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Commentary: The perils of public service

This article first appeared in the St. Louis Beacon, June 26, 2009 - The Senate has, at long last, confirmed Harold Hongju Koh to be legal adviser to the State Department, by an overwhelming 62-35 vote. In so doing, the Senate ends the effort of Senate Republicans to prevent him from serving by denying him a vote and it hopefully ends the action by some right-wing citizens to attack the good name of an outstanding person and public servant. We cannot erase that history, but perhaps people from all sides can draw lessons which will avoid similar episodes in the future.

Traditionally the Senate has confirmed presidential nominees to high positions in the executive branch absent some character flaw, incompetence or extreme position that placed them outside the broad mainstream. Senators from both parties have recognized that presidential elections have consequences; and if a president is to be held accountable, he should be allowed substantial deference in selecting associates to help shape and implement policy.

No one claimed that any character flaw rendered Koh unfit; on the contrary, Koh has performed heroically in prior governmental positions and as a private advocate committed to help those less fortunate. Nor did anyone question the competence of this dean of the Yale Law School who has received 11 honorary degrees and countless awards attesting to his brilliance, leadership and courage in championing bedrock American ideals like human rights, democracy and rule of law.

Much of the opposition to Koh came from those, like Oliver North, Phyllis Schlafly, Ed Meese, Rick Santorum and Glenn Beck, who attempted to portray Koh as a radical, often because he believes that judges should sometimes consider foreign law in interpreting open-ended portions of our Constitution. Yet Koh's position has long historical roots in American jurisprudence and is shared by Justices John Paul Stevens, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer and former Justice Sandra Day O'Connor.

The effusive praise of Koh from conservative and moderate Republicans rebuts that distorted view and confirms that he belongs in the broad mainstream of American thought.

Theodore Olson, solicitor general in the George W. Bush administration, said, "I have the greatest respect for Harold Koh. He's a brilliant scholar and a man of great integrity."

Kenneth Starr called Koh "a truly great man of irreproachable integrity" who is "extraordinarily well qualified to serve with great distinction in the post of legal adviser." Starr added that Koh "embraces, deeply, a vision of the goodness of America, and the ideals of a nation, ruled, abidingly, by law."

Former Sen. John Danforth called Koh "a good and decent person and an outstanding legal scholar" who is "greatly admired by those who know him across the political spectrum."

The attacks on Koh, and the effort to delay his appointment, reflected tendencies which have too often afflicted the confirmation process. That process, as conducted in the blogs and in the Senate, exacts a huge price.

It prevents the government from performing effectively by denying a newly elected president a team to shape and implement policies. It unfairly hurts human beings who are making sacrifices to serve their country. In so doing, it makes public service less attractive to some able and honorable people. It sends a message that creative thought and bold action is risky for people interested in public service. After all, if someone as innovative and inspiring as Koh can be treated as he was, might discretion counsel clinging to the cautious and conventional rather than seeking new solutions to vexing problems as have many of our greatest leaders?

The treatment Koh received is symptomatic of a larger tendency in American public life to act as if the ends justify the means, to pull out all the stops to defeat those with whom one disagrees, to emphasize areas of disagreement rather than common ground, to rejoice in a political opponent's every misfortune. That is not a course that will foster national unity or address our nation's problems.

The fix will require a recommitment to civil discourse of the sort Danforth has practiced and championed. It will require citizens overlooking philosophic disagreements to defend the integrity and reputation of those unfairly assailed, as Olson and Starr did in this instance, even when the attacks come from those on their side of the political fence.

And it will take leadership by politicians willing to break with their party in favor of a nobler politics. Five Republicans -- Sens. Richard Lugar, Olympia Snowe, Susan Collins, George Voinovich and Mel Martinez -- voted to support Koh's nomination. They and three others (Lamar Alexander, Judd Gregg and Orrin Hatch) earlier voted for cloture, knowing that allowing a vote on the merits would produce Koh's confirmation. The circumstances and reasons of these five, and these three, were not all the same. The vote should have been unanimous, but under these circumstances these eight deserve praise for acting in the best traditions of the Senate and the best interests of our country.

Joel K. Goldstein, the Vincent C. Immel Professor of Law at Saint Louis University School of Law, writes about and teaches constitutional law.

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