Post-American Presidency (6 page)

Besides her internationalism, Sotomayor had something else in common with the president who appointed her: a predilection for
racial grievance mongering and manipulation. While studying law at Princeton, Sotomayor’s writings demonstrated a preoccupation with racial politics: she was the author of
Race in the American Classroom
and
Undying Injustice: American “Exceptionalism” and Permanent Bigotry
. She saw the distinctive features of America, the things that made this nation powerful and free, as liabilities rather than virtues. Instead of Ronald Reagan’s “shining city on a hill,” America in the reign of the post-American president and his post-American advisers and colleagues would become less and less exceptional, less and less distinctive, less and less different from the rest of the world.

And in so doing, it would cease to be the refuge to which those yearning to breathe free would turn. For the tired, the poor, the huddled masses would soon come to know that there was no freedom, no prosperity, no legal protection for them in the United States of America. Not anymore.

Sonia Sotomayor also showed a distaste for the Second Amendment similar to that of the president, who derided those who “cling” to their guns. In
Deadly Obsession: American Gun Culture
, she argued that the very idea that private citizens could own guns in the United States was based on a misunderstanding. There was, she claimed, actually no right to bear arms that was guaranteed to citizens by the Second Amendment. Rather, she said, this right pertained to militias only.
³⁸

Not surprisingly, Sotomayor was not the only Obama appointment that struck at the very principle of American sovereignty.

TRANSNATIONALISM, SHARIA, AND AMERICAN LAW

Obama seemed determined to turn over the Land of the Free to global forces with interests decidedly different from the best interests of Americans. And that included Islamic supremacists—whose attachment
to Sharia was apparently just fine by Harold Koh, the internationalist lawyer whom Obama tabbed in April 2009 to become the legal adviser for the State Department.

Obama should have abandoned the climate warming hoax as soon as “the miracle” happened. But this would never happen. Global warming is a tool to “level the playing field,” to weaken America, and to burden her with crippling taxes while enriching her enemies and competitors.

Superficially, Koh had impressive enough credentials. He served as a law clerk for Supreme Court Justice Harry Blackmun in 1981 and 1982, and then worked in the Justice Department’s Office of Legal Council (OLC) from 1983 to 1985. He became a professor at Yale Law School in 1985 and dean in 2004, and from 1998 to 2001 he was assistant secretary of state for democracy, human rights, and labor. He has written many books, including
Transnational Legal Problems
(with Harry Steiner and Detlev Vagts) and
Transnational Litigation in United States Courts
, as well as numerous articles and monographs, including one entitled
International Law as Part of Our Law
, which was published in
The American Journal of International Law
.

The titles reveal a substantial focus of Harold Koh’s legal scholarship—one that raised concerns among Obama’s critics that he was appointing an internationalist, someone who would not necessarily have America’s best interests at heart, to a key position at State. Koh’s own words confirm this: “As American lawyers, scholars, and activists,” he wrote in 2003, “we should make better use of transnational legal process to press our own government to avoid the most negative and damaging features of American exceptionalism.” These “negative and damaging features” include “U.S. insistence upon double standards,” including having the effrontery to think that “a different rule” should “apply to itself than applies to the rest of the world.”

Koh zeroes in on the freedom of speech, warning that “our exceptional
free speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” What can be done to solve these “problems”? The Supreme Court “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation.”
³⁹

In a world that generally values the freedom of speech, as well as the freedom of conscience and the legal equality of all people, far less than does the United States of America, the implications of this are clear: erasing the distinctions between American law and international law would mean an erosion of the rights and freedoms of Americans, and a concomitant deterioration of American society.

Referring to the implications of Koh’s appointment, Glenn Beck thundered: “Once we sign our rights over to international law, the Constitution is officially dead.” However, Obama’s defenders were dismissive: Pamela S. Karlan, a professor at Stanford Law School, said that concern over Koh’s internationalism was “all just an attempt to whip up hysteria.” White House spokesman Reid Cherlin said it was all an invention of the right-wing attack machine out to discredit Obama by misrepresenting one of his key appointees: “You have political opponents of the president who are motivated by their opposition to his agenda who are mischaracterizing or fabricating statements by Dean Koh.”
⁴⁰

In reality, however, none of the genuine concerns about Harold Koh’s internationalism and slight attachment (at best) to American sovereignty were fabricated. Koh really was a committed transnationalist who believed that American law should be subject to foreign authorities and informed by foreign precedents—a fact that should make every American demand that Barack Obama fire him. But, of course, Obama will never do that: there is no indication that the post-American president’s views on transnationalism differ in any serious way from Koh’s.

Legal expert M. Edward Whelan III explains that transnationalism “challenges the traditional American understanding that (in the summary, which I slightly adapt, of Duke law professor Curtis A. Bradley) ‘international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.’ Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.”

Whelan is the president of the Ethics and Public Policy Center, the former general counsel to the U.S. Senate Committee on the Judiciary, former principal deputy assistant attorney general for the Office of Legal Counsel in the U.S. Department of Justice, and like Koh a former law clerk for a Supreme Court justice (in Whelan’s case, Antonin Scalia). “Harold Koh’s transnationalist legal views,” he declared before Koh’s nomination as State Department legal adviser was approved, “threaten fundamental American principles of representative government and… Koh would be particularly well positioned as State Department legal adviser to implement his views and to inflict severe and lasting damage.… Among other things, he would be advising on the legal positions that the United States should be taking in federal courts on issues arguably implicating international law and before international bodies; he would be counseling State Department officials on international negotiations, treaty interpretation, and treaty implementation; and he would be a major player in interagency disputes on all these matters.”

“What transnationalism, at bottom, is all about,” Whelan explains, “is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.” In contrast, “proponents of a nationalist
jurisprudence view ‘foreign legal precedents’ as ‘an impermissible imposition on the exercise of American sovereignty.’”

And Harold Koh is a “leading advocate of transnationalism. Further, on the spectrum of transnationalists, ranging from those who are more modest and Americanist in their objectives and sympathies to those who are more extreme and internationalist (or Europeanist), Koh is definitely in the latter category. He is also very smart, savvy, determined, and dogmatic.”

Whelan sees Koh’s embrace of transnationalism as essentially absolute: “If there are any limits—beyond intrusions on recognized individual constitutional rights—that Koh would place on the legitimate and desirable use of the treaty power to regulate domestic social and economic policy, I have not yet run across them in his writings.”

Resistance to this internationalism would be very difficult. Whelan explains: “The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL [customary international law] norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office. Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary.”
⁴¹

Among numerous questionable and controversial statements, Koh had said that the “war on terror”—a term that the Obama administration had by then already quietly abandoned—was “obsessive.” And in a 2007 speech that became notorious when Obama nominated him, Koh opined (according to a lawyer who was in the audience, as reported in the
New York Post
) that “in an appropriate case, he didn’t see any reason why sharia law would not be applied to govern a case in the United States.”
⁴²

Asked for comment, a spokeswoman for Koh waved the incident
away: “I had heard that some guy… had asked a question about sharia law, and that Dean Koh had said something about that while there are obvious differences among the many different legal systems, they also share some common legal concepts.”
⁴³
What’s more, Robin Reeves Zorthian, president of the Yale Alumni Association of Greenwich, Connecticut, said that the
Post
’s account was “totally fictitious and inaccurate. I was in the room with my husband and several fellow alumni, and we are all adamant that Koh never said or suggested that sharia law could be used to govern cases in US courts. The subject of his talk was Globalization and Yale Law School, so, of course, other forms of law were mentioned. But never did Koh state or suggest that other forms of law should govern or dictate the American legal system.”
⁴⁴

What was at issue, however, was not whether Koh had said that Sharia should “govern or dictate the American legal system.” The question was whether he said it could be used to determine the outcome of a particular case in an American courtroom. And given Koh’s demonstrable affinity for the use of international legal principles and precedents in American courts, there was no reason why he would not have said something like this, and certainly no indication that he would oppose such a practice.

Perhaps Koh had something in mind akin to what the Archbishop of Canterbury, Rowan Williams, was thinking when he made a notorious statement in 2008 that Islamic law was “unavoidable” in Britain. Williams didn’t mean that Britain would become a Sharia state, but only that Muslims could have recourse to private Sharia arbitration for marital disputes, inheritance matters, and the like. Stonings and amputations? Of course not. “Nobody in their right mind,” said Williams, “would want to see in this country the kind of inhumanity that’s sometimes been associated with the practice of the law in some Islamic states; the extreme punishments, the attitudes to women as well.” But,
he concluded, the idea that “there’s one law for everybody… I think that’s a bit of a danger.”
⁴⁵

Equality of treatment and equality of rights for all people? A dangerous concept!

One may have hoped that Koh wouldn’t go that far, but in saying that “in an appropriate case” Sharia legal principles could be applied in the United States, he seems to be opening the door to Sharia courts in the United States, instituted after the pattern already established in Britain.

Sharia courts are already operating there, and multiculturalists dismiss concerns about them by insisting that they’re just private, voluntary arbitration tribunals, like similar arbitration panels for Jews and Catholics. The analogy, however, is not exact. Jewish family courts and Catholic marriage tribunals claim authority only over those who accept that authority, i.e., those who believe in the tenets of those faiths. What’s more, such courts claim no authority beyond their narrow purview, such that most legal matters are beyond their scope. Islamic law, by contrast, asserts itself as the only legitimate law for all areas of human life—not just marriage and family law, and by no means just religious law, but as the sole legal foundation for every aspect of social and political life.

As such, Sharia claims jurisdiction over non-Muslims as well as Muslims. The great Pakistani Islamic theorist of the twentieth century, Sayyid Abul Ala Maududi, whose writings remain internationally influential among Muslims today, wrote that non-Muslims have “absolutely no right to seize the reins of power in any part of God’s earth, nor to direct the collective affairs of human beings according to their own misconceived doctrines.” If they do, “the believers would be under an obligation to do their utmost to dislodge them from political power and to make them live in subservience to the Islamic way of life.” In accord with this, there is no concept in the Qur’an, Islamic tradition,
or Islamic law of non-Muslims living as equals with Muslims in an Islamic state: Muslims must be in a superior position.

And so it comes as no surprise that those private Sharia courts in Britain are already coming into conflict with British law. Recently Sharia courts in Britain have been allowed to adjudicate cases of domestic violence rather than have those cases referred to the criminal courts, even though the Qur’an directs men to beat disobedient women (4:34)—a directive likely to find the battered woman’s complaint falling on deaf ears in a Sharia court.