Earlier today Harold Koh overcame an effective filibuster of his nomination to be the State Department’s top legal advisor. Koh required 60 votes to overcome cloture. He received 65 votes with 31 senators against and 3 not voting.
Groups affiliated with treaty-slayer Frank Gaffney sought to undermine senatorial support of Koh by portraying him as outside the mainstream. Well, that obviously did not work. but it did turn the Koh vote into a proxy for future Senate battles over international legal issues like the Comprehensive Test Ban Treaty and the Convention on the Law of the Sea.
Looking at the roll call, I think it’s fair to say that this vote shows there is a core of about 30 “sovereigntists” who will likely never vote for senate ratification of these treaties. Of the three not voting, it’s safe to say that two (Robert Byrd and Ted Kennedy) are supportive of the CTBT and UNCLOS and one (Thad Cochran) is probably not.
Unlike the Koh nomination, these treaties require 2/3rds of senators present to become ratified. Under normal circumstances this means 67 votes. Byrd and Kennedy, however, are infirmed. This means that if votes on UNCLOS and CTBT were to come up in the near future, 66 senators would be required for ratification–one more than what Koh was able to secure. To be sure, it’s not inconceivable that some of the Koh’s “nays” support one of these treaties. (Alaska’s Lisa Murkowski, for example, is a strong supporter of UNCLOS). But the Koh vote does show that these votes will likely be very, very close.