A New Kind of Adviser


Last week, when stories about Obama’s first 100 days, the Specter switch, and the Souter resignation dominated the news cycle, the Senate confirmation hearing of Harold Koh wasn’t able to squeeze into the spotlight. That’s a shame, because Koh, who was tapped in March to direct the Legal Adviser’s Office in the State Department, could end up being one of Obama’s most significant appointments. A prominent lawyer and legal scholar, he would bring a range and intensity of positions and opinions on international law that the Legal Adviser’s Office has not seen for some time, if ever. That is good news, and that is bad news.The Legal Adviser’s Office has always been different than other executive branch offices making major legal policy decisions. The White House Counsel’s Office and Office of Legal Counsel (OLC) at the Justice Department are particularly good counterexamples. Both offices are generally directed by highly qualified lawyers who are known either for their involvement in intensely political activities for the president’s political party, or for their ties to ideological causes associated with the president’s political party. Party stalwarts have served as the White House Counsel (Lloyd Cutler for President Clinton, Fred Fielding for President Reagan and the second President Bush) and ideological stalwarts as the director of OLC (Antonin Scalia under President Reagan, and, if confirmed, Dawn Johnsen for President Obama).Typically, almost all of the junior lawyers in the White House Counsel’s Office, and many of the important lawyers in OLC, are affiliated with the political party of the president, too. Ainsley Hayes, the Republican who served in the White House Counsel’s Office to the Democratic President Bartlett on The West Wing, was about as fictional a character as network television has created since Alf. There are other lawyers in the executive branch working on constitutional issues, but they are litigating specific cases, and not establishing general policy.The lawyers in the Legal Adviser’s Office at the State Department are less overtly associated with partisan politics or particular ideological positions. Of the approximately 175 lawyers in the office, only one of them, its director, is a political appointee. The other lawyers in the office are technocratic civil servants, most enormously qualified, but not appointed from campaigns or from political offices. This technocratic reputation has helped the Legal Adviser’s Office in the past. It is part of the reason the last director of the office, John Bellinger, tried to limit (with some success) the excesses of President Bush’s legal strategy in the war on terror. And these efforts, then and in the past, are particularly significant because the Legal Adviser’s Office has so much in its portfolio. The lawyers in that office deal with a broad range of important legal issues--some international legal issues, some domestic constitutional issues--and almost all of them are centrally important to our foreign policy.Koh’s nomination could change that dynamic. Koh (who was the Dean at Yale when I was a third-year law student there) has been a major player in the leading recent battles about the content and importance of international law. He testified against the confirmation of Republican Attorney General Alberto Gonzales. He has written briefs about what international law has to say to our courts on issues like the juvenile death penalty. This is potentially dangerous for the Legal Adviser’s Office. A Legal Adviser with prominent preexisting views on international law issues might jeopardize the office’s impartiality, or at least might be seen as pushing a predetermined agenda. The right-wing element of the Republican Party, led by former Pennsylvania Senator Rick Santorum and Fox News personality Glenn Beck, have pulled selective excerpts from Koh’s previous writings to oppose his nomination. And you can bet Republicans are itching to level the same attack on Obama that Democrats used on Bush: that the president uses his lawyers to circumvent existing law for the sake of his policy goals. Because of Koh’s track record, this could be easier for them to do, and for them to do effectively. So Koh must be careful not to move the Legal Adviser’s Office closer to the model of the White House Counsel or the OLC and further from the model of a neutral arbiter.But Koh’s biography and background could create great rewards as well. Precisely because Koh has been thinking about international law, particularly in the area of human rights, for decades, he could have the serious authority afforded to a leading expert in a specialized field. On top of that, Koh knows how Washington works. Koh was in the Justice Department in the Reagan administration, and in the State Department during the Clinton administration. The technocratic (and sometimes politically tone deaf) ethos of the Legal Adviser’s Office has made its legal opinions--and international law more generally--less relevant than it might be, and the strength of Koh’s expertise, coupled with his political savvy, could give the office some newfound influence.No doubt, the stakes are large. A major office in the executive branch--and America’s role in the international legal community more generally--are in a unique position because Koh is not the normal nominee for this position. And Koh will be on the short list for any Supreme Court openings, so his performance in this job might have a lot to say about whether he will be wearing a robe in the job he takes after this one in Foggy Bottom.David Fontana is Associate Professor of Law at George Washington University Law School.

By David Fontana

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