Forbid Them Not: The Tricksy Ambassador

Forbid Them Not: The Tricksy Ambassador January 4, 2019

Forbid Them Not, pp. 428-435

Finally—the Senate Judiciary hearing. Senator Marshall—the man who had arranged to have Jody testify at the hearing—focuses on whether and what President Rodman discussed with Senator Rose about the UN case.

“My first question is to return to the question you have been asked previously, regarding whether you and President Rodman had discussed any of the cases currently before the Supreme Court. At your announcement hearing, President Rodman said that there were no such discussions. Do you recall her saying that?”

What is an announcement hearing?

“Yes, Senator, I recall.”

“What she correct when she said it?”

“Yes, Senator, she was correct.”

“Did you have discussions about any of the cases at any time since President Rodman took office, in other words, even before Justice Campbell passed away?”

“No, Senator, I had no such discussions with the president about any pending cases at any time since the inauguration.”

This is odd, because it actually contradicts what President Rodman stated when she announced Senator Rose’s nomination:

“As you know, Senator Rose and I have been both strong backers of this treaty for almost two decades. We have stalked about this treaty many times and, yes, we talked about the litigation in an informal way before the sudden and sad death of Justice Campbell. But discussions about the political issues surrounding the treaty are quite different from the legal issues that must be addressed in the Supreme Court.”

Nothing really gets any clearer. Senator Marshall puts this question to Senator Rose over and over again, each time in a slightly different way, and she states repeatedly that she did not discuss the case with President Rodman. Indeed, she tells Senator Marshall that she did not ever discuss the legal issues of the case “with any employee of the White House.”

Next, several witnesses testify in favor of Senator Rose—the president of the American Bar Association “gave her the organization’s highest rating” and a professor at Harvard Law School “analyzed Rose’s legal writings over her career and pronounced her brilliant.” Then it’s Jody’s turn.

“Ambassador Easler, you were, until July, the U.S. ambassador to the United Nations in Geneva. Is that correct?”

“Yes, Senator Marshall.”

“And in that capacity, you were selected to serve as the first person from the United States to serve on the Committee on the Rights of the Child. Correct?”

“That is correct.”

“Can you please tell us the function of the Committee on the Rights of the Child?”

“It is a panel of ten experts, Senator. They are chosen by the UN.”

No they are not. 

According to the treaty:

…The members of the Committee shall be elected by States Parties from among their nationals and shall serve in their personal capacity…

The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals.

The elections shall be held at meetings of States Parties convened by the Secretary-General at United Nations Headquarters. At those meetings, for which two thirds of States Parties shall constitute a quorum…

First, each country selects and nominates one of its own nationals. Second, representatives from all of the countries that have signed the treaty convene and vote, selecting members from the committee from among the nominees (some time after Farris published his book, the number of committee members was increased from 10 to 18).

What does this actually look like? Curious, I did some googling and found a fact sheet published by a global children’s rights organization urging children’s rights advocates to become aware of and involved in the selection process:

Members of the Committee are nominated and elected by States parties to the Convention only

To become a Committee member, interested individuals have to be:

  1. Nominated by a State party to the Convention. Each State party has the right to nominate one person among its own nationals.
  2. Elected by the States parties to the Convention during the election held every two years (on even years) at the meeting of States parties to the Convention in June. To ensure some continuity in membership, only half the membership (nine members) is elected every two years.

How does this typically play out?

Geopolitical considerations may take precedence over official criteria for the selection of candidates

The election of Committee members, like any international election process, is a highly politicised process where inter-States and regional dynamics play a key role. For example, States seek support for their nominee from other States in exchange of reciprocal support related to other UN election processes.

In fact, experience has shown that the election of a nominee is often dependent on successful lobbying by nominating States parties and the trading of votes, with little regard for the actual expertise of the nominees.

So yes, there’s politics—and this fact sheet, remember, aims to increase awareness of and involvement in the selection process, so it’s going to play up areas that could be improved. Still, the point remains—in contrast to Jody’s claim, the UN does not chose the committee’s members. The states party to the treaty do. If anything, this section reveals Farris’ lack of knowledge of the very treaty he so adamantly despises.

Back to Jody:

“The purpose of the panel [i.e committee] is to enforce the treaty. In other countries, the nations take the position the the treaty creates only a moral authority. In the U.S., because of the Constitution’s Supremacy Clause, the committee is well aware that the treaty creates a legal authority which binds the United State sand the individual states in our own courts.”

Color me skeptical. As I noted in an earlier post, current American legal opinion is that treaties like this one are not in fact self-executing. Given that American jurisprudence holds that the Supremacy Clause does not make treaties of this sort automatically legally binding in the way Jody describes, the idea that the U.N. Committee on the Rights of the Child not only knows about the Supremacy Clause but also believes it means something American lawyers say it doesn’t is ludicrous.

But! Enough stalling!

“Ambassador Easler, did you ever have occasion to discuss the case that was filed by the National Education Association and the Children’s Defense Fund while you served on the Committee for the Rights of the Child in Geneva?”

“Yes, Senator Marshall. On behalf of the White House, I presented several potential cases to the committee, for its strategic decision as to how to begin implementing the treaty.”

This is not how this works. The committee does not make a “strategic decision as to how to begin implementing the treaty.” That simply does not happen. Instead, once a country ratifies the treaty, it has two years to submit an initial report on the implementation of the treaty to the committee. It must then submit a new report every five years. The committee reviews these reports and responds respond by asking for further information on certain points. Finally, the committee gives the country a list of (non legally binding) recommendations. That’s literally it.

If the U.S. had signed the treaty, the country would be within that two-year window, (internally) reviewing its policies vis a vis children, comparing them with the goals laid out in the treaty, and working on compiling its initial report. The committee wouldn’t be doing anything at all vis a vis the U.S. It’s first involvement would be in asking for additional information after receiving the U.S.’s initial report, and then in creating a set of (non legally binding) recommendations for the U.S.

Farris does not know how this treaty works, at all. 

Anyway, Jody tells Senator Marshall that while she recommended a “less controversial case” to the committee as the first step for implementing the treaty, the committee “obviously decided to pursue the more contentious case in Virginia.”

“How did the NEA and the Children’s Defense Fund come to be the plaintiffs?”

“I asked them to do it.”

“Did you get clearance from anyone in the administration before you did that?”

“Yes, I was told by the president’s chief of staff that the president concurred in the decision.”

“Were you asked to clear this course of action with anyone else before it was filed?”

“Yes, Senator, the chief of staff to ld me to talk to the key supporters of the UN Convention in the Senate.”

“Did you do that?”

“Yes,”

“How many senators did you talk to?”

“Seven.”

“How many are present in this room?”

“Three.”

“Who are they?”

“Senator Selden, Senator Bagwell, and Senator Rose.”

A collective gasp followed by a  murmur went through the room.

Senator Marshall wants to know what Senator Rose told Jody.

“That she fully supported the decision to have the outside groups file the case. She was doubtful that we could win all of the issues in the case but expressed her personal opinion that someday we would win, once President Rodman had a chance to push through enough appointments to the High Court.”

Chaos, pandemonium, media uproar, and more chaos. After “four days of public outcry, led by many of the nation’s pastors who had finally realized that their basic freedoms were truly at stake, the rose nomination was withdrawn at the request of the White House.” Exit Senator Rose.

Is an ambassador an employee of the White House? If not, Senator Rose wasn’t technically lying. (Not that that changes the fact that she was being dishonest.) Doubly weird is the fact that Farris emphasized earlier that President Rodman spent twenty minutes grilling Senator Rose on how she would adjudicate the UN case. No one ever finds that out. It just disappears into the ether. Instead, what becomes important (apparently) is that Senator Rose said she didn’t talk to any White House employee about the case, when in fact she talked to Ambassador Easler (Jody)  about it.

Let’s be clear—this is a situation where Senator Rose should have stated up front that she was too close to the U.N. case and that if she were confirmed to the court, she would recuse herself from it. Even short of being this upfront, Senator Rose should have responded to the spirit of questions about her knowledge of the case, acknowledging her involvement.

This all said, I very much suspect that there are justices on the Supreme Court right now who, before their appointments, mused to various people and constituencies that conservatives will only be able to ban abortion after they get enough appointments to the Supreme Court to overturn Roe v. Wade. (In fact, I bet there are justices on the Supreme Court who still say that now, as Supreme Court justices). It is very unlikely that these same justices would see any reason to recuse themselves from cases involving abortion. So, yes, it’s gross and it’s politics—but I don’t fault Senator Rose that statement.

I do fault her not being upfront about her knowledge of the case. By not doing so—by letting President Rodman nominate her knowing that she was close to this case, and that she would have to either recuse herself or lie about her knowledge of it—she torpedoed her own cause. Not a cool move.

All of this delayed the nomination process, and the case will now be heard by eight, rather than nine, justices. Score one for Cooper. If his opponents weren’t so horribly incompetent, this might have been a more interesting book.

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