Seeking APA Judges

By Julie D. Soo, Copyright 2005

Barely a week after the presidential election, a dozen or so APA state and federal judges from around the country took time out at the National Asian Pacific American Bar Association (NAPABA) 16th Convention in Dallas to discuss networking among APA judges and to enhance representation on the bench. With recent news of Justice William Rehnquist’s cancer and the buzz surrounding California’s Central District U.S. Attorney Debra Yang as a top contender for the Ninth Circuit Court of Appeals, most of the 500 attendees at the conference say judicial appointments top the agendas among the local affiliate bar associations.

THE FEDERAL BENCH

NAPABA’s Judiciary Committee was formed in 1994 to increase the proportion of Asian Americans and Pacific Islanders on the federal bench. Brian Sun, who served as NAPABA’s president in 1994, inspired this committee and served as its chair from 1994 to 1998 and co-chaired the committee with NAPABA’s immediate past president, John Yang, from 1998 to 2000. (Sun’s name is familiar to those who followed the Wen Ho Lee case and who are following the Katrina Leong case.) Yang continues as chair to date and during his tenure this past year as NAPABA’s president, he traveled to various states to lobby for state bench appointments as well.

According to the Administrative Office of the U.S. Courts, out of a total 876 authorized seats in the federal judiciary nationwide, seven currently active judges are of Asian American or Pacific Islander descent, less than 1 percent of the federal bench. According to a synopsis compiled by James Ho, Majority Chief Counsel of the U.S. Senate Judiciary subcommittee on the Constitution, Civil Rights, and Property Rights, chaired by Sen. John Cornyn (R-Tex.), since February 2003, NAPABA Judiciary Committee records show that to date, the committee has formally endorsed eleven candidates for federal judgeships. Five have been nominated thus far, and of those, four have been confirmed by the Senate.

The NAPABA Judiciary Committee endorsed its first candidate during President Clinton’s first term with the nomination of Judge A. Wallace Tashima to the U.S. Court of Appeals for the Ninth Circuit in 1995; he was confirmed and appointed to the bench nine months later. The committee endorsed seven candidates and saw two appointed during Clinton’s second term, and it endorsed three candidates and was one appointed during President Bush’s current term. Since Tashima’s appointment, three APA attorneys have been appointed to the federal bench, with the NAPABA committee’s endorsement: U.S. District Judges Anthony W. Ishii (E.D. Cal. 1997), Susan Oki Mollway (D. Haw. 1998), and Dana M. Sabraw (S.D. Cal. 2003). The committee in 2000 endorsed Dolly Gee, a Clinton nominee to the U.S. District Court of the Central District of California but a hearing leading to confirmation did not materialize prior to a change in administration.

Rounding out the seven on the federal bench are: Ronald S.W. Lew (C.D. Cal. 1987), Denny Chin (S.D. New York 1994), and George H. King (C.D. Cal. 1995). Robert M. Takasugi (C.D. Cal. 1976) is currently designated as senior status.

“Becoming a federal judge is a process that is not like applying for any other job,” said a Washington, D.C. attorney and insider familiar with the process who asked not to be named. “It’s like running for office, highly political. You can’t necessarily plan for becoming a federal judge and there is no text book method. It has to be a long-term goal. Don’t think about just trying once. With the public scrutiny that comes -- the huge personal toll and time commitment, you have to make an all out commitment to the process no matter what.”

Getting to the federal bench can be thought of in two phases: (1) nomination and (2) confirmation. While the nominations process -- with a 25 to 30 page application and thumbs up from the home state senators or their appointed selection committee -- is daunting, it is nonetheless in the hands of the applicant and is generally straightforward. But once the White House issues and announces its “Intent to Nominate” the candidate and confirmation process begins, the unpredictability of the political world begins.

In 2000, NAPABA’s then-Executive Director Nancy Choy, reported on the findings of a non-partisan blue ribbon study, issued by the Citizens for Independent Courts’ Task Force on Federal Judicial Selection, that highly qualified women and minority judicial candidates took significantly longer or failed at a higher rate in the Senate Judiciary Committee than their white male counterparts. Ted Stewart, a white nominee supported by Utah’s Senator Orrin Hatch received a hearing within 48 hours of being nominated, and was confirmed after two-and-a half months. In contrast, Susan Oki Mollway, took two-and-a half years to be confirmed, and Dolly Gee, who as nominated prior to Stewart, continued her wait for her a confirmation hearing.

THE STATE BENCH AND GROWING THE APA POOL

In the quest for APA federal judicial candidates, NAPABA -- the voice of over 40,000 APA attorneys -- is also stepping up efforts to increase the ranks of APA state judicial candidates. Nationwide, according to the American Bar Association (ABA), only about 1.5 percent of judges at the state court level are APA. NAPABA’s John Yang says that he has put some strong effort into California, a natural place to start given the largest potential pool of applicants. He and other NAPABA representatives have met with Randal Hernandez, the governor’s appointments secretary, to talk about gaining more APA seats on the state bench.

What makes Yang’s job difficult is that until recently, statistics had not been kept on APA judges and disparities had not been examined. In California, at state’s highest court, 2 out of 7 of the Supreme Court justices are APA, Joyce Kennard and Ming Chin. But at the intermediate appellate level, in stark contrast, there are only 2 out of 103 Court of Appeal justices. San Francisco, home to the largest minority bar association in the nation with the Asian American Bar Association of the Greater Bay Area (AABA) and an anchor affiliate for NAPABA, saw the ranks of its six APA Superior Court judges nearly cut in half with the death of Judge Lenard Louie this spring and the retirement of Judge Lillian Sing in the summer. Harry Low became the first Asian American municipal court judge in San Francisco in 1966 (and retired from the Court of Appeal in 1992) and Sing became the first Asian American woman judge in Northern California in 1981.

California, the state with the highest concentration of APAs, has some 150,000 attorneys. In 2001, the California Bar’s racial breakout was 83 percent white, 6 percent Asian American, 3.7 percent Hispanic, and 2.4 African American, the gender breakout was 68 percent male and 32 percent female.

Yang, a young partner at Wiley, Rein & Fielding in litigation, appellate, and insurance practice areas in Washington, DC, sees the effects of a “soft glass ceiling.”

“There is a stereotype of APAs as passive and they’re not thought of as premier litigators,” said Yang. “And, litigation is a typical background for judges.”

Yang and the NAPABA Board of Directors have been working behind the scenes to increase the numbers of potential judges, from grooming young attorneys in career choices and the “right steps toward judgeship” to educating ripe candidates on the application and selection process.

According to American Bar Association (ABA) statistics cited by Yang, APAs are entering ABA accredited law schools at a rate of about 6 percent. This figure slightly outpaces the national APA population of about 4.4 percent. And indeed, even in the ivory towers of academia, law school ranks are starting to change. Three of the nation’s 187 ABA approved law schools began this fall semester with APA deans: Allen Easley at William Mitchell College of Law in St. Paul, Minn.; Harold Hongju Koh at Yale Law School in New Haven, Conn.; and Frank Wu, AsianWeek columnist, at Wayne State University Law School in Detroit, Mich. Wallace Loh was a “first,” having served as law school dean at the University of Washington from 1990 to 1995.

But, Yang is quick to point out that in spite of the significant increase in the number of APA law school graduates over the last 10 years, APA partnership in major law firms has remained rather elusive.

However, as APA attorneys have broadened their ranks in the public sector -- in district attorney offices, public defender offices, the U.S. Attorney’s offices, and the state attorney general offices -- and are recognized as strong litigators, the pool of qualified and willing judicial candidates is naturally ready to expand. The remaining and less predictable ingredient is politics.

DIVERSITY MATTERS

“We need a bench to reflect the diversity of the populus,” says San Francisco Superior Court Judge Julie Tang.

“More and more APAs are appearing before the bench in both civil and criminal court: litigants, jurors, defendants, and attorneys,” explained Tang. “Those who appear before the bench should feel that adjudicators reflect their backgrounds and cultures; the white majority has always had that and APAs are entitled to no less.”

On the California Court of Appeal, Low fought racism from the bench in his trademark low key and elegant manner. In Peat, Marwick, Mitchell v. Superior Ct., 200 Cal.App.3d 272 (1988), Low authored a separate concurring opinion to denounce the widespread use of the term “Chinese Wall” to describe a kind of screening mechanism or confidentiality, stating in part:

“The enthusiasm for handy phrases of verbal shorthand is understandable. Occasionally, however, lawyers and judges use a term which is singularly inappropriate. “Chinese Wall” is one such piece of legal flotsam which should be emphatically abandoned. The term has an ethnic focus which many would consider a subtle form of linguistic discrimination. Certainly, the continued use of the term would be insensitive to the ethnic identity of the many persons of Chinese descent. Modern courts should not perpetuate the biases which creep into language from outmoded, and more primitive, ways of thought… []It is necessary to raise a clenched cry for jettisoning the outmoded legal jargon of a bygone time. If the image of a wall must be used, perhaps “ethics wall” is more suitable phraseology.” Id. at 293, 294.

Legal historians and academicians are left to ponder about the results of landmark cases involving APAs had there been APA representation on the federal bench in early years. Edward M. Chen, a former staff attorney with the ACLU, was appointed in 2000 to magistrate judge for the United States District Court in the Northern District of California, the first APA to fill that role in its then-150 year history. The most famous and infamous APA cases have been heard in that court. At the time of this appointment, Low, a mentor to Chen and close family friend, characterized the court as “a mechanism of punishment and mistreatment of Chinese in the past.” Beginning in the 1850s, the Northern District Court of California upheld laws that hurt Asian immigrants, including a tax on foreign miners and a bar on Chinese from acting as witnesses against whites in criminal cases.

In recent times, the court in 1974 denied relief to non-English-speaking students who sought additional educational resources (Lau v. Nichols). A case of great significance came in 1944 involving the conviction of Fred Korematsu, an Oakland native who refused to report to a Japanese American internment camp during World War II. Chen and a team of attorneys reopened the case and eventually got District Court Judge Marilyn Hall Patel to vacate Korematsu’s conviction in 1984.

Dale Minami, renowned San Francisco civil rights attorney, who was lead counsel on the Korematsu case, said at the time of Chen’s appointment that it broke stereotypes and would bring forth more judicial applicants. “Symbolically, by people seeing an Asian American on the bench, it not only helps destroy the perception of Asian Americans as foreigners, but it will encourage more Asian Pacific Americans applying for judicial positions,” said Minami.

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