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Who Is Harold Koh?

By INVESTOR'S BUSINESS DAILY | Posted Tuesday, March 31, 2009

Law: President Obama's nominee for State Department legal adviser could be a future Supreme Court pick. He believes U.S. law should be based on foreign precedent, and even Shariah law could find a home here.

We have commented many times on the opinion of a number of U.S. Supreme Court justices that American jurists should include foreign law and precedent in their decisions. In several prominent cases, this has already happened.

In a speech in South Africa, Justice Ruth Bader Ginsburg called the March 2005 Roper v. Simmons decision, in which a 5-4 majority ruled against executing murderers who were 17 or younger, "perhaps the fullest expressions to date on the propriety and utility of looking to the 'opinions of (human)kind.' "

Koh: Man of the world.

Koh: Man of the world.

More recently, Justice Stephen Breyer said: "We see all the time . . . how the world really . . . is growing together. The challenge (will be) whether our Constitution . . . fits into the governing documents of other nations." Whether our Constitution fits?

Agreeing with Ginsburg and Breyer is one Harold Koh, a former dean of Yale Law School who's been nominated by President Obama to be the State Department's legal adviser. He's an advocate of what he calls "transnational legal process" and argues that the distinction between U.S. and international law should vanish.

Koh believes laws of places like Zimbabwe and Sri Lanka should carry equal weight with the laws of Virginia and South Dakota, and that it's "appropriate for the Supreme Court to construe our Constitution in the light of foreign and international law" in its decisions.

He also believes foreign law trumps U.S. law on issues such as the death penalty. Echoing Ginsburg, he has said: "The evidence strongly suggests that we do not currently pay decent respect to the opinions of humankind in our administration of the death penalty. For that reason (italics added), the death penalty should, in time, be declared in violation of the Eighth Amendment."

In Lawrence v. Texas, which struck down that state's anti-sodomy laws, Justice Anthony Kennedy's majority opinion cited a 1967 British parliamentary vote repealing laws against homosexual acts and a 1981 European Court of Human Rights decision that such laws were in violation of the European Convention on Human Rights.

Agreeing with Kennedy, Koh himself filed an amicus brief in the case that argued that international and foreign court decisions compelled the Supreme Court to strike down the Texas law. Koh has also submitted an amicus brief to the Connecticut Supreme Court arguing that foreign precedents require recognition of a constitutional right to same-sex marriage.

He also values the opinions of the world's imams. A New York lawyer, Steven Stein, says Koh in 2007 told the Yale Club of Greenwich that "in an appropriate case, he didn't see any reason why Shariah law would not be applied to govern a case in the United States."

Koh thinks America is the bad guy on the world stage. He blasted Operation Desert Storm as a violation of international law despite the U.N.'s blessing. He supported the Sandinista move to get the International Criminal Court to force Congress to cut off funding of the Contras in Nicaragua.

In 2004, after Operation Iraqi Freedom had begun, Koh lumped the U.S. in with North Korea as part of an "axis of disobedience" regarding international law.

Koh says the Supreme Court is now divided between "nationalist" judges who believe our Constitution is the only one that counts and "transnationalists" who believe "we the people" should be changed to "we are the world."

The next appointment will tip the balance one way or the other, Koh says. He just might be Obama's first pick to fill the next vacancy. Neil Lewis of the New York Times last year said Koh was widely regarded as a leading contender.

This is the man who'll be giving Secretary of State Hillary Clinton legal advice. This is the man who could quite possibly be the next Supreme Court justice. This is Harold Koh.