Chen, 56, named a magistrate by Bay Area federal judges in 2001, was nominated by Obama to the lifetime judicial post in August. He would become the first Asian American judge in the Northern District of California, which covers the coastal area from Monterey County to the Oregon border.

The Senate Judiciary Committee approved him by a party-line 12-7 vote in October. Republican opponents cited cases he handled as an ACLU attorney in San Francisco from 1995 to 2001, including an unsuccessful challenge to Proposition 209, the 1996 California initiative that banned government affirmative action programs based on race or gender.

Opponents also cited some of his public statements, including a 2005 speech in which he questioned whether the government’s response to Hurricane Katrina would have been quicker if most of the victims had been white and middle class rather than poor and black.

The full Senate has not voted on Chen’s confirmation. Last Thursday, the Senate returned six nominations for judicial and administration positions, including Chen’s, to Obama for reconsideration, while leaving other pending nominees to await floor votes when Congress comes back from recess next month.

The Senate action – announced by Majority Leader Harry Reid, D-Nev., after discussion with his Republican counterpart – does not amount to a rejection of the nominees but signals that they face at least some opposition. Obama must now decide whether to renominate them. Each would need another committee vote before returning to the Senate floor.

Women and ethnic minorities have long been underrepresented in the federal judiciary compared with the U.S. population. Eighty-four percent of federal judges are white. Female jurists comprise 20%. African-Americans constitute 8%. Out of the almost 1,300 sitting federal judges, a mere 11 are Asian-American and only one is a Native American. A significant percentage of the 94 federal districts has never had a jurist who is a woman or a person of color.

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.

Chen worked for the ACLU as an activist lawyer between 1979 and 2001, during which he opposed English-only policies and for pushing discriminatory affirmative action ideals, even coming to the aid of gang members during a particular case.

Mr. Chen has a self described lack of American patriotism and has repeatedly stated that he finds racism and discrimination almost everywhere he looks.
Upon hearing “America the Beautiful” at a funeral, Chen commented, “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.”

When the attacks of 9/11 happened, Chen’s first thoughts were not of concern for the victims or a sense of anger over the attacks, instead only ten days after the attacks 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.

When asked about the role of judges he said, “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…. Inevitably, one’s ethnic and racial background contributes to those life experiences.”

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.

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.

“Judge Chen combines compassion and fairness with toughness and intellect in tacking difficult issues,” said attorney Ismail J. Ramsey, who has appeared numerous times before Chen. “He has always brought a practical approach to the issues, while ensuring that the rights of all those appearing before him were honored and making certain that the community was protected.”

“Judge Chen has earned a reputation as an evenhanded jurist who is constantly mindful of the role that judges fulfill in society as keepers of the rule of law and the public trust in our system of justice,” said David Wong, president of the San Francisco Deputy Sheriffs’ Association.
representing Fred Korematsu.

Another day, another Obama nominee who doesn’t appear to love America. Another nominee who thinks the United States is inherently racist. Another nominee who thinks that judges should let their “ethnic and racial background” have an effect on how they conduct their trials. President Obama’s radicalization of American government needs to be stopped.

And talking about the role of judges, he in effect embraced the “empathy standard” that Supreme Court Justice Sonia Sotomayor was forced to denounce in her own confirmation hearings: “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…. Inevitably, one’s ethnic and racial background contributes to those life experiences.”

You get the picture. To quote and paraphrase Sen. Charles E. Schumer from another occasion, this man’s attitude “doesn’t even whisper ‘judge.’ ” Instead, it yells out that he is a biased radical willing to impose his own politics from the bench. Judge Chen should not be confirmed.