"Elections have consequences." So insisted George W. Bush after the 2004 presidential election. And indeed they do. The 2008 election is no different, because now President Barack Obama has his second opportunity to fill a vacancy on the U.S. Supreme Court. Although there is plenty of push-and-pull on both sides, with some pushing the President to nominate a "real liberal" (read: Judge Diane Wood of the Seventh Circuit), and others cautioning him to select a more moderate option (read: Judge Merrick Garland of the D.C. Circuit), the President should instead look beyond the appellate courts to nominate someone with real experience outside the judiciary.
Three of the best Supreme Court Justices of the 20th century were great, in part, because they brought non-judicial experiences and perspectives to the Court.
Hugo Black, widely considered one of the most influential jurists ever, began his career as a trial lawyer in Alabama, where he witnessed horrific racial discrimination and prosecuted cases against white officers abusing black suspects. Black would later serve as a U.S. Senator for ten years, where he advanced legislation that would eventually become the Fair Labor Standards Act. Although he never held a judicial position before, President Roosevelt nominated Black to fill a vacancy on the Supreme Court in 1937. Drawing on his experience as a trial lawyer in Jim Crow's Alabama, he would join the Court's unanimous decision in Brown v. Board of Education, outlawing segregation, and write for the Court in Gomillion v. Lightfoot, requiring the South to grant African Americans the right to vote. His Senate experience proved invaluable during a time when it seemed that the Court would strike down President Roosevelt's New Deal.
People sometimes forget that Earl Warren, who famously led the Warren Court for sixteen years as its Chief Justice, never donned a judicial robe until President Eisenhower appointed him in 1953. For twenty-eight years, Warren served as the Alameda County District Attorney, California's Attorney General, and finally as California's Governor. He would later write how his experience as a prosecutor gave him the perspective he needed to decide cases like Miranda v. Arizona. As Governor he signed an executive order repealing school segregation in classrooms - a prelude to Brown v. Board of Education. But it was his experience as an elected official that made him particularly valuable as Chief Justice, especially when the Court decided critical voting rights cases such as Baker v. Carr (which enshrined the "one-man, one-vote" doctrine). The skills that Governor Warren honed from spending a life in politics ensured that Chief Justice Warren would be the Court's most effective coalition builder.
And who could forget William O. Douglas, the longest serving justice in Supreme Court history, and the man whom Justice Stevens replaced thirty-five years ago. Justice Douglas made his name, not as a judge, but as a professor at Yale Law School. Later, while serving as Chairman of the Securities and Exchange Commission, President Roosevelt nominated him to the Supreme Court. Like both Justice Black and Chief Justice Warren, Douglas had never served a day as a judge before joining the Court. Professor Douglas was best known as a legal realist, someone who tried to understand the effects the law might have on real people. With this background, it is no wonder that Justice Douglas would later write that the Constitution is not "neutral," but rather designed to achieve venerable ends, and take the government "off the backs of the people." Justice Douglas knew, after having served in other branches of government, that as a judge his constituency was not limited to esoteric precedent, but rather constitutional principles that invariably affect the nation at large. Not unlike his replacement, Justice John Paul Stevens, Justice Douglas decided cases by asking the same question over and over: what effects will this decision have on real people?
Justice Oliver Wendell Holmes, Jr. once said, "The life of the law has not been logic; it has been experience." Indeed, these three justices were great, not because they brought so much judicial experience to the bench, but because they brought so much wisdom to the bench. Wisdom they each collected after a lifetime in the courtroom and the classroom, on the Senate floor and in the Governor's Mansion. Wisdom they would never have acquired had they spent their lives in judicial robes.
Yet, despite this history, over the last half-century the "judicial experience" has crowded out "life experience." Today all nine Supreme Court Justices were elevated from the appeals court system; only one served as a trial judge, and only three served as prosecutors. None have served as either an elected official or diplomat. It strains credulity to say that our nation's highest Court is in tune with the nation itself.
President Barack Obama has said that he wants a justice who can empathize with the parties presenting their case, and with the people whose lives their decisions will affect. But judges do not have a monopoly on empathy. The President should look beyond the judiciary to nominate someone with real experience, in the classroom, in the courtroom, and in the government.
Given what we know about the president's high standards, Harold Koh is best person for the job. Koh is currently the State Department's Legal Advisor and the former Dean of Yale Law School. In Koh, President Obama would have a nominee with impeccable credentials (Harvard College, Marshall Scholar, Harvard Law School, clerk to Justice Blackmun), and outstanding intellectual firepower. Not only that, the president would have a nominee whose life experiences would add depth and perspective to the Court.
As Assistant Secretary of State for Democracy, Human Rights, and Labor, Koh helped promote freedom and democracy around the world. As a legal scholar, Koh has distinguished himself as an expert on national security and civil rights, an increasingly important component of the Supreme Court's docket during the War on Terror. And finally, as the dean of Yale Law School, he had to accommodate strong personalities, both conservative and liberal, a useful skill for an Associate Justice on an increasingly polarized Court.
Like Justice Black, Koh has served in another branch of government; like Chief Justice Warren, Koh has proven that he can work with conservatives and liberals alike; and finally, like Justice Douglas, Koh is prone to ask what effect laws and decisions have on real people. It is no surprise then that Jonathan Turley, a law professor at George Washington University, has compared Dean Koh to Justice Louis Brandeis. Incidentally, Justice Brandeis held the very seat that Justice Stevens is now vacating.
As President Obama searches for Justice Stevens's replacement, he should bear in mind Justice Holmes's prescient observation that the life of the law is experience, not logic. Harold Koh has distinguished himself as an expert advocate, a brilliant academic, and an outstanding public servant. The experiences that he would bring to the Court would enliven our nation's laws like no other nominee could.