This is the first of a series of posts examining the interaction of the Asian Pacific American community and our court system.  You can make an immediate contribution to increasing diversity on the federal bench by calling members of the Senate Judiciary Committee and signing a letter [link to come] urging your Senators to confirm Professor Goodwin Liu, nominee to the U.S. Court of Appeals to the Ninth Circuit. Professor Liu’s nomination will be voted on by the Senate Judiciary Committee this week.  Also, Judge Edward Chen, nominee to the U.S. District Court for the Northern District of California, is awaiting a full Senate confirmation vote.  You can call members of the Senate and sign a letter urging the Senators to take positive action on his nomination as well. 

The Supreme Court, Asian Pacific Americans, and the Judiciary

Today President Obama nominated Elena Kagan to the Supreme Court of the United States.  Her nomination brings into public spotlight the least noticed of the three branches of government.  While the media focuses on the work of the federal judiciary, it is an appropriate time for us to examine the role of Asian Pacific Americans in this branch of the government.

Towards an Asian Pacific American Supreme Court Justice

There has never been an Asian Pacific American on the Supreme Court.  Although disappointing, this fact is part of a larger issue related to Asian Pacific American under-representation on the federal bench generally.  Currently there are only 10 active Asian Pacific American Article III judges serving in our federal courts out of approximately 875 total judgeships.  (Article III judges have lifetime appointments). The only active Asian Pacific American appellate judge in the country is Judge Denny Chin, who was confirmed only last month to the Second Circuit.  Although Elena Kagan never served as a judge, every current Supreme Court Justice has been a federal appellate judge prior to nomination.  Asian Pacific Americans thus should not be surprised that no Asian Pacific American has yet to be nominated to the Supreme Court.  Quite simply, Presidential Administrations have not had many options even if they were interested in choosing an Asian Pacific American candidate.

In addition, securing a Supreme Court nomination requires tremendous patience, coordination, and strategy.  As Supreme Court observers recognize, choosing a Supreme Court Justice is a complex decision that requires the President to weigh many factors.  With approximately five percent of the American population, Asian Pacific Americans generally do not have critical mass to demand change even if the entire community was unified.  Rather, our community must be organized and strategic when advocating for change, and build coalitions with allies who will support our cause.   

Potential for the Future

The list of potential Asian Pacific American Supreme Court nominees is small, but growing.  Before Ms. Kagan was announced, State Department Legal Advisor Harold Koh had been mentioned in numerous circles.  Judge Chin’s 98-0 confirmation to the Second Circuit should increase his profile as well.  Among females, Judge Susan Oki Mollway (D. Haw.) has the stature and would have a powerful ally in Senate Appropriations Chair Daniel Inouye (D.-Haw.). 

Waiting in the ranks are a fast growing collection of former Supreme Court clerks and high-profile Asian Pacific Americans such as Preeta Bansal, Ivan Fong, Neal Katyal, Goodwin Liu, Brian Matsui, and Sri Srinivasan, and who are making their case for their nominations to our courts.  Asian Pacific American groups, like the National Asian Pacific American Bar Association and the Asian American Justice Center, have increasingly demonstrated their effectiveness in organizing and populating lower courts with young stars.  These efforts will pay dividends in years to come, when current lower court judges become candidates for future appellate court and Supreme Court nominations.

The future for our community in our federal courts is bright.  Asian Pacific Americans have recently made great advances in better representation in the judiciary.  Later posts will discuss how, in his first 16 months in office, President Obama already has nominated more Asian Pacific Americans for the judiciary than any prior President even in an eight-year term.  While today’s nomination may appear to be disappointing to some hoping to see the first-ever Asian Pacific American Supreme Court Justice, a growing field of qualified candidates and a President committed to diversity on the bench guarantees that reaching this goal is not too distant in the future.

Stay tuned for Future installments about the history, challenges, achievements, and future of Asian Pacific Americans in our federal court system.