Over at Bench Memos, our friend Ed Whelan has started a series in which he considers some of the individuals who have been mentioned as prospective nominees to the Surpeme Court, should Barack Obama be elected. Ed begins with Harold Koh, dean of Yale law school.
Koh is a self-described “judicial transnationalist.” Here is how Koh explains this philosophy:
[The transnationalist] tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest to the â€œmutual interests of all nations in a smoothly functioning international legal regimeâ€ and must â€œconsider if there is a course that furthers, rather than impedes, the development of an ordered international system.â€
Generally speaking, the transnationalists tend to emphasize the interdependence between the United States and the rest of the world, while the nationalists tend instead to focus more on preserving American autonomy. The transnationalists believe in and promote the blending of international and domestic law; while nationalists continue to maintain a rigid separation of domestic from foreign law. The transnationalists view domestic courts as having a critical role to play in domesticating international law into U.S. law, while nationalists argue instead that only the political branches can internalize international law. The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system.
Ed notes that, true to his transnationalist philosophy, Koh filed an amicus brief in Lawrence v. Texas arguing that international and foreign court decisions compelled the Supreme Court to strike down Texasâ€™s ban on homosexual sodomy. And he submitted an amicus brief (to the Connecticut supreme court) arguing that comparative precedents from foreign countries require recognition of a constitutional right to same-sex marriage.
Given Koh’s paper trail, one tends to doubt that Obama would put him forward, particularly since there is no shortage of like-minded left-wing lawyers and judges who could be confirmed at a lower political cost. Yet if a vacancy arises when Obama is flush with electoral success, or is still riding high later on, it’s possible to imagine him picking his first choice. And it’s easy to imagine that his first choice would be someone very much like Koh.
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