Asian-Americans still waiting for their US Supreme Court voice

For all Biden’s talk of representing everyone, his pick of Ketanji Brown Jackson leaves Asian-Americans on the outside looking in again
The bipartisan exclusion of Asian-Americans from high government offices suggests there are greater barriers limiting their opportunities

Chi Wang

Published: 1:30am, 8 Apr 2022

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In the late 1950s, at the start of my career at the US Library of Congress, a man I did not know asked to join me one day as I ate lunch in the cafeteria. Such occurrences were not uncommon on Capitol Hill, where thousands of advisers, officials, staff, journalists and Congress members convened on any given day.

Yet the man I shared my table with that day held a far more important position than most of my usual lunchtime companions: he was Supreme Court Justice William Douglas.

While there are 100 Senators and 435 members of the House of Representatives, the Supreme Court – the highest court in the United States – has consisted of just nine justices since 1869. The US Constitution created the judicial branch, which includes the Supreme Court, as an equal of the legislative and executive branches.

Each justice is one of the most important figures in the US government with massive responsibilities, and each serves for life or until they choose to retire.

Vacancies on the court are rare, though in recent years three new justices have been confirmed: Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020. Now, another vacancy has been being filled, with the historic nomination of Ketanji Brown Jackson, whom Congress confirmed today. Jackson will be the first black woman to serve on the US Supreme Court.

Judge Ketanji Brown Jackson in Washington on April 5. Photo: EPA-EFE

Douglas was not the last Supreme Court justice with whom I crossed paths in my nearly 50 years working on Capitol Hill. In another notable lunch in 1991, Justice Thurgood Marshall informed me of his plans to retire. Marshall’s appointment to the court in 1967 made history as the first black justice to join its ranks.

Throughout my career on the Hill, I witnessed other groundbreaking Supreme Court appointments including Sandra Day O’Connor and Sonia Sotomayor – the first woman and first Hispanic person to serve, respectively. Now we have reached another milestone. Yet, while recognising the historic nature of this appointment, I find myself wondering when, or if, Asian-Americans will secure their own historic representation on the Supreme Court.

All told, 115 justices have served in the Supreme Court’s 232-year history, including 108 white men, four white women, two black men and one Hispanic woman. When I first sat down for lunch with Douglas, I never had any dreams of Asian representation on the court; most Asian-Americans had only just gained citizenship rights in 1952.

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Dalip Saund of California had only just become the first Asian elected to Congress in 1957, so I was hardly holding my breath to see an Asian-American join the Supreme Court. But in the decades since, as presidents have promoted more diverse candidates to fill Supreme Court vacancies, I began to wonder when it would be our turn.

US President Joe Biden’s pledge to appoint a black woman to the Supreme Court generated controversy almost from the start, and this increased as he followed through on this pledge following the retirement of Justice Stephen Breyer. Biden made his original pledge when his campaign for the Democratic Party’s nomination in 2020 appeared on the brink of disaster following disappointing results in the Iowa caucuses and New Hampshire primary.

Biden was gambling that, by promising to name a black woman to the Supreme Court, black women voters would support him over the wide field of other Democratic candidates. Biden ultimately turned around his campaign with decisive victories in the South on the way to securing the Democratic nomination.

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In announcing his intention to nominate a black woman to the Supreme Court, Biden said such a move would “make sure we in fact get everyone represented”. But Asian candidates never had a chance for consideration to fill the vacancy.

As Emil Guillermo noted for the Asian American Legal Defence and Education Fund, there were plenty of qualified Asian candidates Biden could have considered, including Neal Katyal, Denny Chin and Lucy Koh. Of the 179 federal appellate court judges, from whose ranks Supreme Court justices are often selected, there are currently 12 Asian-Pacific Americans.

For all of Biden’s pledges to represent all of the US, to appoint a government that reflects the diverse make-up of the country and to stand up for Asian-Americans in the wake of violence and xenophobia, in practice, Asians remain on the outside looking in.

Republicans – who try to portray themselves as champions of Asian-Americans by criticising affirmative action, including in a case the Supreme Court will hear later this year – have likewise ignored Asians when it comes to choosing Supreme Court nominees.

Former president Donald Trump reportedly considered Amul R. Thapar to fill the vacancy created by the death of Justice Antonin Scalia in 2016 and again following the retirement of Justice Anthony Kennedy in 2018, but he ultimately chose white men for both vacancies. He also filled the seat of Justice Ruth Bader Ginsburg, who died in 2020, with Barrett, a white woman.

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The Supreme Court should better reflect the demographics of the nation, but there are limitations to this approach’s potential, especially as the Biden administration seems to have backed away from progressives’ suggestion to “pack the court” by adding more justices and enlarging it beyond its traditional roster of nine.

It is virtually impossible to encompass all of the US and its diversity through the individual backgrounds of nine people who serve for life.

Yet the exclusion of Asian-Americans from other high government offices leads me to believe there are greater barriers limiting their opportunities. With the average tenure of Supreme Court justices expected to increase to 35 years this century, Asian-Americans hoping to see their community represented on the court might have a long time to wait.

Chi Wang, a former head of the Chinese section of the US Library of Congress, is president of the US-China Policy Foundation