Wilkinson, Koh Are Latest in the Borking Sweepstakes

Posted April 10, 2009 at 3:48pm

The debasement of our public discourse, and especially of those who make the choice to go into public service, has been a serious concern of mine and many others for a long time. It certainly goes back at least to the sliming of Ronald Reagan’s Supreme Court nominee Robert Bork. The term “borking— was coined after Senators piled on, and a reporter even tried to check out which videos he had rented to see if he could be nailed over either bad taste or porn, which led to the term “borking.—

[IMGCAP(1)]It included the way the Senate treated one of its own, John Tower, when he was nominated to be secretary of Defense in 1989 and got slimed over allegations of personal impropriety. It got worse in the Clinton era and beyond.

I began to think about this again when I heard that a group of University of Virginia students were so upset about the choice of Judge J. Harvie Wilkinson to be commencement speaker that they have started an on-line petition drive to get him removed, and have at least talked about disrupting the graduation service. One person commented on a blog with: “This man is a menace, and should be stopped.—

Wilkinson is a conservative who has authored some controversial decisions, including Hamdi, which the Supreme Court reversed. (That is probably a major motivation for the opposition.) But anyone who has read Wilkinson’s writings, in court opinions or elsewhere (including in his previous career as a journalist), would have to conclude that he is careful, judicious in the best sense of that term, and as close as we have in America to an heir to Lewis Powell, one of the greatest Supreme Court justices of the 20th century. Would that all judges could have Wilkinson’s judicial temperament and intellectual depth. Trying to deny him the right to speak or debasing the reasons for selecting him to give the commencement address at his alma mater is about as silly as trying to block the president of the United States from speaking at Notre Dame.

To be sure, the opposition to and nasty language about Wilkinson is small potatoes at this point. Larger potatoes, rotten tomatoes and piles of excrement define the attacks on Harold Hongju Koh, President Barack Obama’s nominee to be the State Department’s legal counsel. Koh is in the midst of a sustained attack from opinion pieces to blogs to talk radio to cable television, including charges that he wouldn’t mind if Sharia replaced American law, or at least that he would lead the way to make sure that international law or the laws of other countries trumped the Constitution of the United States.

I met Koh in the 1990s, when he was serving as assistant secretary of State for human rights; I was on a panel or two with him, found him to be smart, charming and insightful. I kept up contact with him over the years, including throughout his tenure at Yale Law School; I would get up to New Haven frequently, both to visit a son when he was a student there and for my wife’s law school reunions, and I was frequently asked by Dean Koh to come by and participate in programs at the law school. I also read his superb book “The National Security Constitution,— a compelling defense of a robust role for Congress and the judiciary against an overweening executive in the national security realm, and some of his 175 articles that go along with his eight books.

To know Koh is to know that he is as smart and deep as any legal scholar in the country, and also to know that he loves the country and the Constitution as deeply as anybody. He has strong views — including that the United States should abide by the Geneva Conventions that we championed and signed and that the U.S. should not allow torture, putting him in the same camp as that dangerous radical Sen. John McCain (R-Ariz.). He also believes that there are times when the courts should pay attention to what other countries have done in their legal systems and legal rulings, putting him in the same camp as that dangerous left-winger Antonin Scalia.

To pick one example, when Scalia dissented from a ruling in McIntyre v. Ohio Elections Commission that upheld anonymous electioneering, he referred to laws in Australia, Canada and Britain that blocked anonymous election speech to bolster his argument.

Or we can put Koh in the same camp as that dangerous radical Alexander Hamilton, who wrote in Federalist 63: “An attention to the judgment of other nations is important to every government … in doubtful cases, particularly where the national councils may be warped by some strong passion, or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. … [H]ow many errors and follies would [America] not have avoided, if the justice and propriety of her measures had in every instance been previously tried by the light in which they would probably appear to the unbiased part of mankind?—

Koh does not in any way believe that American law or the Constitution should be subordinated to international law. He does believe that America should abide by the treaties and covenants it signs, and should hold itself to a high standard on human rights, so that it does not lose any standing to criticize other regimes. These are not radical views.

So why is Koh, who was confirmed unanimously for his previous post in the State Department, getting slimed by the likes of Glenn Beck, despite a warm endorsement from conservative icon Ted Olson? I suspect it has less to do with the job he is up for and more because conservatives see him as a serious prospect down the road for the Supreme Court (among other things, Koh clerked for conservative Judge Malcolm Wilkey and for Justice Harry Blackmun). A lead role in these attacks comes from law professor Steven Bainbridge, who wrote on his blog a couple of years ago, speculating about possible Supreme Court nominees in a Democratic administration: “Conservatives need to get ready to turn Koh into a verb synonymous with Bork.— (Don’t look for this damning quote on his blog; it has mysteriously disappeared in recent weeks.)

I don’t want to see Harvie Wilkinson, Harold Koh or any other distinguished person of character, quality and integrity borked any more. We need Dick Lugar (R-Ind.), a Senator of real character, quality and integrity, and his colleagues on the Foreign Relations Committee to show through their statesmanship that this kind of attack is not rewarded by having Koh blocked, put in long-term limbo on a hold, or filibustered successfully. By preventing such actions, we can move our process back to a less mindlessly destructive one.

Norman Ornstein is a resident scholar at the American Enterprise Institute.