Hey, Hey, Ho, Ho; Why The Fuss About Harold Koh?

I think my wife has a thing for Harold Koh. She’s not alone. One of our neighbors also glows at the mere mention of the name. They were talking about Koh the other day, and I had to leave the room. What’s he got that makes groupies of women in late middle age?

Koh was just confirmed by the Senate Judiciary Committee to serve as the top legal advisor to the State Department. Confirmation is likely but not a sure thing. Up from the swamps of jingoism rises gaseous noise that Koh is too much of a "transnationalist" to serve the national interest. Oh, for the good old days of William Jennings Bryan at State. Now there was a man who knew our place in the world and the cosmos.

I was prepared to overlook this glow about Koh among those near and dear to me. I understand its source. Koh’s kids went to school with our kids. He is a good dad, and, therefore, by extension, a good human being. He is reportedly considerate in little things: recalling a name, making time for the exchange of the small courtesies that make life sweet.

But then I started to see Koh’s name on the shortlist of those in the running for a seat on the United States Supreme Court.

Koh does glow, all right. But is he just another "cookie-cutter" candidate?

A friend turned me on to Chris Matthews the other day. I’d only seen him once or twice before. He struck me as all bluster, another raging nitwit surfing in the wake of Rush Limbaugh. You know the type, fuel up on testosterone in the morning and then spend the day pointing and shooting at every red herring swimming by. But Matthews is no right-wing nutcase. No, he’s a liberal nutcase. Okay, okay. Minds across the ideological spectrum come in all forms. Some are supple and graceful; some come in the Matthews-Limbaugh form.

Matthews did coin a nice expression amid his screeching. He referred to a potential nominee for justice as a cookie-cutter candidate, no doubt referring to her race and ethnicity. Koh is exotic by the standards of mainstream. Isn’t it time for an Asian-American justice?

But what of the real cookie-cutter that molds any candidate for justice, regardless or race, ethnicity or gender? If you want to rise to the top of the law’s pyramid, it seems as though you must climb the right steps: Ivy undergraduate degree; law school at Harvard or Yale; perhaps a finishing stint at Oxford or Cambridge; clerkship to a federal judge, preferably a Supreme Court justice; and then time spent in the silver-lined trenches of academia, the government or a big firm. Only once a candidate has been homogenized on this conveyor belt and certified as grade A white shoe does a name emerge as fit to sit on the nation’s high court. Koh has been so certified; why, he’s even served as Dean of the Yale Law School.

What a scam.

I’ve only met a few of these masters of law’s universe. Yet I spend a part of almost every working day in a courtroom representing the folks who serve as the "fact patterns" for the law’s elite. I’ve never met the likes of Koh in the well of a court. For the life of me, I cannot see why a life spend atop the law’s pyramid makes one fit, or even capable, of seeing what goes on in the shadows most folks live in day by day.

I favor President Obama’s call for a pragmatic jurist on the court. The law’s ideologues are tedious boors; we’ve long since buried Robert Bork. The specter of revenging his death as a potential justice is chilling. And empathy is a good thing, too. But I don’t want fellow feeling laced with paternalism.

Koh’s parents may well have come here to flee persecution. But once they arrived, they settled into comfortable lives as academics. Koh grew in a grove far more sheltered than anything most of us can imagine.

My most vivid memory of Koh is not a good one. I have twice written to him requesting guidance as a practitioner. Where can I learn more about international law, I asked? Both missives went unanswered. I live hidden in the law’s shadows; so hidden that my requests for assistance are mere static. Like most Americans, I was not assembled at the right status factory. I just can’t glow about a Koh most of us will never know.

Reprinted courtesy of the Connecticut Law Tribune.

Comments: (6)

  • "If you want to rise to the top of the law’s pyram...
    "If you want to rise to the top of the law’s pyramid, it seems as though you must climb the right steps: Ivy undergraduate degree; law school at Harvard or Yale; perhaps a finishing stint at Oxford or Cambridge; clerkship to a federal judge, preferably a Supreme Court justice; and then time spent in the silver-lined trenches of academia, the government or a big firm."
    Not one of them ever got a high-five from a black man facing years in prison, public humiliation, his years of outstanding public service in jeopardy and huge legal costs. They will never know wives or children of such men man who are forever and most deeply grateful for them. They will never drift off at the end of a long, hard fought and demanding day to join in Churchill's refrain, "I went to bed and slept the sleep of the saved and the thankful." War does that for the victorious. Patton was more eager to engage the enemy than his own men. “A lot of people thought Lincoln was a country bumpkin,” said Patsy Berry, an authority on the 16th president for the Edgar County Historical Society, “and he wasn’t. He was a very savvy and crafty lawyer.” Clarence Darrow attended law school for only one year. Allegheny College. “He [was] perhaps the most effective courtroom opponent of cant, bigotry, and special privilege that our country has produced.” “He was notable as a defender of the underdog and civil rights. For the next 9 years he was a typical small-town lawyer...” How many Supreme Court Justices personally saved a man from the hell of prison?
    Of course, there was that fellow who never attended college, never wrote a book or famous paper, who wasn't endowed with physical beauty, never married, who never made much money and never had a big job. He had no influential relatives. He grew up in an obscure no man's land without electricity, before the advent of mass media and modern transportation and the printing press. He said the most bazaar, lunatic fringe types of things, too. His handpicked band of birdbrains, the original gang that couldn’t shoot straight, fought among themselves for their right to a future pecking order well pleasing in their sight, while he washed their feet and then suffered the agony of the disgrace where all he had worked and toiled for was rejected by his most ardent supporter, his own dad. All alone with nothing but nakedness, shame, filth and dirt, bloody flesh, a mock crown, unable to comfort his own brave and broken mom. The hot, hurling jeers of those who had hailed him King just hours before. Tried in one of the most corrupt legal proceedings in history, butchered, crucified and forgotten. Almost. Almost, ‘til Sunday came. Now, history, time, and our calendars mark his arrival. More books have been authored about him, more songs written and sung, more charities established, more schools and hospitals built in his honor than any other human being.
    The top is the bottom and the bottom becomes the top.
    Posted on May 14, 2009 at 6:57 pm by Anonymous
  • Q: How are judges assigned to cases?
    Judge assign...
    Q: How are judges assigned to cases?
    Judge assignment methods vary. The basic considerations in making assignments are to assure equitable distribution of caseload and avoid judge shopping. By statute, the chief judge of each district court has the responsibility to enforce the court's rules and orders on case assignments. Each court has a written plan or system for assigning cases. The majority of courts use some variation of a random drawing. One simple method is to rotate the names of available judges. At times judges having special expertise can be assigned cases by type, such as complex criminal cases, asbestos-related cases, or prisoner cases. The benefit of this system is that it takes advantage of the expertise developed by judges in certain areas. Sometimes cases may be assigned based on geographical considerations. For example, in a large geographical area it may be best to assign a case to a judge located at the site where the case was filed. Courts also have a system to check if there is any conflict that would make it improper for a judge to preside over a particular case.
    I wish I had a better grasp of the world of Law and Courts. In this instance, a court's assignment of a particular judge did not meet the standards set forth above. The selection honored geographic conditions, but the judge serving that region refused to cooperate and held court elsewhere. Our local rules indicate that making such a change is forbidden. Only the chief judge may authorize making such a change. When the judge and the chief judge will not address "why" the policy was not followed, where do you turn? Who else would know except those two and if they are silent, tough. "What difference does it make? Who cares? So what? What's the big deal? Let it go, man, those poor bastards are busy with serious criminal and civil cases. They don't have time to answer crap like that." I suppose they're right. But, combined, they will be paid more in one year than I will make in my lifetime. And once upon a time, it was my money. For close to one half million dollars (considering dividends, interest on CDs, bonds, real estate investments, rental houses at the shore, health and life insurance,...) it is not unreasonable to expect a response, is it?
    Posted on May 15, 2009 at 8:18 pm by Anonymous
  • Norm, would it be all right if I posted some histo...
    Norm, would it be all right if I posted some history? I have refrained from making public the events which I find so troubling. If you think it might be unwise to do so now, please just delete this. PART I
    As someone unfamiliar with legal proceedings, I was expecting to be heard by a neutral, but interested and impartial, judge. I actually believed if and when I finally got to appear before a judge that he would be eager to help me to uncover how the professionals who conducted my drug test committed over 100 errors and why the designated government agencies failed to enforce their own published testing regulations. Although I had been tested a number of times, the inside world of drug testing was foreign to me. I had never had a problem before. But, on this one occasion, when I was fired for testing positive and I tried to learn what happened, I discovered a world of deceit, cover-up, indifference, greed, a lack of accountability and conflicts of interest. Depending on the type of drug test, government regulations may dictate precise standards for the entire process. Mine was such a test. A test mandated under the authority of The Federal Motor Carrier Safety Administration, which publishes a book annually full of excruciatingly detailed criteria all participants must follow, is constitutional, when these regulations are followed. The Supreme Court ruled, for example, if a person were selected for testing outside of a scientifically verifiable random method, i.e. if someone was handpicked, then that individual's constitutional right to be free of an unreasonable search would be violated. At least that is my understanding. The regulations are quite clear about one's right to request and to receive all pertinent documentation regarding his/her test. Each service provider must release a copy of all such documents within 10 days of receiving a written request from the donor. Our government set up the Office of Drug and Alcohol Policy and Compliance, ODAPC, to serve directly under the Office of the Secretary of Transportation to guide and to enforce federally mandated testing. When I was fired for testing positive, I tried to find out what happened. I called my MRO, the Medical Review Officer, an M.D., to ask him. I did not (and do not) take illegal drugs. (I don't drink, smoke, drug, ever, at all.) Well, this boob didn't have a single shred of information about my test or me. He said he and his staff searched their databases entirely, but found zero. "But, you failed me. How did that happen?" He had no idea. None. I asked my former employer who said they'd get back to me. When they didn't, I gave the MRO their number. The next day he called me proclaiming all was well. He had straightened everything out. He informed them that a mistake had been made and that I had not failed the test after all. "How did you decide to overturn the test result without any information about my test or me?" No answer. That's peculiar, I thought. According to the regs, he must conduct a medical interview first, before making a decision to overturn. He never asked me anything. For all he knew, I was just as guilty of failing that test as he originally indicated. That is why the FMCSA, the Department of Transportation and the ODAPC demand that he perform this medical interview before allowing someone back on the road. It is meant to protect the public and the donor. Makes sense. But, how could he be completely ignorant about me, contact my former employer, and decide my test was not positive? Did they tell him something that justified overturning my test. If they did, then why did they accuse and fire me in the first place? I formally requested all documentation relevant to my testing. With a 10-day time limit to cooperate, soon I would be able to figure out what had gone wrong. But, they failed to cooperate. So, I contacted the ODAPC and told them what I just told you. I also requested in writing the MRO's and the Lab's information, every iota of it. I received three forms, which were not copies of the original Federal Chain of Custody and Control Form used and they were inconsistent. Eventually, an ODAPC senior policy adviser did call the MRO and the employer and I got a few more documents. The MRO refused to ask the Lab to forward their data. (The donor must ask the MRO to request that the Lab send their documentation.) The forms he sent did not match the employer’s copies. I explained this to the ODAPC, but their position was that they had done everything they could, and unless I showed them more proof and not just more claims, they were done. Besides, they got the MRO to overturn the test, didn't they? What more did I want? (I learned that this adviser was the President of a drug testing company and solicited government agencies for contracts, while he was a full time employee for the ODAPC.) And, he knew my MRO. I wrote the OIG and others to seek their help. After many months, they declared they agreed with the ODAPC. The test was overturned after they got involved. Period. I couldn't convince them to enforce their own regulations.
    From the information I was able to acquire, it became clear to me that I was not selected randomly. My test was a ruse. I was not tested. I gave a urine sample. That's it. There was no proof of any analysis, etc. So, I sought legal help. I was hoping discovery would yield a more complete picture of what actually happened and my lawyer said he was conducting interrogatories. He was not being truthful. He did not ask for a single bit of discoverable information. He had 30 days to complete the interrogatories they sent to him and as the deadline approached, he demanded I accept their offer. When I asked about our discovery efforts, he said he was serving their interrogatories. This wasn't true. He didn't do anything. When I refused their offer, he told the judge I failed to cooperate with him and I was unreasonable. He produced a document which indicated I wanted to know if the other side would pay me x. He got them to offer that sum and then he told the judge that I refused to accept an offer I had made. He said I wanted to use the court for improper purposes. He forged that document. I did not say or imply or write what it said. During our first hearing the judge told me if I didn’t cooperate with my opponents’ request to find out everything there was to know about me, regarding this lawsuit, he would incarcerate me. This took place while the other side lied about me and my lawyer falsely accused me. I was dumbfounded. They had not followed federally mandated rules to release the documents I sought for years. He never warned or instructed them to cooperate. Forging documents, lying to federal inspectors, federal inspectors lying to higher ups, informing government authorities I failed a drug test when they knew I didn't and for illegal purposes, etc. were pretty serious issues and here I was threatened with incarceration!
    I told the judge he was being misinformed; that statements made to him were not truthful. I told him my file had been contaminated with these lies. He said these matters were not before the court.
    Posted on May 17, 2009 at 4:06 pm by Anonymous
  • Oh come on now. You are just jealous, lets not get...
    Oh come on now. You are just jealous, lets not get too deep about it. I'm glad to know I'm not the only middle aged woman who gets all silly over Harold Koh. He's hot.
    Posted on May 18, 2009 at 8:28 am by Nollequeen
  • Anonymous states: "Not one of them ever got a high...
    Anonymous states: "Not one of them ever got a high-five from a black man facing years in prison, public humiliation, his years of outstanding public service in jeopardy and huge legal costs. They will never know wives or children of such men man who are forever and most deeply grateful for them."
    How about high-fiving an HIV-positive Haitian refugree who was locked up for more than a year at Guantanamo Bay because the government took the position that anyone who was HIV-positive could not enter the US? Harold Koh led the team that obtained the freedom of those refugees, who were interdicted by the Coast Guard at sea but, unable to go back to Haiti because of political persecution, were locked up at Guantanamo without lawyers. Haroled went to Guantanamo, fought with the government over the conditions there, and celebrated after he finally secured their freedom -- including plenty of high-fiving.
    As for Norm, for someone who purportedly knows Harold Koh, your comments show a surprising lack of knowledge about him. Yes, he went to the Ivy League and is an academic, but he is not nearly so divorced from the world as you think. Perhaps the reason he has those "cookie-cutter" accomplishments in both academia and government is because he is a brilliant thinker who has also managed to apply that thinking to the real world in the State Department. It truly is astonishing that having a great mind and reaching the pinaccle of one's field would actually be deemed a bad thing for the Supreme Court.
    Frankly, your comments mainly seem like a petty response to having your emails ignored.
    Posted on May 19, 2009 at 5:19 am by Anonymous
  • I am glad that Mr. Koh was instrumental in helping...
    I am glad that Mr. Koh was instrumental in helping those poor people to get released. That is great to hear and a great thing for him to have done. If Norm had known about this before, I am sure he would have been thrilled. Here is the bottom line, people who were incarcerated were freed because someone went to bat for them. Thanks Mr. Koh and congradulations and welcome to all those freed to the greatest country in the world. Help make us even better, won't you?
    We take America for granted, too often, at least I do.
    Posted on May 19, 2009 at 3:29 pm by Anonymous

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