Will an Asian American make History As the Next Supreme Court Justice?

By Jennie L. Ilustre

The demise of Supreme Court Justice Antonin Scalia on February 13 has given rise to two important questions.

First, should his replacement be confirmed this year, or should that await the results of the Nov. 8 presidential elections? A Feb. 18-21 Pew Research Center survey shows 56 percent of Americans believe the Senate should hold hearings to confirm Scalia’s  successor and vote on President Obama’s nominee, with 38 percent against.

Former Supreme Court Justice Sandra Day O’Connor said the process should take place now. Senate Majority Leader Mitch McConnell (R, Kentucky) opposes the idea, betting on a conservative 9th justice if the Republicans win on Nov. 8.

Currently, the Supreme Court is evenly split: 4 liberal justices and 4 conservatives. Scalia was known as the anchor of the highest court’s conservative majority. With the many hot button issues on the Supreme Court’s plate, the successor’s potential tie-breaking role would affect a generation. Consider: Obamacare (Affordable Healthcare Act), immigration reform, reproductive rights and abortion, gay marriage and environmental regulation. And so, the battle rages on.

The second question appears to have been answered. Will Sri Srinivasan, 48, born in India, and a judge in the U.S. Court of Appeals for the District of Columbia Circuit, make history as President Obama’s choice to the Supreme Court? A former cabinet secretary declared “he’s the one,” and a prestigious Asian American national leader cites two strong arguments in Srinivasan’s favor.

Former Labor Secretary Robert Reich insisted that his “White House mole” had told him Srinivasan is the one, according to a Politico news report, quoting from his Facebook page. Reich, who served as secretary of the Department of Labor under President Bill Clinton,  made the declaration on February 14, the day after Supreme Court Justice Antonin Scalia died from natural causes at age 79.

Reich wondered if Srinivasan is a progressive. Politico said he didn’t know but he seemed fine with it. The top D.C.-based newspaper added Reich also wrote that he thinks the president couldn’t do better than Srinivasan. Reason: No other nominee would get a majority of Senate votes and win confirmation as Supreme Court justice.

Indeed. Prof. S.B. Woo, the dedicated president of 80-20 Initiative, Inc., a non-partisan political action committee, cited two reasons why Srinivasan is the likely nominee: 1) Srinivasan served as a law clerk for former Supreme Court Justice O’Connor, a conservative, and 2) Srinivasan was confirmed by the Senate less than three years ago by a unanimous vote of 97-0.

Christopher Kang, the National Director of the National Council of Asian Pacific Americans (NCAPA), served as a former Deputy Assistant and Deputy Counsel to President Obama in the Office of the White House Counsel. He was in charge of the selection, vetting, and confirmation of the president’s judicial nominees.

“As the lawyer in charge of the day-to-day selection, vetting, and confirmation of President Obama’s judicial nominees for more than four years, I can tell you that it actually was quite simple–the president made a commitment to a judiciary that resembles the nation it serves,” Kang said. He pointed out that Asian Pacific Americans are the nation’s fastest growing minority group.

“One of President Obama’s biggest accomplishments with respect to the Asian Pacific American community is his appointment of a record number of APA federal judges,” Kang wrote in a Feb.18 editorial in the NCAPA website. “Now, as he considers Supreme Court candidates, the president has an opportunity to truly cement this legacy.”

On February 20, an official source said in an interview, “I don’t know anything about it,” but noted media reports that President Obama’s announcement would be made in three weeks, or before mid-March.

 

Srinivasan’s Qualifications

According to the National Asian Pacific Bar Association (NAPABA), which has enumerated qualified Asian American judges for the vacancy, “Judge Sri Srinivasan is ready.”

NAPABA summed up Srinivasan’s qualifications: “Judge Srinivasan is a former law clerk to Supreme Court Justice Sandra Day O’Connor and currently serves on the U.S. Court of Appeals for the District of Columbia Circuit. He was confirmed by the Senate in 2013 by a unanimous 97–0 vote. Judge Srinivasan has a record of service in the US Solicitor General’s Office for three Presidents spanning both parties, and he has earned praise from a bipartisan group of Solicitors General and judges. He has appeared before the Supreme Court over two dozen times, having served as principal deputy solicitor general of the U.S. and chair of the Supreme Court and Appellate Practice at O’Melveny & Myers.”

NAPABA pointed out that there has never been an APA Supreme Court Justice: “Over the 227-year history of the Supreme Court, only three of the Court’s 112 Justices have been people of color. In 1967, Justice Thurgood Marshall became the first African American Justice. Justice Clarence Thomas became the second African American Justice in 1991. In 2009, Justice Sonia Sotomayor became the first Hispanic American to serve on the Court. We are still waiting for the day when an APA or a Native American jurist joins them.”

 

Legacy

Indeed, the Supreme Court vacancy has galvanized Asian American & Pacific Islander organizations, according to the National Council of Asian Pacific Americans (NCAPA). And why not? Consider demographics and qualifications, they point out.

NCAPA National Director Kang noted: “There were almost twice as many Asian American voters in 2012 as there were in 2000, and by 2040, the number of Asian American registered voters will double yet again. We deserve–and demand–a government that is reflective of our nation’s changing demographics.”

He noted: “In 2009, I had the honor of working on Justice Sonia Sotomayor’s confirmation, as she became the first Hispanic Supreme Court Justice. A year later, I assisted on Justice Elena Kagan’s confirmation. For the first time, three women (along with Justice Ruth Bader Ginsburg) sit on the Supreme Court at the same time. Throughout those processes and beyond, these remarkable women have had an indelible impact on our nation–not just in their rulings and their commitment to equal justice under the law, but also in inspiring countless Americans that the doors to opportunity are opening to all.”

Kang stressed, “While judges will not necessarily consider a case differently because of their background–they are sworn to uphold the law and precedent–when the men and women who deliver justice look more like the communities they serve, there is greater confidence in our justice system overall.”

(View the full text of NCAPA National Director Kang’s editorial elsewhere in this website.)

 

Endorsements

Kang said NCAPA member-organizations, other Asian American organizations, as well as members of Congress have urged President Obama to nominate an Asian American to the Supreme Court.

 

CAPAC

The Congressional Asian Pacific American Caucus (CAPAC), chaired by US Rep. Judy Chu (D, CA-27), issued a statement on Feb. 16: “The Congressional Asian Pacific American Caucus stands with President Obama and urges the President to nominate a replacement for Justice Scalia who has the qualifications, integrity, and temperament to serve on our nation’s highest court. Over the past several years, CAPAC Members have worked closely with the President to ensure that he nominates highly qualified and diverse judges to the federal bench, and we urge him to make history by nominating the first Asian American and Pacific Islander jurist to the Supreme Court.”

Congresswoman Chu also stressed: “The Senate has a constitutional duty to consider judicial vacancies expeditiously, and I am dismayed that Senate Majority Leader Mitch McConnell has chosen to embrace partisanship ideology rather than enable the President and the Senate to fulfill its duty to the American people. There are important decisions pending before the United States Supreme Court ranging from the President’s immigration actions to the environment, and it is vital that we have nine members of the Court to decide these constitutional issues that will shape the future of our country.”

 

SABA

The South Asian Bar Association of North America (SABA) urged President Obama to nominate a South Asian to the US Supreme Court. “According to the most recent US Census Data, within 30 years, more than half of all Americans are projected to belong to a minority group,” SABA pointed out. “Indeed, the South Asian population in the United States grew a staggering 81% between 2000 and 2010, and South Asians now rank as the fastest growing ethnic group in the U.S., surpassing Hispanics and other Asian Americans.”

“Beyond just the population explosion, citizens of South Asian descent have become influential voices and leaders within government and the greater legal community,” SABA stressed.

“SABA North America, an organization representing thousands of South Asian legal professionals across this country, urges President Obama to nominate a South Asian attorney as the next Supreme Court Justice of the United States,” the statement added. “Appointing an immigrant or child of immigrants to this nation reflects the excellence found within the Minority Bar and ensures the continued diversity of our Judiciary.”