Douglas Kmiec, the “pro-life” law professor whose outspoken stumping for Barrack Obama dismayed former allies, recently speculated that the President-elect would likely tap Supreme Court Justices in the mold of David Souter and Stephen Breyer, both supporters of the Roe v. Wade abortion decision. Kmiec’s list includes Yale Law School Dean Harold Hongju Koh, a name also on other pundits’ short lists.
Given the ages of certain Justices — Ruth Bader Ginsburg and John Paul Stevens are 75 and 88, respectively, followed by Antonin Scalia and Anthony Kennedy, both 72 – it is likely that a first-term Obama Administration will get to nominate at least one jurist to the top bench and likely more.
A Koh nomination would revive debate over the importation of “transnational” social norms on contentious issues like abortion and “gay rights,” as well as over the concept of sovereignty. In his academic writings, Koh has redefined sovereignty as “a nation’s capacity to participate in international affairs,” blurring any distinctive nation-state identity. Koh goes on to say that the way a nation exercises sovereignty responsibly is to accept all United Nations (UN) documents and the UN human rights review process. Besides being a law professor and dean, Koh was a high-ranking State Department official during the Clinton years and likely advised in such controversial conferences as Cairo+5 and Beijing+5.
This past term, the Supreme Court took a step away from transnationalism in the case Medellín v. Texas , holding that domestic constitutional principles outweighed a World Court directive. Given the current composition of the Court, with four solid “conservative” votes — Chief Justice John Roberts and Associate Justices Samuel Alito, Clarence Thomas and Scalia – replacing Scalia could tip the balance in future cases. So too could the loss of Kennedy, who joined the Medellín majority and remains a swing vote.
Debate over the applicability of foreign norms has been most pronounced in death penalty jurisprudence. A 2004 case holding the execution of the mentally retarded to be unconstitutional referred in passing to the overwhelming disapproval of the practice by the world community. In that case, Atkins v. Virginia, Koh authored an influential “friend-of-the-court” brief arguing for the incorporation of international norms.
Koh’s efforts bore full fruit in the 2005 case Roper v. Simmons¸ where the Court cited international opinion as confirming the unconstitutionality of state juvenile death penalty statutes. Its reference to the Convention of the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR) earned a rebuke from Scalia, noting that the United States never ratified the CRC and made a reservation upon ratification of the ICCPR protecting individual states’ rights to impose capital punishment upon those aged 16 to 18 who commit murder.
Substantively more worrisome to social conservatives, however, is the importation of abortion and homosexual “rights” by the Supreme Court. In Lawrence v. Texas, the Supreme Court overturned state statutes criminalizing sodomy, referencing evolving international norms.
Koh is perceived as championing abortion and homosexual rights, pointing to developments in other jurisdictions as indicating a shift in world opinion that should be reflected in constitutional law. This past October, he chaired a panel discussion on “Transnational Perspectives on Sexual and Reproductive Rights” at a Yale conference which predicted “dramatic changes in the near future” in Supreme Court jurisprudence in these areas.
If nominated, the prolific Koh would be the first Asian-American jurist to be tapped for the Supreme Court.