NOT THAT ANYONE WOULD EXPECT LAW PROFESSORS TO UNDERSTAND THE CONSTITUTION...:

The Demonization of Harold Koh (Bruce Ackerman, 4/07/09, Daily Beast)

It’s true that Koh has condemned the Bush Administration’s violations of international law. But so has President Obama, and we should expect him to nominate a man who will carry through on his commitment. Conservatives should recognize that they lost the election, and that the State Department will indeed return the country to its traditional role as a leading advocate of international law.

While Koh’s internationalism is mainstream, his truly distinctive views deal with the relationship between Congress and the presidency in developing foreign relations law. His landmark book, The National Security Constitution, is a sobering review of the historical process through which the imperial presidency has broken from congressional oversight. Koh’s work represents the most thoughtful effort to restore Congress to its rightful role as a check on presidential power in foreign affairs.

In contrast to most legal critics, Koh doesn’t succumb to the illusion that the Supreme Court will take the lead in insisting upon a robust congressional role. He calls for the legislative enactment of a National Security Charter that would require the president to consult Congress on key issues.

...but the notion that the Senate ought to turn a blind eye to an appointee who wants to elevate international law above it and try to rewrite it legislatively -- which is anticonstitutional by definition -- is bizarre even by their low standards. Even setting aside Mr. Koh's views--which Professor Ackerman concedes here--the role of advise and consent has some meaning, no? The Senate isn't meant to just rubber-stamp nominations because the president was elected.

Posted by Orrin Judd at April 7, 2009 9:13 PM