Biden Judicial Pick Won't Tell Ted Cruz Whether Racial Discrimination Is Wrong (February 1, 2022)

Sen. Ted Cruz, R-Texas, asked President Joe Biden’s judicial nominee a question that should have been easy: “Is racial discrimination wrong?” Judge Kenly Kiya Kato wouldn’t give him a yes or no.

The video above shows the exchange at the Senate Judiciary Committee’s Feb. 1, 2022, hearing on Kato’s nomination to the U.S. District Court for the Central District of California. A printed transcript of the hearing was not available to HYGO News, so quotes are as reported by Fox News and NBC News, which covered the hearing [1][2].

”Is Racial Discrimination Wrong?”

Kato, a federal magistrate judge, answered Cruz’s opening question with a statement about the law. “Senator, our Constitution prohibits discrimination on the basis of race,” she said [1].

“Let me ask you again, is racial discrimination wrong?” Cruz asked [1].

Kato replied that as a judge she does not deal with “issues of morality.” When Cruz asked whether she had any view on whether discrimination is “right or wrong,” she again declined, saying “that is an issue that is frequently litigated before the courts,” Fox News reported [1].

“OK, so why does the Constitution prohibit racial discrimination?” Cruz tried next.

“Senator, I think it’s part of the Constitution and this nation’s history of aiming for equal justice and treating people regardless of any protected class status equally and fairly,” Kato said.

“So discriminating based on race violates, I think you just said, our Constitution’s history of aiming for justice,” Cruz responded. “Is that a fair characterization?” Kato again would not answer directly, saying only that racial discrimination “under the law” is prohibited [1].

”Sufficiently Woke”

Cruz then turned to something Kato had written as a 23-year-old student at Harvard Law School: a 1995 book review she co-authored. Part of the review said neoconservative Asian Americans “internalize the dialogue of oppressors, believing in the values of the status quo and condemning the activism of their group,” NBC News reported [2].

Sen. Chuck Grassley, R-Iowa, had already asked whether she still believed that. Kato said she “had no idea what we were trying to convey” [2].

Cruz put it in plainer terms. He said the review conveyed that “to be sufficiently woke, an Asian American must support policies that discriminate against Asian Americans” [2].

Harvard on Trial

Cruz and Kato attended Harvard Law School at the same time, and Cruz tied her writing to the lawsuit then pending against Harvard, which accused the university of discriminating against Asian American applicants [1]. Kato declined to comment when Cruz asked whether she was concerned about discrimination against Asians on college campuses across the country [1]. She also declined to discuss the case itself because it was pending [3].

Democrats Rush to Her Defense

Democrats said the questions went too far. Sen. Mazie Hirono, D-Hawaii, called them “uncalled for,” noting that Kato’s parents had been held as children in internment camps with other Japanese Americans during World War II. “Of course she understands how terrible racial discrimination is,” Hirono said [3].

Kato spoke about that family history in her testimony. “Hearing those stories of my family’s first-hand experiences impressed upon me from a very young age the critical importance of securing our constitutional rights for everyone,” she said [2].

Biden had touted her as a nominee who “would be the third AAPI woman judge to ever serve in the Central District of California,” Fox News noted [1]. The National Asian Pacific American Bar Association urged quick confirmation, saying only 30 of the country’s 673 district court judges were Asian American and Pacific Islander [2].

By the Numbers

1995: the year of the law school book review Republicans pressed her on [2].
11-11: the committee’s tie vote on her nomination in March 2022, which kept it from being reported favorably [3][4].
51-46: the Senate vote that finally confirmed her on Nov. 7, 2023 [5].
6: justices in the majority when the Supreme Court struck down race-conscious admissions at Harvard and the University of North Carolina in 2023 [6].
11.1%: the decrease in Asian Americans admitted to Harvard that the First Circuit attributed to the school’s use of race, as the Supreme Court’s majority noted [6].
12.8% vs. 12.7%: the admission chances, cited in the majority opinion from the challengers’ brief, of an African American applicant in Harvard’s fourth-lowest academic decile versus an Asian American applicant in the top decile [6].

What Happened Next

Her first nomination stalled. The Judiciary Committee split 11-11 on March 10, 2022, so it failed to report her nomination favorably, and the Senate would have had to vote to discharge it before any floor action [3][4]. The nomination was returned to the president on Jan. 3, 2023, at the end of the 117th Congress [4].

She was confirmed the second time around. In the next Congress, the Senate confirmed Kato to the Central District of California on Nov. 7, 2023, by a vote of 51-46 [5].

The Supreme Court settled the Harvard case. On June 29, 2023, the court ruled that Harvard’s and UNC’s admissions programs violate the Equal Protection Clause. “Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the majority, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justice Ketanji Brown Jackson took no part in the Harvard case [6].

Cruz got the last word. “Today, the Supreme Court upheld the 14th Amendment rights of Asian-Americans and ruled that Harvard and the University of North Carolina’s explicit and egregious policies of racially discriminating against Asian-Americans and other students are unconstitutional,” Cruz said in a statement that day. “Today the Supreme Court has ended our country’s long and failed experiment with racial quotas and government-sanctioned racial discrimination, and, in the process, restored some measure of objectivity and fairness to the college admissions process. This is a great day for all Americans” [7]. Cruz had led an amicus brief in the cases on behalf of fellow senators [7].

For more of how Republicans questioned Biden’s judicial picks, see Sen. Josh Hawley’s exchange with nominee Michael Delaney.