Emil Guillermo: There's never been an Asian American on the U.S. Supreme Court

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Neal Katyal is a lawyer and a former Acting U.S. Solicitor General. According to the ABA Journal, he has argued more cases before the Supreme Court than any minority lawyer in American history, breaking the record of former Justice Thurgood Marshall.

In other words, Katyal knows how to talk to Supreme Court justices.

Don’t you think it’s time he sat on the bench with them?

On the day when much of the nation was abuzz about the retirement of Justice Stephen Breyer, most of the speculation was on which African American woman would take his place.

The assumption was that since Joe Biden made a campaign promise to appoint an African American woman to the high court, it was all a done deal.

Perhaps it is, but the media seemed all too willing to play the game, mentioning as many as six top African American women as Breyer replacements. All young, smart, and most importantly, qualified.

The top name was 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.

Another name is Leondra Reid Kruger, 45, a Justice on the Supreme Court of California since 2015, a graduate of Harvard College and Yale Law. She’s of mixed race heritage with a Jamaican immigrant mother and a late American Jewish father. She’s also a first: The first to give birth while on the state’s high court.

Kruger and Jackson both have impressive credentials, as do all on the short list of African American women.

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.

An 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 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. But 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 Wednesday afternoon “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. But not like Katyal’s. As I mentioned, he’s argued before the Supremes more than any other BIPOC lawyer.

And there he was last night 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.

Biden may yet pick an African American woman. But the need to diversify the Supreme Court is real. Replacing Breyer does nothing for the 6-3 balance. 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 reflects a new America.

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There was a community vigil in Harlem last Friday to remember Yao Pan Ma, the 61-year-old who was beaten in April 2021 and remained in a coma until he died on Dec. 31. It was one of the more serious among the 10,000 instances of hate toward Asian Americans due to Trump scapegoating.

Also remembered was Michelle Go, the Asian American who was on a Times Square subway platform this month when she was pushed from behind onto the tracks and to her death. It was murder, not necessarily a hate crime. Still, it was a crime that sent shock waves through Asian American communities from New York to California, where Go grew up before coming east. These two deaths have only intensified the feeling of vulnerability in the Asian American community.

Politicians and activists spoke at the event. But one person was missing.

Corky Lee.

He would have been there. He was at every event, chronicling our lives through his camera lens. But his absence only reminded us of another fact.

It’s been one year since the passing of our dear friend to Covid.

I often go back and listen to a recording of a conversation we had on my podcast, “Emil Amok’s Takeout.”

At around 18 minutes into the show, Corky talks about his first photographs and how he developed what he called “photographic justice.”

It’s one of the longest conversations we ever had that didn’t involve eating at his favorite dim sum parlor.

Corky talks about his Golden Spike flash mob projects in Utah. And he talks about his late friend the Asian American historian Phil Choy, and how Choy was snubbed from speaking at the 100th celebration of the Transcontinental Railroad. It’s a surprising show of emotion from Corky.

Listen to it here. (At around 1:21:10 in the recording, he talks about recreating the Golden Spike photo, Choy, and more).

I’ll also play the segment during E.232 on Thursday. Check it out Live @2pm Pacific on Facebook, YouTube, and Twitter, or recorded on

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Emil Guillermo is an independent journalist/commentator. Updates at Follow Emil on Twitter, and like his Facebook page.

The views expressed in his blog do not necessarily represent AALDEF’s views or policies.

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