Koh considered likely candidate for Court

This is the second part of a two-part profile.

By Andrew Mangino

Staff reporter

The first-ever Asian-American Supreme Court justice — still several years away from his nomination — may be sitting today in the dean’s office of Yale Law School.

At Washington, D.C., cocktail hours, on the pages of the New York Times, in the minds of his students and colleagues, Law School Dean Harold Hongju Koh is perhaps more well-positioned than most other legal-minded liberals to one day sit on the highest court in the land. And if he is nominated come a Democratic victory in 2008, as he put it himself, “you don’t say no.”

Koh, after all, is no stranger to the Beltway — one of his colleagues described him as much more of a “political being” than past deans — and as leader of Yale Law School, he has hardly been able to restrain himself from engaging in national debate. It is part of the job, he says.

As a professor in the early 1990s, after the U.S. government sent about 300 immigrants to Guantanamo Bay and told them they had no legal right to challenge their detention, Koh took up their case. Soon, he will be a movie star for it.

Hollywood has decided to make a film version of “Storming the Court,” a book by Brandt Goldstein LAW ’92 that details how a “band of Yale Law students sued the president — and won” under Koh’s leadership.

In the process, Koh’s team did not fight only one president. They battled two: George H. W. Bush ’40, a Republican, and Bill Clinton LAW ’73, a Democrat.

Koh says this is why he was shocked when Madeleine Albright called to offer him a job in 1998. He reminded her that he had sued the Clinton Administration, but she said, “Don’t worry, we are not looking for a yes-man.”

As Assistant Secretary of State for Democracy, Human Rights and Labor, Koh worked particularly closely on North Korean policy, but later expressed some concern that in government, “people with ideas have no influence, and people with influence have no ideas,” according to a 2003 interview. Always eager to examine the intersection of personality and popular culture with politics and law, Koh was able to provide one of the few glimpses into the life of Kim Jong-Il known in the United States.

“He drinks hard scotch. He loves American videos. He talked about his three computers on which he surfed the Internet,” Koh told “60 Minutes” in an interview after a trip. “Everything that he deprives to his people, access to the outside, are things that he himself personally craves.”

Strobe Talbott, deputy secretary of state under Clinton, says Koh “understood intuitively the workings of the U.S. government and diplomacy, and was nothing less than brilliantly effective in the way that he did a very, very difficult job” of ensuring that the issues of “democracy promotion and human rights didn’t get swept aside or obscured in some way.”

Koh now serves on the board of the Brookings Institution, where Talbott is president. Talbott says the dean has helped to refocus the board on international law and foreign policy, while helping to underscore the “growing importance of the courts, the law and the judicial system in shaping the public” domestically.

Koh says he learned some lessons at the State Department that would later prove useful in the different environment of the Law School. One’s staff, he says, should view their leader as someone who merely fills the responsibilities of the position and does not impose too much of his or her own personality. Also, he says, the experience helped him grasp the all-important lesson, “if it ain’t broke, don’t fix it,” but that one must “change to stay the same.”

But it is that emphasis on change that Koh takes particularly to heart in determining his policy positions and which issues to weigh in on as dean. He has been outspoken in championing transgender and gay rights and has publicly fought the Bush Administration nearly half a dozen times.

Last year, for example, he took the train to Washington, D.C. in the middle of an otherwise action-packed week at Yale Law School to testify that the National Security Agena’s wiretapping, unsanctioned by the courts, was “blatantly” unconstitutional.

The question, though, is whether a nominee to the court so gifted at rocking both sides of the boat would pass muster in a climate in which justices are, in essence, subject to litmus tests in order to ensure that they will rule on the side of the administration that appointed them.

At cocktail parties featuring elite Washington insiders, Koh is not seen as an underdog. Former Solicitor General Drew S. Days says Koh’s name has been tossed around at such gatherings as a likely future justice, regardless of his outspoken views. And Talbott, likely to have influence in any future Democratic administration, says it’s all but a done deal that Koh will one day be appointed to a higher office.

“I have no doubt that he will serve the nation and, indeed, the world in other capacities … as a public servant,” Talbott says.

Specifically, insiders say that Sen. Hillary Clinton LAW ’73 has been eyeing Koh for as long as she has been eyeing the White House. And given his past experience in the her husband’s administration — and her ties to Yale Law School — Koh seems to be a more than obvious choice.

Although several professors say they think Koh would be a positive transformational force on the court, other commentators have said he would urge the Court to overstep its proper role by relying too heavily on international law or favoring arguments rooted in policy rather than the letter of the law.

“He’s got drive, intellectual ability, personal charm, and he has political capabilities that lots of faculty members don’t have,” Law School professor Lea Brilmayer says.

But in a December 2006 controversy, David Lat, a blogger, claimed to unearth evidence that Koh had strong-armed a committee into awarding the school’s 2006 Merit Award to Linda Greenhouse, the New York Times Supreme Court reporter and the recipient of a master’s degree from the Law School, over Justice Samuel Alito LAW ’75. Koh and Greenhouse have worked together in the past, but Lat suggested that Greenhouse would also be a helpful ally for Koh if he were ever named to the Supreme Court since her words carry significant power to frame the public elements of Court debates.

Koh was angered by the story — it included a fictionalized “account” of deliberations surrounding the award — but he stopped short of denying it. Before Koh awarded her the prize, Greenhouse said in an e-mail that Koh would make a “fabulous” Supreme Court justice.

Some blogs on Wednesday, entertaining the possibility of a Koh nomination, urged supporters to exercise caution.

“Koh’s appointment to the [Supreme Court] would be an unmitigated disaster,” wrote UCLA law professor Stephen Bainbridge. “There can be no doubt but that Koh would be a liberal activist of a stripe we haven’t seen since Brennan and Marshall. The personal policy preferences of elite left-liberal salons would rule, rather than the rule of law. Conservatives need to get ready to turn Koh into a verb synonymous with Bork.”

Koh still has to make it to the hearings before he can become an entry in the historical dictionary, and some of his ardent supporters express concern that he would not survive the scrutiny modern nominees face. Unlike other current justices, he is not an appeals court judge. He also has an extensive litigation record, including condemnations of executive power, that may scare off moderate or conservative presidents and legislators.

But if nominated — at any point in time — Koh suggests he would accept, as nearly anyone would.

Still, if he never had the opportunity to join the high court or if his career ended today, Koh says he would be content: He says he has experienced all he dreamed of in this lifetime and relishes being a father of two teenagers. He has a command of culture and, most recently, of alternative rock music.

Koh still can hardly get over the fact that he is the dean of Yale Law School, filling the shoes of the same man whom he once thought of as a “magician,” or even a god.

“The idea that one generation later I would be in that position is really sort of amazing,” Koh says. “Unthinkable.”

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