The battle began in late March, when Fox News firestarter Glenn Beck said Harold Koh, Obama's nominee to be the State Department's top lawyer, supported Muslim Shari'a Law. "Shari'a law over our Constitution!" Beck said in amazement. When that unlikely charge was debunked, Beck switched tacks and asserted that Koh, the outgoing dean of the Yale Law School and a former official under Presidents Reagan and Clinton, wanted to subjugate the U.S. Constitution to foreign law.
All of which would be fairly standard ratings-chasing melodrama, except that prominent members of the GOP, like Karl Rove and former U.N. ambassador John Bolton, began signing on to versions of Beck's critique. At that point conservative heavy hitters, including former Solicitor General Theodore Olson and Clinton tormenter Ken Starr, spoke up in favor of Koh. The dispute soon spread to the blogosphere, and Republicans across the country took sides, calling one another "fruitcakes" and "windbags." (Read "Glenn Beck: The Fears of a Clown.")
With a committee vote on Koh's controversial nomination coming Tuesday, both camps are lobbying Senators in what has become a proxy fight for the Republican Party's approach to life in political exile. On one side are Koh's opponents, who want to harness Beck's populist appeal to stay on the offensive for a variety of causes. On the other are Koh's supporters, who want to retrench around sober messages of lower taxes, smaller government and American supremacy, and wait for public opinion to swing back in their favor. "Koh is just a surrogate" for that fight, says Norm Ornstein of the American Enterprise Institute.
The traditionalists defend Koh's character. Former Senator John Danforth wrote the Senate Foreign Relations Committee that he was "puzzled and distressed that various media personalities and interest groups have tried to tarnish" Koh, whom he called "well within the mainstream of American legal thinkers." Olson called Koh "a brilliant scholar and a man of great integrity," and Starr said he "embraces, deeply, a vision of the goodness of America."
The activists who have emerged to draw on Beck's following have a variety of agendas. One group opposes most U.S. treaty involvement. Koh wants to put U.S. courts, the President and Congress under "a system of rulers who are these élite of transnational lawyers who are completely unaccountable to American citizens," says Ed Whelan of the Ethics and Public Policy Center, who has appeared on Beck's program.
Another group fears Koh may get the nod for the Supreme Court at some point in the Obama presidency and wants to bloody him now in preparation for that fight. "We have been watching and studying up on Koh for a long time," says one GOP judiciary committee staffer. "We didn't anticipate that he'd be named for legal adviser; now that he has, we've encouraged others to focus on his radical views even more." (Read "Fox News Continues Reign with Big Three.")
His defenders say there's nothing radical about him. Koh supports voluntary U.S. participation in bodies like the International Criminal Court and has argued that international human-rights standards should influence U.S. law. His conservative supporters argue he also believes in strengthening Congress's role in treaty approval and in greater congressional say over foreign and national security policy. They say it's fine to attack a nominee for the Supreme Court, but when it comes to the Executive Branch, true conservatives give the President his pick of legal advisers. "Especially," says Starr, "in the quintessentially presidential duty of fashioning and carrying out the nation's foreign policy."
How the battle will play out on Capitol Hill is still uncertain. The ranking Republican on the Foreign Relations committee, Indiana's Richard Lugar, is as traditional a conservative as they come, and though he hasn't decided, says an aide, "He always has an inclination in favor of an Administration's pick." Younger members of the committee are on the fence. Bob Corker of Tennessee has been sober in the face of outrage over the International Monetary Fund's use of currency reserves to stabilize the global financial system, a favorite Beck bugaboo. Johnny Isakson of Georgia has an unperturbably conservative view of the Executive Branch's authorities. Some may split the difference by grilling Koh, then voting for him on the principle that the President should get his pick.
But the larger question for the GOP is whether in this and other matters it will risk a Faustian bargain with Beck, whose apocalyptic take on U.S. politics generates instant support from an angry, vocal minority but is unsettling to the mainstream. Embracing the populist wing of the party worked in the wake of 9/11, but contributed to the electoral disasters of 2006 and 2008. It may take more time for centrist Americans to sour on big government and higher spending than the GOP's activist right wing would like, but true conservatives are patient.