President Obama has gone out of his way to “diversify” the federal bench with his spate of nominations of various minorities chief of which was his successful seating of the “wise Latina,’ Sonia Sotomayor, on the Supreme Court. Obama’s nominees* for 10 district court openings include four African-Americans, three Asian-Americans, one Latino and four women. One of those nominees, San Francisco U.S. Magistrate Judge Edward Chen, received a favorable vote in the Senate Judiciary Committee in Washington today.
So what sort of judge is Edward Chen? Well, for one, the left-wing American Bar Association rated Chen a “well qualified” nominee and many of his associates at the ACLU speak highly of him. As an ACLU lawyer, Chen was known for opposing English-only policies and for pushing discriminatory affirmative action ideals. He even came to the aid of gang members in one case. Chen was quite the ACLU activist between 1979 and 2001.
His ACLU history would suffice to make many wary of him, of course. But for a segment of America, working for the ACLU is not a disqualifier. So in order to judge Edward Chen one must look at his past. Discovering what Judge Chen thinks of the country upon which he apparently assumes to sit in judgment is a telling exercise. Sadly, it seems he has quite a low opinion of the nation that he will be serving.
One hint at Judge Chen’s feelings about our nation can be seen from his appearance at the 2005 graduation ceremony at the Hastings Public Interest Law Foundation. There, Chen wondered aloud if American patriotism was justified. Chen told the crowd of his, “feelings of ambivalence and cynicism when confronted with appeals to patriotism – sometimes I cannot help but feel that there are too much [sic] injustice and too many inequalities that prevent far too many Americans from enjoying the beauty extolled in that anthem.” Apparently, Chen feels that America is too racist to justify anyone feeling patriotism for her.
In fact, racism seems to be one of Chen’s major concerns and he sees it everywhere. Immediately after the attacks on 9, 11, 2001 Chen’s first thoughts were about racism but not that of the Arabs that sent over three thousand Americans to their deaths. No, as soon as Chen learned of the attacks of 9/11 Chen’s first worry was that white Americans were going to use their racism to justify racist attacks on Muslims and anyone else that got in their way.
Only ten days after 9/11 occurred, Chen remarked that he imagined that America would revert to the “irresistible forces of racism, nativism and scapegoating” of the past and begin systematic oppression of American Muslims. Later he likened America’s post 9/11 military and security policies to the climate that led up to Japanese interment during WWII. In fact, he seemed to imagine that “a thousand Americans” were being swept up and held in secret prisons right after 9/11.
In a speech given at the Operation Protect and Defend dinner on May 4, 2006, Judge Chen referred to “secret surveillance of Americans without a judicial warrant, secret no fly lists, [and] secret detention of nearly a thousand American residents held without charges.” Naturally, he offered no proof of this wholesale but secret detention of Americans.
Chen also saw racism in the aftermath of Hurricane Katrina in 2005, as well. Chen charged that the reason that New Orleans had so much trouble after the storms passed was because the inhabitants of the Crescent City were black. “Institutionalized racism” caused the federal government’s supposedly slow response to the crisis there, Chen said. At the Diversity Celebration of the California State Bar Convention in 2005, Chen asked the audience, “Would the response have been different had the majority of victims been white and middle class rather than poor and black? Would the response have been quicker had it been Kennebunkport instead of New Orleans?”
Racism again came to vex Chen’s overactive imagination in the aftermath of the Virginia Tech shootings perpetrated by an Asian man. Chen’s fevered imagination dreamed up images of Asian men being discriminated against all across the country because of the actions of one mentally unstable nut. In comments before the Asian Pacific Americans in Higher Education Conference, Chen worried that Asians would be the “subject of a racial backlash, victimized” by hate crime.
It is apparent that Edward Chen does not find much to celebrate about the United States. The whole country is so filled with “injustice” and “inequalities” that only a crusading judge can right the wrongs.
Now, what of his judicial standards? What sort of philosophy does Chen employ on the bench? Is it a strict standard of reading at law, or is he one of those sorts of judicial activists that uses the law to spread his own particular philosophy of social justice? Sadly, it appears to be the later. At least one can be excused to think this from a 2003 article Chen wrote entitled “The Judiciary, Diversity, and Justice For All” published in the California Law Review.
“…diversity enhances the quality of decision-making. . . . judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences. Such experiences inform assumptions that affect legal decisions. At trial and in evidentiary hearings, judges have to assess the credibility of witnesses. A witness’ testimony may seem more credible if it is consistent with the judge’s knowledge or experience, and, conversely, less credible if it remains outside the judge’s experience. . . . Simply put, a judge’s life experiences affect the willingness to credit testimony or understand the human impact of legal rules upon which the judge must decide. These determinations require a judge to draw upon something that is not found in the case reports that line the walls of our chambers. Rather judges draw upon the breadth and depth of their own life experience, upon the knowledge and understanding of people, and of human nature. And inevitably, one’s ethnic and racial background contributes to those life experiences.”
Of course, this attitude seems to register well with Obama’s views of “judicial empathy.” In this view the law is heavily influenced by the judge’s “feelings” and those feelings are at least as important as the written law. This also matches well with Sotomayor’s ideas that her status as a Latina made her more qualified than an old white man to be a judge. For Obama’s judges, experiences and feelings trump the Constitution and the law and these experiences and feelings should be used as a basis to adjudicate the cases that come before them.
In Chen’s case we can see that the main influence on his judicial philosophy is an inordinate fear of racism. He sees it under his bed, in his closet, in the faces of everyone he meets. With this penchant in mind, can Chen honestly, dispassionately, and seriously serve effectively as a federal judge? One cannot help but wonder if his preoccupation with envisioning racism in every situation makes Judge Chen ill-suited for the federal bench where a dispassionate mien is required. It is easy to see that his constant resorting to charges of racism will likely color every decision he delivers.
Judge Chen will bring “diversity” to the bench as President Obama wants certainly. But will he also bring divisiveness and a desire to get even with all the racism he sees where ever he looks? His record hints that he just might.
*The 10 nominees mentioned above are as follows:
Two African-American circuit nominees, highly regarded sitting district judges Andre Davis and Joseph Greenaway, earned well-qualified American Bar Association ratings, the organization’s highest ranking. The third, well-respected Rhode Island Superior Court Associate Justice O. Rogeriee Thompson, was nominated last week and has yet to receive an ABA ranking. The four Asian-American nominees would increase by 36% the number of Asian-American judges. They include Southern District of New York Judge Denny Chin, who would be the first Asian-American judge on the U.S. Court of Appeals for the 2d Circuit; California Superior Court Judge Jacqueline Nguyen, who would be the first Vietnamese-American district judge; and Magistrate Judge Edward Chen, who would be the first Asian-American member of the Northern District of California. Both Nguyen and Chen earned well-qualified ABA ratings, while the ABA has not yet ranked Chin.