Republicans need a political victory. They couldn't stop President Obama's recovery package, they couldn't kill the health care bill, and too many are wandering close to agreement on financial reform. But the almighty Supreme Court has been the conservative goal for decades -- and the next justice is their next chance for a big win before the midterms. Any Democrat who's willing to believe that Republicans might make this confirmation smooth if Obama nominates a moderate "non-activist" should think twice.
This nomination to replace Justice Stevens -- a staunch liberal on the court for 35 years -- can be more important than health care, the recovery bill and financial reform combined. That's why President Obama shouldn't just nominate someone who Republicans deem acceptable -- he should nominate someone that progressives would be proud to fight for.
That's why we need Harold Koh.
The son of first-generation immigrants from South Korea, Koh would be the first Asian-American nominated to the Supreme Court -- and his credentials speak for themselves. The former dean of Yale Law School and a renowned expert in international law, he served as Assistant Secretary of State for Democracy, Human Rights & Labor under President Clinton and is currently Legal Adviser to the State Department. In an increasingly global era where knowledge of international law will be crucial on the Court, Koh is the strongest candidate from this field and would also be the first Justice to hold such expertise. Beyond his roles at the State Department, Koh also worked in the Office of Legal Counsel at the Justice Department under President Reagan.
Many have ruled out Koh of consideration because of his testy Senate confirmation last year to the State Department -- but that's exactly why he's most suited for this upcoming fight. Despite complaints from those on the far right who saw Koh's potential and sought to curb his aspirations, Koh's nomination was brought to a full vote and passed 62-35. Sen. Richard Lugar (R-IN) went on the record saying, "after reading his answers to dozens of questions, attending his hearing in its entirety, meeting with him privately, and reviewing his writings, I believe that Dean Koh is unquestionably qualified." Conservative Supreme Court watchdogs knew then that such a confirmation then would make it difficult for those yea votes to flip to nays should Koh appear as a nominee for the Court. Given that Republicans will plan to obstruct any White House nominee, no matter how moderate, the Obama administration should force a vote on a strong candidate who crossed the 60-vote threshold just a year ago.
Having just emerged from the stifling days of the health care debate, it would be understandable for the administration to seek a smoother ride on this confirmation process. But it won't happen -- especially for Justice Stevens's seat. The GOP needs a win too badly. The Court is its one trump card on a host of issues, an institution that conservatives have strategized for and invested in for too long. The question isn't whether a nominee will sail through confirmation -- it's how willing the left will be to fight for that nominee. For Democrats to successfully nominate anyone to the Court, the nominee must be someone who can arouse equal passion and effort from the left -- someone with a compelling narrative, an impeccable record, and a clear vision for the Court.
As GWU Law Professor Jonathan Turley said, nominating "Harold Koh would be equivalent to putting Louis Brandeis back on the court."
Now that's a nominee worth fighting for.
Frank Chi is a strategist specializing in political communications, online video and brand identity. He is a partner at the firm Chi/Donahoe + Cole/Duffey, based out of Washington, DC.
All opinions expressed here are his own.