As Supreme Court Justice Replacement Talks Take Place, Where Are the AAs?

BY CAROLINE AOYAGI, Executive Editor, Pacific Citizen

Supreme Court Justice Sandra Day O’Connor’s announcement of her retirement recently shocked both sides of the philosophical aisle and now conservatives and liberals, women, and minorities are scrambling to have their say in President George Bush’s choice for her replacement. But in the midst of all the rhetoric, Asian Americans are raising their voices and asking: isn’t it about time for an AA Supreme Court Justice?

“It is only a matter of time before we see an Asian Pacific American on the U.S. Supreme Court,” said Attorney John C. Yang, immediate past president of NAPABA (National Asian Pacific American Bar Association) and chair of the group’s Judiciary Committee. “The selection of a Supreme Court Justice is in part a political decision.”

He adds, “It’s a two-way street. Asian Pacific Americans must continue to do a better job of becoming active politically … At the same time, the current political leaders must recognize that there is an appalling lack of Asian Pacific American representation in the judiciary and upper levels of government generally.”

So far the odds are not stacked in their favor. Never in the history of the U.S. Supreme Court has an AA sat on nor even been considered as a nominee for the post by a U.S. president. As the list of possible nominees continues to leak, there is no mention of an AA candidate although two Hispanics, an African American, and three women have so far been short-listed; dominating the list are White men.

And it’s not that there is a shortage of qualified AA judges and lawyers to replace O’Connor who announced her retirement July 1. AAs have been rising in the ranks and several hold esteemed judgeships and academic positions throughout the country. Last October, The New York Times ran an article with possible Supreme Court Justice nominees and Harold Hongju Koh, dean of Yale Law School, was at the top of the list. Koh is a well-known scholar who has worked in both the Democratic and Republican administrations.

In addition to Koh, qualified candidates include: Circuit Court Justice A. Wallace Tashima and District Court Judges Ronald S. W. Lew, Denny Chin, Susan Oki Mollway, Anthony W. Ishii, George H. King, Dana Makoto Sabraw, and Robert M. Takasugi. State Supreme Court Justices include: Ming Chin and Joyce Kennard in California; and Ronald Moon, Paula Nakayama and Simeon Acoba in Hawaii. Anthony B. Ching, was the first-ever solicitor general of Arizona and other current and former deans of law schools include Frank Wu, Wayne State; Wallace Loh, University of Washington; and Allen Easley, William Mitchell College of Law.

“Until recent years, there was not the large pool of available and acceptable candidates. We now have many brilliant jurists who could wear one of the nine black robes with the capabilities the position requires,” said Attorney Dale Minami, one of the lead attorneys in the landmark Korematsu vs. U.S. coram nobis case.

“There are jurists such as United States Court of Appeals Judge Wallace Tashima and California Supreme Court Justice Ming Chin who are well-qualified to serve on the Supreme Court. They deserve to be considered for appointment,” said Attorney Albert Muratsuchi, former JACL PSWD regional director.

Currently, of the 876 federal judiciary seats nationwide, only seven judges are AA or Pacific Islander, roughly about one percent, according to the Asian American Bar Association. At the state level, only about 1.5 percent of judges are Asian Pacific American, according to the American Bar Association. Interestingly, ABA statistics show that enrollment of APAs in accredited law schools is about six percent, a figure higher than the national APA population of 4.4 percent.

So why hasn’t an AA candidate ever been considered for the U.S. Supreme Court? The answer may be in the numbers where AAs as a group make up only 4.4 percent of the national population thus resulting in a weak political presence. The Hispanic community on the other hand has been growing at an exponential rate and currently make up 14 percent of the population. Their growing numbers and influence can now be seen in the potential Supreme Court nominations of Emilio Garzo, 5th U.S. Circuit Court of Appeals, and Alberto Gonzales, U.S. attorney general.

“There are a growing number of Asian Americans who are qualified but you still have to align parties and philosophies. President Bush hasn’t put many Asian Americans … on the bench,” said Karen Narasaki, president and executive director of the National Asian Pacific American Legal Consortium. NAPALC is a member of the Coalition for a Fair & Independent Judiciary, a network of nearly 100 national and state organizations.

Still, many APAs argue that the U.S. Supreme Court should be reflective of the various populations it serves, bringing a diverse representation to the highest court in the land. The groups also note that seeing a fellow APA serving on the bench would encourage more APAs to follow in their paths toward judgeship positions.

“Having an Asian American on the Supreme Court means winning equal justice for Asian Americans,” said S.B. Woo, president of 80-20, a non-partisan political action committee that has actively been promoting AA candidates for the U.S. Supreme Court. “Mind you the Supreme Court okayed the internment of Japanese Americans during World War II. In contrast, once we have a spot on the Supreme Court, every individual contemplating acting unjustly towards Asian Americans will be conscious that such injustice could eventually be appealed to the Supreme Court.”

“It is essential that the court reflect the diversity of viewpoints and experiences of the country’s residents,” said Yang. “Throughout history, Asian Americans often have been perceived as perpetual foreigners, even by judges. Having an Asian American on the Supreme Court may help to combat such stereotypes and prevent those miscarriages of justice.”

Although several groups had been prepared for a change in the U.S. Supreme Court, their belief was that ailing Chief Justice William Rehnquist, 80, would be the first to retire. A moderate jurist, O’Connor, 75, has often cast the pivotal decision on numerous controversial issues such as abortion, affirmative action, and the death penalty during her 24 years on the Supreme Court.

The Judiciary Committee is likely to hold meetings about six weeks after President Bush submits his nomination, which will likely be in early August. Bush has said he would like to have a replacement for O’Connor in place by October.

Although APAs are pushing for a fellow APA candidate, they emphasize that being a member of the community isn’t the only qualification they are looking for.

“It’s not important only that an Asian be on the U.S. Supreme Court, but the right Asian, someone who’s demonstrated cultural sensitivity and awareness to APA cultures and communities,” said John Tateishi, JACL executive director. “I mean, it does no good to have an Asian version of a Clarence Thomas on the high court.”

“We don’t just want any Asian American on the Supreme Court,” agreed Woo. “We want an Asian American who is not only a highly qualified jurist but also one who truly believes in equal justice and equal opportunity for all Americans. We want a Thurgood Marshall not a Clarence Thomas.”