For the National Asian Pacific American Bar Association, Elena Kagan’s nomination to the Supreme Court presents an opportunity to make history.
No Asian or Pacific American has ever served in any of the Justice Department’s top four slots — Attorney General, Deputy Attorney General, Associate Attorney General or Solicitor General — but if Kagan is confirmed, odds are good that will change.
Three of the four candidates often mentioned as Kagan’s possible replacement as Solicitor General– Preeta Bansal, Neal Katyal and Sri Srinivasan — are South Asian Americans, and all have been involved with NAPABA.
“This is an exciting time for us,” said John Yang, who co-chairs the NAPABA’s judiciary committee. ”This obviously would be at the highest level any Asian American has ever attained in the Justice Department.”
Katyal, acting Solicitor General (who had been Principal Deputy Solicitor General since the start of the administration), and Donald Verrilli Jr., senior counsel to President Barack Obama, are thought to be the top contenders for the post, though no decision has been made.
Yang’s group has aggressively pushed Asian and Pacific Americans for key legal posts in the Obama administration, as well as federal judgeships. In some cases, the group has recruited and helped shepherd nominees through the confirmation process. (On the federal bench, there are nine Asian or Pacific American district judges and one appellate judge.)
Sonjui Kumar, president of the North American South Asian Bar Association, which also lends its resources to cultivating judges and U.S. attorneys, said South Asian Americans in the Obama administration number about 55, many of them lawyers.
Kumar’s group is evidence of that. When NASABA began, roughly a decade ago, chapters sprang up in major cities — “in all the expected places,” as Kumar put it — but there are now 27 regional bar associations scattered around the county.
While they hold no Senate-confirmed positions in the Justice Department’s Washington headquarters, Asian Pacific Americans are represented in the field by U.S. Attorneys Preet Bharara in New York’s Southern District, Florence Nakakuni in Hawaii and Alicia G. Limtiaco in Guam and the Northern Mariana Islands.
In the Clinton and Bush administrations, Asian Pacific Americans served as Assistant Attorneys General, the department’s middle managers. Bill Lan Lee ran the Civil Rights Division from 1997 to 2001 but was never confirmed by the Senate, Viet Dinh oversaw the department’s Office of Legal Policy from 2001 to 2003, and Wan Kim led the Civil Rights Division from 2005 to 2007.
The NAPABA has been more active in judicial nominations than executive nominations, but both are stepping stones — if not exactly prerequisites – to fulfilling the group’s highest ambition. ”There are obviously implications for a future Asian Pacific American Supreme Court justice, which we hope is very close in the coming,” Yang said.
Kagan is the first Solicitor General to be nominated to the Supreme Court since the late Justice Thurgood Marshall, for whom she clerked.
Bansal was a finalist for the Solicitor General’s post at the start of the Obama administration, when Attorney General Eric Holder was considering Kagan as his Deputy Attorney General. Bansal, former New York Solicitor General and partner at Skadden, Arps, Slate, Meagher & Flom LLP, was instead tapped as general counsel to the Office of Management and Budget.
Judith Kaye, of counsel at Skadden and former chief judge of the New York Court of Appeals, called Bansal “one of New York’s big stars.” As Solicitor General in New York, Bansal enjoyed a strong relationship with the court of appeals, Kaye said, adding that Bansal often came to her with ideas for improving the New York court system.
“She’s an excellent manager,” Kaye said. “I’ve seen her footprints at Skadden, too. She has a group of great fans here.”
With his appointment as Principal Deputy Solicitor General, Katyal, who successful argued the landmark detainee case Hamdan v. Rumsfeld, became the highest-ranking Asian American at Main Justice.
Katyal, who has a strong relationship with Holder, has handled some of the office’s toughest assignments, including successfully arguing that detainees in Afghanistan should not be able to challenge their confinement in U.S. courts as their counterparts in Guantanamo Bay can — a deeply unpopular position among human rights advocates.
“He has hit the ball out of the park in terms of gravitas and responsibility,” said Tom Goldstein, a partner at Akin Gump Strauss Hauer & Feld LLP and founder of SCOTUSblog.
Goldstein, who met Katyal in high school when the two were on debate teams, pointed to Katyal’s reception in the office as evidence of his qualifications. It was telling, he said, that Katyal settled in so comfortably with the office’s experienced deputies – Michael Dreeben, Edwin Kneedler, Malcolm Stewart — whom Goldstein described as “icons of the Supreme Court bar.
Srinivasan, a partner at O’Melveny & Myers LLP, has argued 17 cases before the Supreme Court, including former Enron Corp. executive Jeffrey Skilling’s challenge this term to the “honest services” fraud statute, one of the Justice Department’s favorite anti-corruption tools.
He worked stints in the Solicitor General’s office in the Clinton and Bush administrations, taking a break in between to help former Solicitor General Walter Dellinger launch O’Melveny & Myers’ appellate group.
Dellinger has called Srinivasan the smartest person he ever worked with at the SG’s office, high praise from one of the nation’s top advocates.
Of the three candidates, he brings the most breadth of experience before the high court, having argued matters related to federal preemption, federal court jurisdiction, banking law, federal contracting law, administrative law, criminal law and procedure, immigration law and education law.