An Asian American Justice Next Time?

For Asian Americans, as for other immigrant groups before them, there will be opportunity, but only if we continue to insist on our stake in the nation. We are equals. We deserve to be included.
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Asian Americans had hoped that President Barack Obama would make history by nominating one of us to serve on the Supreme Court. D.C. Circuit Judge Sri Srinivasan made the short list. Although the White House decision went in another direction as they say, Asian Americans -- like all Americans -- should maintain their interest in this crucial process. The Senate has the constitutional right and responsibility to offer its advice and consent, but its leadership has indicated that they will not do their job.

Before the President had even begun serious consideration of candidates, Senate leadership announced their intention to block anybody he chose. They essentially were saying that there was nobody who was qualified. They offered only one argument, that the vacancy arose during an election year.

In law school, students are taught early on about ethics. The factual foundation for any legal argument should be true. As careful thinkers will point out, it isn't a fact if it's false. Any assertion that has an erroneous premise ought to be given very little weight, if any at all.

This is such an instance. There is no actual tradition of avoiding judicial appointments in the last year of a Presidency. People have made the suggestion of course. But it has not carried the day. Justice Anthony Kennedy, for example, was selected by President Ronald Reagan (after two others had withdrawn) and then approved by the Senate in 1988 -- when Reagan was a lame-duck.

Asian Americans thought there was a strong possibility of an Asian American Justice. More than one name was mentioned. In his first six years, Obama changed the face of the judiciary. Among others, he tapped a record twenty Asian Americans for the lifetime posts. To put that into perspective, that is more than than all his predecessors added up.

Judge Srinivasan was the first South Asian person to become a federal appellate judge. As a Hindu, he took the oath of office with his hand on the Bhagavad Gita. He had the advantage of unanimous confirmation to his current role, only three years ago. (He is young enough, incidentally, to remain in contention for the next opening.)

After law school, Judge Srinivasan held a clerkship with Justice Sandra Day O'Connor. She was the first woman to become a Justice. She hired other Asian Americans for the prestigious job in her chambers -- the title "clerk" understates the importance of the position, functioning as a behind-the-scenes lawyer to the judge. In what arguably is her most important opinion, upholding the importance of diversity in higher education, she offered an observation that applies throughout a diverse democracy.

"In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry," she said, "it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity." Although the statement is technically what lawyers regard as "dicta," it is among the most powerful explanations of the significance of representation.

Ethnic whites, such as the late Honorable Antonin Scalia (whose passing made the seat available), were excluded from the fanciest law firms not too long ago. They were able to achieve the highest level of success within the profession, not only through individual achievement but also group civic engagement.

For Asian Americans, as for other immigrant groups before them, there will be opportunity, but only if we continue to insist on our stake in the nation. We are equals. We deserve to be included.

While we may be disappointed by this outcome, we must continue to be involved. Our help is needed for the political fight that lies ahead. It will establish our credit for the next chance.

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