Filipino Chief Justice Would Have Been Perfect, But Not Now
by Emil Guillermo
If you’re an Asian American Filipino, you don’t stand a chance. Such is the case when it comes to SCOTUS politics.
On President Joe Biden’s Supreme Court shortlist is Leondra Kruger, a justice on the State Supreme Court of California.
It’s Kruger and not the actual chief justice of that court in California, Tani Gorre Cantil-Sakauye, the first Asian American Filipino and the second woman to serve as chief justice in the most populous state in America for the last 12 years.
Is Cantil-Sakauye qualified? Yes. But also, sadly no.
Not in these times when justice is more political than not and a matter of perspective.
Trump had his three picks and now with the announced retirement of Justice Stephen Breyer, Biden gets a turn to pick a Democrat of his choice.
That’s definitely not Cantil-Sakauye, who was appointed by a former moderate Republican, Gov. Arnold Schwarzenegger. She would have been a perfect nominee for one of Trump’s three court picks but Trump was hellbent on politicizing the high court.
Cantil-Sakauye is the kind of moderate any American would have liked to see sitting on today’s 6-3 conservative court now.
But for this vacancy she is the wrong party, the wrong ethnicity, and in the wrong era, when the court is being engineered to advantage a political side.
Last Thursday, Biden officially reaffirmed what people had assumed all along. He made a campaign promise to appoint an African American woman to the Supreme Court, and that’s what he’s going to do now.
So instead of the Asian American Filipino Chief Justice of California, her junior, Leondra Kruger gets on the shortlist.
Kruger, 45, American Jewish on her father’s side and Jamaican on her mother’s side, has served on the court since 2015. She’s a graduate of Harvard College and Yale Law. Qualified? Yes.
As is the other top name, Ketanji Brown Jackson, 51, a judge on the U.S. Court of Appeals in DC. She’s a double Harvard, college and law school. A member of the school’s board of overseers. And she served as a law clerk to Justice Breyer.
Kruger and Jackson both have impressive credentials, as do all the women you’ll see mentioned on any of the media “shortlists.”
But why keep the list short and exclusive?
Why not diversify the list to showcase the emerging generation of legal talent that, as they say, looks like America?
The court doesn’t yet.
There’s an African American: Clarence Thomas. A Hispanic: Sonia Sotomayor.Asians? Any Asian Americans of any stripe?Zero. None. There has never been an Asian American on the Supreme Court. Ever.
Here’s the killer diversity fact to remember: Of 116 Supreme Court Justices, only six were not white men in more than 230 years of the court, according to CNN.
Diversity? SCOTUS? NOTUS. Or simply, Not Us.
At least, not yet.
But here’s something that could be helpful. In a show of solidarity, instead of a “short list” of all African American women, why not show the full range of qualified legal talent from all BIPOC communities?
Let Biden make his own private short-short list. It will be known soon enough. He said he’ll consult Republicans and have a name by the end of February. In the meantime, Biden should let the public in on the generation of diverse legal minds waiting for the gavel.
And yes, there’s more Asian American talent than anyone knows.
On my “Emil Amok’s Takeout,” (E.231), the micro-talk show of the AAPI, I mentioned a name that came up after canvassing some legal eagles.
The name? Neal Katyal. Other names came up, such as federal appellate judges Denny Chin and Lucy Koh. All of them Democrats. But Katyal, the son of Indian immigrants has a special edge. He’s argued before the Supremes more than any other BIPOC lawyer, according to the ABA Journal.
And there he was on the eve of the official Breyer announcement serving as a legal commentator on MSNBC’s “Last Word with Lawrence O’Donnell.”
Katyal praised Breyer, for whom he clerked after graduating from Yale Law. Breyer was “brilliant and humble at the same time,” said Katyal. “Fundamentally decent, and also brilliant, and he was a fighter.”
A fighter for all the things that are endangered now like reproductive rights, voting rights, environmental protections, affordable health care. Said Katyal: “Justice Breyer led the fight for ordinary Americans.”
Frankly, I have a soft spot in my heart for Breyer. We graduated from the same San Francisco high school, Lowell.
So how would the Breyer legacy continue, asked O’Donnell.
And this is where Katyal said the magic phrase.“I think we have to take, the president has to take the time and make the right choice,” Kaytal said. “And you can’t be looking for patronage or reward of political, you know, or politics or something like that.”
Can’t be looking for patronage? Nor political reward? Does that mean forgetting about things like a campaign “pledge”?
“You’ve got to get someone who knows what the Supreme Court game is, who can go toe-to-toe with Justice Alito, with Justice Kavanaugh, etc. And you know, as someone who practices in the court all the time, I can tell you that the more Democratic-leaning or liberal- or progressive-leaning side is not as represented at the court, and we need someone who can fight and who knows how to talk to other people.”
OK, Katyal did go on to praise both aforementioned African American women, whom he knows well.
But I thought when I heard him, he was describing himself. He’d be a good choice.
So far, however, Biden is holding to his pledge of an African American woman. It was a pledge made when Biden was under duress. His campaign was floundering, and he needed a win in the South Carolina primary. He went to Rep. James Clyburn in that state, and Clyburn delivered. That’s politics.
So here’s Biden coming through on a promise. The lesson? When will someone on the next campaign ask a candidate if they will pledge to appoint an Asian American? A Filipino American?
Because there has not been one on the high court ever.
The need to diversify the Supreme Court is real. Replacing Breyer does nothing to help rebalance the 6-3 conservative tilt And it doesn’t do enough for diversity. We’re still at zero AAPI.
To remedy the broad diversity issue, there should be more serious discussion about increasing the number of SCOTUS members. Nine may be too few. Why not 11? 13 the sweet spot? 15 too many? A new court is needed and why not? The talent is out there that not only reflects a new America, but a true sense of justice in this country.
EMIL GUILLERMO is a journalist and commentator. His “Emil Amok’s Takeout” can be heard live @2p Pacific on Facebook @emilguillermo.media, on the Emil Guillermo Channel on YouTube, and on Twitter @emilamok. Recordings on www.amok.com