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April 13, 2009

Defending Dean Koh and Judge Wilkinson from Borking Attempt

The American Enterprise Institute's Norman Ornstein has a powerful rejoinder to the furious attacks on Dean Koh, linking them to the attacks on Judge Wilkinson (of which, I'm sorry to say, I was not previously aware).

Herewith a sample of the argument:

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?"


Posted by Anupam Chander on April 13, 2009 at 10:13 AM | Permalink

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