Harold Koh will face the Senate Foreign Relations Committee this afternoon, and, barring any unusual shenanigans, his nomination to be State Department Legal Adviser will move closer to the floor. But today’s hearing presents us with an opportunity to take the temperature of rank and file Republicans, who have decided to make an issue of Koh because, they say, Koh is a “radical transnationalist” who, through undue deference to international institutions and treaty obligations, will subvert and destroy the U.S. legal system.
Of course, this argument has little if any purchase among liberals, moderates, and academics. Two prominent conservatives–Ted Olson (who served as OLC-Chief under Ronald Reagan and Solicitor General under George Bush) and Ken Starr (the independent counsel who pursued Bill Clinton with unusual vehemence)–have even come forward to call it nonsense.But that hasn’t stopped the rank and file. And there are a lot of rank and filers in the minority. Their conduct and questions and votes will be noteworthy (and could make for some interesting video). More noteworthy, though, will be the ultimate decision of the committee’s ranking member, Richard Lugar (R-IN)–a moderate among Republicans, and often an honest broker. If Lugar supports Koh, it’ll be a sign that (petty obstruction notwithstanding) he’s on his way to confirmation. If he votes no, or pulls an Arlen Specter and abstains, it’ll be a sign that the Koh wars will carry on for a while.