Asian Pacific American jurists are experiencing an unprecedented rate of appointment to the federal bench, but the highly partisan confirmation process of late threatens to nullify those gains.
By Suevon Lee
Since taking office two years ago, President Obama has been leaving a distinct imprint on the nation’s courts. In August 2009, the U.S. Supreme Court gained its first-ever Latina justice and will seat three female justices—its largest margin yet—when it reconvenes in October.
While the historic Supreme Court nominations of Sonia Sotomayor and Elena Kagan have garnered much attention, Obama’s attempts to diversify the federal bench among the circuit and district courts nationwide can’t be overlooked.
Out of his 85 judicial nominations to date, 44 percent have been people of color, while 45 percent have been women. Especially notable is the number of Asian Pacific Americans Obama has thus far nominated to the federal bench—eight, with four of those nominees now confirmed, including Lucy H. Koh, a federal judge in the Northern District of California and the second-ever Korean American U.S. District Court judge.
“To see that sort of progress in about a year and a half is certainly very encouraging from our perspective,” said John Yang, an attorney who serves on the judiciary committee of the National Asian Pacific American Bar Association.
To put these figures into greater context, over his eight-year presidency, Bill Clinton named five Asian Pacific Americans to the federal bench, including Susan Oki Mollway, a U.S. District judge in Hawaii, out of a total 372 confirmed appointees. Under George W. Bush, four APAs were named to the federal bench out of a total 322 confirmed appointees in Bush’s two-term administration.
There is good reason why Asian Pacific American legal advocacy groups celebrate Obama’s concerted efforts to name people of color to the federal judiciary. Out of the 875 active Article III judges (judges nominated by the president, confirmed by the Senate and appointed to lifetime terms), only 11 are APA, and just one serves on the appellate level—Judge Denny Chin, an Obama appointee confirmed in April who is seated on the 2nd Circuit Court of Appeals.
Although APAs constitute 5 percent of the U.S. population, they fill just a little more than 1 percent of federal judgeships. Among other minorities, African Americans hold 11 percent of federal judicial seats and Hispanics 7 percent, while representing about 12.3 percent and 15.8 percent, respectively, of the total U.S. population.
“Having APAs represented on the bench—having a diversity of individuals on the bench—is very important,” said Tina Matsuoka, executive director of NAPABA. “Citizens have great confidence in a system that reflects back on them and looks like them, and confidence when judges in the system understand their experience.”
That especially is important considering that federal judges are hearing cases relating to immigration, discrimination, civil rights or education, issuing rulings that can have profound impact, legal experts say. Consider two recent key rulings by federal judges: In July, U.S. District Judge Susan Bolton blocked the implementation of major provisions of a controversial Arizona law that would require police officers to investigate suspected undocumented immigrants. Meanwhile, last month in California, Chief U.S. District Judge Vaughn R. Walker invalidated Proposition 8, the voter-approved ban on same-sex marriage in California.
But even as Asian Pacific American jurists are experiencing an unprecedented rate of appointment in such a brief span, at no other time has the confirmation process been so fraught with opposition, according to judicial watch groups.
Despite roughly 100 vacant seats in the federal judiciary, nearly 50 of Obama’s nominees are still awaiting a vote by the full Senate. According to the Asian American Justice Center, a national civil and human rights organization based in Washington, D.C., Bush had 59 percent of his district court nominees confirmed at this point in his presidency while Obama has had 44 percent confirmed.
“The delays are unprecedented. We’ve never seen the level of obstructionism these nominees are encountering,” said Nan Aron, president of D.C.-based public interest group Alliance for Justice, who adds these delays are not only designed to block candidates, but to “weaken the Obama presidency.”
Of additional concern is that five of the six judicial nominees who have waited the longest for Senate confirmation are minorities. They include Goodwin Liu, a University of California, Berkeley law professor nominated to the 9th Circuit Court of Appeals, and Edward Chen, a federal magistrate judge nominated to the U.S. District Court for the Northern District of California.
These nominees have earned overwhelming accolades from their peers in the legal community and even among some Republicans.
Tom Campbell, who served nine years in Congress as a Republican and is former dean of the Haas School of Business at U.C. Berkeley, has stated that Liu will bring “a strong reputation for integrity, fair-mindedness and collegiality to the 9th Circuit.”
San Francisco-based attorney Dale Minami, who has known Chen for 37 years, called him an outstanding jurist. The two worked together on the historic case to overturn the conviction of Fred Korematsu, who defied President Franklin D. Roosevelt’s World War II order to intern Japanese Americans.
But the jurists’ chances at confirmation seem to grow dimmer with each passing month. Before recessing in August, the Senate returned both names to the White House, along with that of former Wisconsin Supreme Court justice Louis Butler, an African American, and Rhode Island lawyer John McConnell, who is Caucasian.
“They’re being used as pawns in the bigger picture of political gamesmanship, and when it comes down to it, it has nothing to do with them and their ability to serve,” said the Asian American Justice Center’s Nicole Duran of Liu and Chen. “It’s not good for the federal judiciary, and it’s certainly not fair to them.”
Liu, whom the Senate Judiciary Committee voted for 12-7 along party lines, would become the only active APA on the Ninth Circuit.
The former Rhodes Scholar has in the past criticized the Supreme Court nominations of Chief Justice John G. Roberts, Jr. and Justice Samuel Alito, Jr., and has been cast by Republicans as too liberal.
Chen, first nominated by Obama for a district court seat more than a year ago, has also come under sharp scrutiny by the GOP, who questions his former ties to the American Civil Liberties Union and for remarks he made following the September 11 attacks about his concerns of a possible slide in race relations and religious tolerance in the country.
“Chen and Liu have become very visible as sources of Republican opposition for reasons I can’t understand,” said Russell Wheeler, an expert on the judicial selection process at the Brookings Institution in Washington, D.C. “I don’t think either of them are the flame-throwers Republicans have made them out to be.”
“I just think this nomination process has gotten so ugly that someone like [Liu] who would have gotten confirmed 20 years ago—that’s just not happening now,” Wheeler added.
Obama must decide whether to resubmit these names for nomination when Congress returns in September; advocacy groups have expressed they largely expect that to occur.
Matsuoka urged members of the APA community to stay in tune with this important issue and “hold elected [officials] accountable for how they’re going to vote” through group mobilization and calls to their local senators.
There’s no telling whether these two nominations may languish. Dolly M. Gee, the first Chinese American woman to serve as an Article III judge, was first nominated to the bench by Clinton in May 1999, but blocked from even a Senate Judiciary Committee hearing. Gee had to wait another decade before finally reaching the federal bench.
Obama nominated her to the U.S. District Court for the Central District of California last August, and the Senate confirmed her in December 2009.
But community advocates are hoping Liu and Chen won’t have to wait 10 years before they, too, can mark their own places in the annals of American judicial history.