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Why Is this Distinguished Asian American the Target of a Smear Campaign?

By Monica Youn

Background: Last month, President Barack Obama nominated Harold Hongju Koh, Dean of Yale Law School, to serve as legal advisor to the State Department, a position that requires Senate confirmation.  Since the nomination, Dean Koh has been targeted by right-wing commentators, including Meghan Clyne, in a New York Post op-ed titled “Obama’s Most Perilous Legal Pick” and Glenn Beck and Jay Sekulow, in a Fox News segment titled “Harold Koh’s Views: A Threat to Democracy?” This fact sheet brings you the true facts behind these unfounded smears.

  1. Dean Koh is the first Asian American to be widely considered to be on the shortlist for a Supreme Court nomination.  

There are currently only 10 Asian-American federal judges on active status out of 678 federal judgeships – only 1% of federal judges are Asian-American.   Historically, most Supreme Court judges have been elevated from the federal courts of appeal, but there is only one Asian-American judge on any federal appeals court – Judge A. Wallace Tashima – and he has taken senior status since he is 75 years old.

  1. Dean Koh served in the U.S. government under both Presidents Reagan and Clinton, and has previously been unanimously approved by the U.S. Senate.

Dean Koh served in the Department of Justice’s Office of Legal Counsel under President Reagan from 1983 through 1985.  Under President Clinton, he served as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor, a position for which he was unanimously confirmed by the U.S. Senate.   He previously had served on the Secretary of State's Advisory Committee on Public International Law.  

  1. Dean Koh does not believe, nor has he ever stated, that “judges should interpret the Constitution according to other nations’ legal “norms,’” as Meghan Clyne wrote in the New York Post.

Instead, Dean Koh’s scholarship has focused on “transnationalism,” an approach that highlights common legal concepts and principles among various legal systems.  Current Supreme Court Justices have expressed similar views.  For example, Reagan-appointee Justice Anthony Kennedy wrote in the 2005 juvenile death-penalty decision Roper v. Simmons: “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”  Similarly, as Justice Stephen Breyer stated in a 2003 speech at the American Society of International Law, there is “enormous value in any discipline of trying to learn from the similar experience of others.”   Dean Koh has never stated that the laws of other nations or international treaties should take precedence over the U.S. Constitution.

  1. Dean Koh does not believe, nor has he ever stated, that that “Sharia law could apply to disputes in US courts,” as Meghan Clyne wrote in the New York Post.

The Post article’s report of a single person’s story that Dean Koh stated at a Yale Club of Greenwich lunch that "in an appropriate case, he didn't see any reason why sharia law would not be applied to govern a case in the United States” has now been proven to be “totally fictitious and inaccurate,” according to the organizer of the lunch and multiple other attendees, as the New York Times has reported.

  1. Dean Koh does not believe, nor has he ever stated, that an international treaty, rather than the U.S. Constitution, should dictate whether the death penalty may be constitutionally applied to juvenile offenders, as Meghan Clyne wrote in the New York Post.

The United States Supreme Court has already held, in Roper v. Simmons (cited above) that the juvenile death penalty is unconstitutional.  Justice Anthony Kennedy’s majority opinion noted the treaty to which Ms. Clyne refers, stating, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. … The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

  1. Dean Koh did not oppose Operation Desert Storm, as Meghan Clyne claimed.

In fact, Dean Koh praised Desert Storm as an example of multilateral action.  

  1. Dean Koh never called President Bush the “Torturer-in-Chief,” instead he has merely said that the Constitution does not authorize torture.

The quotation above was taken out-of-context from a law review article, where Dean Koh stated, “Competing schools of constitutional interpretation all accept that the Constitution does not authorize the President to be Torturer-in-Chief.”   President George W. Bush himself has expressed similar views, stating in a 2006 interview, “I don't think a president …can order torture, for example. I don't think a president can order the assassination of a leader of another country with which we're not at war.”  Sen. John McCain has also expressed nearly identical views.

  1. Dean Koh does not believe, nor has he ever stated, that Mother’s Day should be abolished.

Instead, Dean Koh has recommended that the United States consider joining the Convention on the Elimination of Discrimination Against Women (CEDAW).  As Dean Koh stated in a law review article on this topic: “Rather than denigrating motherhood, the CEDAW’s central aim is to support motherhood, by promoting women’s freedom to make choices on an equal basis with men. Nothing in that goal conflicts with the American tradition of celebrating both Mother’s Day and Father’s Day every year, as expressions of this country’s commitment to full gender equality, consistent with the nondiscrimination goals of the CEDAW.”

  1. Prominent conservative lawyers who have held positions in the Administrations of Reagan, George H.W. Bush, and George W. Bush have supported Dean Koh’s nomination.

Former Solicitor General Theodore Olson, a leading conservative lawyer who served as U.S. Solicitor General under President George W. Bush, stated, “I have the greatest respect for Harold Koh.  He’s a brilliant scholar and a man of great integrity.”  On April 2, 2009, Brian G. Cartwright (General Counsel of the SEC under President George W. Bush); David D. Hiller (Associate Deputy Attorney General under President Reagan); Alan Charles Raul (Vice Chairman of the Privacy and Civil Liberties Oversight Board under President George W. Bush); and Nicholas Rostow (General Counsel and Senior Policy Adviser, U.S. Permanent Representative to the United Nations under President George W. Bush) sent a letter in support of Dean Koh’s nomination to the Senate Committee on Foreign Relations.

  1. Dean Koh’s distinguished record and achievements make him eminently qualified for government service.

As the State Department has stated with regard to the nomination: “Dean Koh is universally respected for his legal scholarship, and previously served as an Assistant Secretary of State - and was praised for his work by Republicans and Democrats alike. President Obama and Secretary Clinton strongly believe he's the right person for the job.”  The son of Korean immigrants and a native of Boston, Dean Koh overcame childhood polio to pursue a distinguished career.  He has been a Marshall Scholar at Oxford, a Harvard Law graduate, and a former Supreme Court clerk, and is a leading expert on national security law and international law and one of the most influential and productive scholars and practitioners in his field.  Koh has authored or co-authored eight books and won scores of awards for his human rights work, including the Pacific Islander, Asian, and Native American (PANA) Distinguished Service Award, the Asian American Bar Association of New York Award, the Korean American Coalition Public Service Award, and the Asian-American Legal Defense & Education Fund, Justice in Action Award.

To support the nomination of Harold Hongju Koh, please call or write your Senator, as well as members of the Senate Committee on Foreign Relations, in front of whom Dean Koh must testify in order to be confirmed.

Senator Richard Lugar
(317) 226-5555
Senator John Kerry
(202) 224-2742

U.S. Senate Committee on Foreign Relations
Minority Phone: (202) 224-6797
Majority Phone: (202) 224-4651

Tell the person who answers the phone at these four phone numbers that you strongly support Dean Koh’s nomination for Legal Adviser to the State Department, and that you hope he is scheduled promptly for a hearing, and then unanimously approved by the Foreign Relations Committee and confirmed by the U.S. Senate.

Also, a petition in support of Dean Koh’s nomination is being circulated at:

Originally posted to Writestuff on Tue Apr 07, 2009 at 02:28 PM PDT.

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