So, I was going to ask the same thing Anderson did, except probably more politely and with a request for specific examples of how the State Dept (as opposed to DOJ) can change the legal climate.

RLG, there has to be some point at which a nominee's policy's are so far out of the mainstream as to be unacceptable to the Senate. Bolton for UN strikes me as an apt example.

Policy just doesn't cut it

What if a nominee advocated a return to slavery? Or, even worse, was anti-abortion?

The Left took down John Bolton, because he offended certain of their base, and now the Right is gonna take down this guy, for offending certain of their base.

The 2 Foggy Bottom guys themselves are just pretexts, and the offices formalities, it seems. But the real arguments are real, and both sides were/are serious about them.

except probably more politely

Well, that goes without saying. Tho I am sort of digging the idea that the mild-mannered "Legal Advisor" to the State Dep't, who dresses in pinstriped suits and has a high squeaky voice, by night dons his black tights &cape and becomes the Evil Super-Villain SOVEREIGNTY CRUSHER, with "tremendous power" to unmake the very legal fabric of the cosmos ... er, the American portion thereof, anyway.

Because I'm not quite sure what changes the ESV would be able to make in our laws, without the "advice &consent of the Senate" which I recall having read about somewhere very, very recently.

The Legal Advisor is the chief interpreter of international law for the Secretary of State. And since the Secretary of State's views on international law are sometimes binding on other agencies (which, for example, cannot themselves negotiate or sign agreements without her permission) and always influential, the Legal Advisor's interpretations may indeed become effective law of the land. Say, for example, the Legal Advisor address the question of whether or not a particular treaty is self-executing (that is whether it becomes binding law upon sigining or requires an affirmative act of Congress to substantively become US law). Even if that view does NOT itself constitute law it would (unless overruled by the President (or in rare cases DOJ-OLC)) become effective law within the Executive, binding agenices to abide the requirement as a matter of policy and not to conduct activity (domestically or internationally) in conflict with that treaty. I can imgagine many international treaties that are hortatory in nature that we would not wish to become binding US policy.

Obligatory hypocrisy notice:

Well, if no lesser office really matters, why were the Democrats so upset about (and fought so hard against) the appointments of the likes of Bolten?

Indeed, the President is entitled to substantial deference in his choice of executive officers. He won the election, and that should have an impact. However, the mere fact that all executive branch officials ultimately answer to the President and in theory are to pursue his policies rather than their own does not mean that those officials have no power, that their views are immaterial and irrelevant. Hillary Clinton as Secretary of State handles foreign policy matters differently than some other potential appointee.

Moreover, the President is responsible for many decisions and issues, few of which can actually be debated in public during a long campaign. We have historically used the confirmation process to conduct specific policy debates on such issues. As long as the opposition doesn't resort to character assassination in order to achieve a policy goal, it's entirely appropriate to deny confirmation as a part of that larger debate.

To notice that he will indeed have power to affect U.S. interests in such a position is hardly to claim that he will have evil super powers. Anderson is following a popular rhetorical trick of attributing to one's opponent absurd and extreme arguments not actually made.

Moreover, when the Senate consents to someone, it is to some extent putting its imprimatur on the views that person is likely to espouse in the policy position to which he is appointed. Much is made, for example, of the fact that most Republicans voted to confirm Ruth Bader Ginsburg to the Supreme Court. The fact is often touted as evidence that her views weren't out of line with the mainstream.

If some other President were appointing an individual with a history of promoting white separatist ideas, for example, nobody would suggest that his views (even in an area not related to his new policy responsibilities) are immaterial. And the Senate would certainly refuse on principle to put its seal of approval on such views by consenting to the nomination.

Koh's views on the power of international law to constrain our domestic law are indeed extreme. The Senate should not endorse such views, and should refute them by rejecting the nomination.

Even if that view does NOT itself constitute law it would (unless overruled by the President (or in rare cases DOJ-OLC)) become effective law within the Executive, binding agenices to abide the requirement as a matter of policy and not to conduct activity (domestically or internationally) in conflict with that treaty.

OMV, the Answer Man!

Thanx, but it's a little tricky for me to think of anything really awful Koh could do that wouldn't result in (1) a shitstorm that would (2) provoke President Wishwash into rescinding whatever it is.

.. Tho since Kopel's on this, I infer that "gunz!" figures in the answer somewhere.

John Bolton believed the UN shouldn't exist. I'm not sure that count as a policy-based reason for rejecting him as Ambassador to the UN.

Johnny Canuck -- The US signs many treaties that are not self executing and then enacts them into positive law with various limitations, caveats and other restrictions that are consistent with US constitutional law. This is completely within our rights since we can condition how and what we sign up for.

Moreover, of course, often the interpretation of broad pronouncements (e.g. UN Conventions against Racisim) are subject to ... shall we say, "unusual" implementation at the national level (e.g. the UN equation of Zionism with Racism) that we would not want to become automatically binding on the US by act of the UN. And so ... we say that we reserve the right to interpret international agreements consistent with our understanding.

the mild-mannered "Legal Advisor" to the State Dep't, who dresses in pinstriped suits and has a high squeaky voice

Here I thought you had objected to various Bush Administration actions based on some sort of principle, and it turns out you go by vocal timbre, like some sort of house pet.

This suggests a winning strategy for 2012 - proud American exceptionalism for some, squeaky chew toys for others!

This guy is a lawyer. Make no mistake, he has to be watched.

Don't look now, but you're surrounded!

[Though I would note that policy does cut it. Elections have consequences, including those where Republicans win.]

As long as Koh's legal vision doesn't include expanding the power of the Executive to the point where it thinks it can Constitutionally torture people to death in secret overseas prisons, he's fine with me.

Talk about diminishing America...

I read Koh's 'Exceptionalism' article. It's no suprise that aiders and abettors of the illegal war that Koh identified do not favour his nomination.

The Senate's duty to be especially careful on Advice and Consent would seem to be at its apex when an appointee's record shows a long-standing determination to weaken the existing constitutional sovereignty of the United States of America.

Translation: I don't like his politics.

huskylaw,

The United States has NEVER acknowledged the right of United Nations Resolutions (as opposed to Security Council resolutions) to be binding--which I think is an eminently good thing. I do not want an anonymous bureaucrat, unaccountable to American officials in any matter, to be setting American polity.

Anderson, you used to contribute something besides snark. What happened?

A post as meritless as this does not merit anything beyond snark.

As Huskylaw (you in Seattle, Husk?) notes, Kopel relies on an unstated premise that is simply risible: ANY diminuition of sovereignty is to be avoided.

On that logic, the 13 states would never have assented to the Constitution which Kopel now professes to be so interested in defending against Super-Koh.

I doubt whether sovereignty is a good in and of itself, but regardless, even if it were a good, it would still be a good that could be diminished in exchange for benefits.

And I continue to doubt that the legal advisor to State can singlehandedly, unilaterally make any significant dent in American sovereignty without the involvement of the Senate.

I guess "reducing American sovereignty" includes restricting the ability of Mexican drug lords to buy high tech weaponry from American gun dealers.

Maybe, 24, people will start paying attention when you point out what law Koh broke by suggesting that city residents get ID cards.