Today the Senate will be holding the first hearing on President Biden’s initial nominations for federal court judges. There has been a lot of buzz since Biden announced his first batch of eleven judicial nominees to federal courts. Of the eleven, nine are women and seven are women of color, including the first Asian American woman to serve on the District of D.C.
This is a big step in diversifying the overwhelmingly white and male federal bench, which was exacerbated by former President Trump’s judicial nominees. As we continue with new, diverse nominees, it is also important that we don’t get caught up in celebrating picks that are diverse in gender and racial identity for the sake of diversity without evidence that the nominees will recognize our rights once on the bench.
We bring this up because there are plenty of examples of people who share our gender and/or racial identities who were nominated to positions of power but despite looking like us, don’t live like us or use their power to address the needs of our families and our communities.
Tony Pham, the previous Acting Director of Immigration and Customs Enforcement (ICE) appointed by President Trump, consistently talked about his background as a Vietnamese refugee while overseeing inhumane detention and deportation programs. He advanced the false dichotomy of good vs. bad immigrants to justify deportation and cruel treatment of immigrants without documentation or recourse.
Similarly, Judge James Ho once lamented that as an Asian American college applicant in high school, he was limited by affirmative action, a set of policies that attempt to increase opportunities for historically underrepresented groups. Despite his attempt to pit Asian Americans against other communities of color, an overwhelming majority of Asian Americans, 70 percent, support affirmative action and many benefit from it.
And Judge Neomi Rao, an Asian American woman, stated that she didn’t believe racism existed and victim-blamed women for being sexually assaulted. In addition to how false and horrible victim blaming a survivor is, statistics demonstrate sexual assault is a common occurrence among AAPI women. Her statements go against our community and serve to delegitimize their experiences.
These people brought racial diversity to high levels of our country’s leadership. But their actions, before and after achieving their leadership, reinforced the status quo.
The legal system was not built for us or with us in mind. And the makeup of the courts reflect it. Before being nominated to the bench, judges usually built their careers as former prosecutors and/or corporate lawyers. They are also overwhelmingly white men, many from wealthier backgrounds and assumed to be neutral decision makers, as if they would suddenly shed their former lives and the black robes they put on would erase their memories and ideology. Our society deemed these few very privileged white men to be the normal neutral standpoint upon which everything else would be judged.
Judges make decisions based on their ideology. Judges also bring with them their own experiences with the rule of law, observations about how the law has played out on communities, and their understanding of who is primarily affected by certain laws. Most importantly, judges bring their record of previous decisions — and how they ruled and applied the law should be the primary test through which communities determine whether to support them.
At a time when states are considering or passing laws that ban abortion at six weeks, before most people know they’re pregnant, and ban trans youth from playing sports, we need good judges who will recognize our rights, thus empowering and protecting our communities. Our judges should not simply check an identity box but should bring an understanding of intersectionality to their work and have demonstrated in their careers that they understand and will fight to uphold our human rights.
We need judges who understand how discrimination plays out in the workplace, how someone may face barriers to obtaining an abortion based on their financial circumstances, and the ways deportation rips apart families. So that finally, our unjust justice system, that was never built for us, can work for us.
Da Hae Kim is the Legal Advocacy and Judicial Strategy Manager at NAPAWF.