balkin.
It would be more interesting if you could take on some of the more intellectually worthy critics of Koh. E.g., http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239142185, or Ed Whelan’s running commentary at http://bench.nationalreview.com