Under the bus

I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

That's the written response of Solicitor General Elena Kagan (above left) to the query below by U.S. Senator John Cornyn (R-Texas), purportedly based on articles by Harold Hongju Koh (below right), formerly Yale Law Dean and now (following the protracted confirmation fight chronicled here) the State Department's Legal Adviser:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

These were among many written questions that Cornyn, Tom Coburn (R-Okla.), and other Senators posed in the runup to committee and full-Senate votes -- starting perhaps as early as today -- on whether to confirm Kagan as the next Associate Justice of the Supreme Court.
(Meanwhile, Robert Barnes reported yesterday in the Washington Post of Senator Coburn's complaint in a letter to the current junior Justice, Sonia Sotomayor. Coburn contended that the observation in an opinion for the Court Sotomayor joined -- that virtually no other country permitted juvenile life-without-parole sentences -- "'conflicts with your pledge to the Judiciary Committee and the American public 'not to use foreign law to interpret the Constitution.'")
Kagan's written response differs markedly from Kagan's "qualified defense" of foreign and international law, as I characterized her oral answers during committee hearings earlier this month.
Yet it appears consistent with others among Kagan's written responses (available in full here), which were released Friday. As detailed by the Wall Street Journal 's Jess Bravin, the responses place considerable distance between Kagan and certain schools of legal thought, among them critical legal studies and legal realism.
Even as the responses throw those theories under the bus, they embrace Justice Oliver Wendell Holmes, Jr. (below left) as the "one Justice in the last 100 years whose judicial philosophy has been most influential on the Court" -- and in so doing, gloss over linkages between Holmes and legal realism.
Contradiction is also inherent in the question and response quoted at the top of this post.
Cornyn's battery of questions concluded a long, interpretive passage about "-isms" and "-ists." The passage effectively relegates the "transnational" and the "national" to the status of movements that demand the faith of their disciples, rather than that of descriptions of reality-based phenomena. Too bad Kagan's response eschewed challenge of the question's premise in its haste to disown the "-ism" that the question presumes.

Job 1 for AG

This week U.S. Attorney General Eric Holder listed as "'probably my top priority'" getting Dawn Johnsen confirmed as Assistant Attorney General for the Office of Legal Counsel.
It's about time.
About time, that is, that a top Obama Administration official pushed publicly on this issue.
As we posted about this IntLawGrrls guest/alumna, Dawn (left) was named to head OLC, the branch of the Department of Justice responsible for giving advice on the gamut of legal issues the Executive Branch confronts, 'way back on January 5th. (photo credit) That was more than 2 weeks before President Barack Obama's inauguration, and a day before the swearing-in of the new Congress. But the upper chamber of that Congress has moved at the pace of a recalcitrant snail since then. The Senate Judiciary Committee voted favorably on the nomination, but on a narrow vote of 11 Democrats to 7 Republicans, with then-Republican Arlen Specter of Pennsylvania then abstaining. Since then, nothing -- or rather, as Legal Times' blog reports,"since then Democrats have been trying to cobble together a 60-vote bloc to end debate on her nomination in the full Senate."
That's proved a challenge -- far more than it ought to be for Dawn, whose record as an attorney and law professor is, put simply, stellar. Singing her praises is a spectrum of former Justice Department lawyers that's broad enough to include Reagan-era OLC head Doug Kmiec and his Clinton-era counterpart, Walter Dellinger. The Washington Post endorsed her.
Against her? Specter and Ben Nelson, Democrat from Nebraska, plus, according to Legal Times' blog, "Republicans, foremost among them Sen. John Cornyn (R-Texas)." (A GOP exception: Dawn's won the support of Richard Lugar, senior Senator from Indiana.)
Complaints remain those identified before:
►As legal counsel for the National Abortion Rights Action League, Dawn vigorously represented her client, and so litigated against encroachments on the law of the U.S. Constitution as set forth by the U.S. Supreme Court in Roe v. Wade (1973); and
►As a law professor and former acting head of OLC, Dawn spoke and wrote against the so-called "torture memos," the Bush-era OLC opinions that professed to give legal cover for post-9/11 detention and interrogation practices and policies.
By no means does either of these points constitute a basis for withholding confirmation.
Here's hoping that Holder -- who told a Senate appropriations subcommittee that OLC "is being run by capable layers but required the 'solidity and continuity' supplied by a Senate-confirmed assistant attorney general" -- will keep the pro-Johnsen pressure on.