The U.S. State Department's top lawyer today defended the Obama administration's nomination of Goodwin Liu for an appeals court post, questioning what he called a "disorienting" political environment.
Liu, whose nomination ran into a Republican roadblock, withdrew his name in late May for a slot on the U.S. Court of Appeals for the 9th Circuit.
Harold Koh, the State Department legal adviser for nearly two years, brought up Liu and Dawn Johnsen, Obama’s failed pick for the Justice Department’s Office of Legal Counsel, today in remarks at the American Constitution Society’s annual convention.
In a speech that lasted nearly 40 minutes, Koh touched on topics that also included his confirmation process and the role of government lawyers in situations where personal beliefs clash with policy.
“We live in a political environment where people like Dawn Johnsen and Goodwin Liu don’t get confirmed, when there is no one more qualified,” Koh said early in his speech at the Capital Hilton in downtown.
“Goodwin, in Washington you are controversial. In our world you are anything but,” said Koh, whose words led to a standing ovation among the hundreds of luncheon guests. “Goodwin, I would vote for you for anything, and you only have bright days ahead.”
Koh said that even if Liu never becomes a judge, “doesn’t every fan know it’s much more fun to play the game than to be the umpire? So keep playing. You have the right stuff.” Koh called Liu a “symbol” of the American Constitution Society, the left-leaning legal organization that is celebrating its 10th anniversary.
Koh, a former dean of Yale Law School, built his speech on what he called his guide posts for how a lawyer should live life.
“There is the real world. There is Washington. They are not the same thing,” Koh said, articulating the first guide post. “No matter how many times you come here, Washington is not the real world. Life here is like life nowhere else.”
Koh dedicated part of his speech to discussing the intersection of personal views and policy. As a matter of policy, Koh said, he opposes the death penalty, which he called wrong and counterproductive. But he said he does not think capital punishment is illegal under international law. “That day may come,” he said. “I hope it does come.”
Koh said he can defend the international lawfulness of policies that he would not personally advocate as a matter of human rights policy. “If I wasn’t prepared to make the defense, I shouldn’t have taken the job,” he said.
As a lawyer, Koh said, he defends the government’s right to choose legally available options. First, he said, remove the illegal option from the mix of choices. “Like torture,” Koh said. If an unlawful option comes up, “you should say, ‘No, it’s not legally available’ and not try to figure out a way to pretend that it is,” Koh said.
Koh’s big theme, which he directed at young lawyers: don’t be afraid to speak up and stick by what you say.
To illustrate the point, he described a moment in his confirmation process when he was meeting with a group of his handlers.
“One of them said, ‘You know, you might want to apologize for some of the things you wrote.’ I said to him, ‘Can we get one thing straight? I am not apologizing.’”
“I’ve lived the life I’ve wanted to live. I’ve said the things I’ve wanted to say," Koh said. "If you really want me to say I’m sorry, I’ll say, ‘I’m sorry that my life’s work has been misunderstood.’”
Koh said he understands the “instincts that might lead younger lawyers to clip their own wings. But this is a bad way of living and a bad way of planning your future.”