Judge Susan Mollway
Senior U.S. District Judge Susan Oki Mollway of the U.S. District Court for the District of Hawaii, the first Asian woman ever appointed to a lifetime position on the federal bench, recently published her first book, The First Fifteen: How Asian American Women Became Federal Judges. The book began as Judge Mollway’s thesis for her Duke Law’s Master of Judicial Studies LL.M. degree and was later recast as a book detailing the often arduous process by which 15 trailblazing Asian American women became federal judges appointed under Article III of the Constitution.
Judge Mollway is a 2020 graduate of Duke Law’s Master of Judicial Studies program, which welcomes a diverse class of sitting judges to Duke every two years. In addition to undertaking a rigorous slate of courses that explore judicial institutions, judicial behavior, and judicial decision-making, the judges must conduct original research and write theses in order to earn their degrees. Many of those papers have been published in academic journals and law journals; a few have evolved into books. All have contributed greatly to a now-growing body of scholarship examining the work of judging.
Here, Judge Mollway (LLM Class of 2020) discusses the process of developing and publishing The First Fifteen.
Bolch Judicial Institute (BJI): It’s very exciting to see a Duke Master of Judicial Studies LLM thesis project take on this kind of a life and become a book. Congratulations! How did this idea come to you? And when did you realize your thesis would become a book?
First, I felt so lucky to be in the LLM program in Judicial Studies at Duke. I’m very grateful to the Bolch Institute for including me in the program. I had not thought about writing about Asian women becoming federal judges before I was in this program. As you know, the thesis is a requirement of the LLM program. We had to let our advisors know what thesis ideas we had, and the ideas had to be approved. I sent my idea in, and then we had to present it to our classmates who could ask questions, challenge us, and offer suggestions. One of my professors was Mitu Gulati.* He became my thesis advisor and was extremely helpful, very encouraging, guided me through the process, and made sure I finished on time. It was Mitu who first said, “You know what? You’re going to write a book.” I pooh-poohed him. I said, “I just want to get my degree; writing a book is a bigger task than I can take on, so don’t even talk to me about that.”
It was a real learning process for me. I’m a lawyer and litigator by background, but questioning for academic writing was clearly not in my background. I was not a social scientist or a researcher. I was an English major. I proceeded gingerly as I went through the process to interview people for my project. I had to go through the Institutional Review Board (IRB) at Duke because there is a protocol on interviewing people for academic study. I had never heard of such a thing. I came to understand that every academic institution has this, and you have to comply. It was also part of my learning process.
When the thesis was done, I remembered what Mitu had said. At that point, I didn’t feel so pressured, and he gave me some suggestions, so I sent it out. The first publisher said, “No. This is not the kind of project that we specialize in.” I came to understand that was a nice way just to say no. I then sent it out to a number of publishers telling them, “I am sending this out to a number of you.” And one of them contacted me right away. That was Rutgers University Press. They said, “Can you not accept with another publisher quite yet? We’re going to rush consideration of your manuscript.” They proposed a contract, which then started the editorial process.
*Ed. Note: Mitu Gulati is now the John V. Ray Research Professor of Law at the University of Virginia.
BJI: How would you describe the thesis process to a future LLM student? How did it go for you?
I knew that the most interesting part of what I was going to write would involve my interviewing people. And what I had chosen as my topic was something that, of course, I was interested in since I’m part of the group I was going to write about. I knew a lot of the people that I wanted to write about, and at the same time, I knew that wasn’t enough for a thesis. I needed to give context, and that meant I needed to do research. I also needed to know what was out there already in the scholarly literature.
My thesis adviser had suggested some things to read at the start, not specific to my topic, but just to give me an idea of how other people had memorialized their interview information. That was helpful. I just read everything he suggested, and it was good background.
Once I started interviewing the judges, I discovered things I hadn’t expected to be problematic. I had not expected to get so much reluctance from my interviewees. They were like me, they were Asian women, they knew I was a judge, and I thought there would be a level of trust, and that they would probably all be willing to agree. That didn’t happen; they expressed various levels of concern. Some of them unhesitatingly opted in, but more than I expected were hesitant. But that also guided me in the way I interviewed.
BJI: You write about patterns that emerged among the judges’ stories and things that many of the interviewees had in common, particularly having an immigrant parent or an immigration story. Can you tell us more about that?
It should have been something I expected, but I had not realized that most of the people in my small group of 15 judges had parents who had been immigrants. As I chronicled this and became increasingly aware of that factor, I saw that that had had a huge impact on them, especially if their parents came without good English language skills to the United States. Then, as children, these now-judges found themselves better able to navigate through American society because of their English language skills than their parents were. They had the experience of having to be helpmates, even as young children, to these authority figures in their family who felt vulnerable in society. That motivated many of them to make sure that they had backgrounds that would allow them to be heard. Becoming a lawyer was one such path, and then becoming a judge gave them an even greater voice.
I will say that a more generalized pattern that I had anticipated is a pattern that we see in women at large — not just Asian women, though it may be more prominent among Asian women — that these women often sought outside validation. Many women, not all, do not automatically view themselves as worthy of important positions. They do not wake up in the morning, see a job opportunity and say, “Wow, they should pick me.” Instead, what I saw repeatedly was that outside people, others around the women, suggested to them or planted the seed in their minds to think about seeking a job opportunity.
That is not what we should be seeing in 2021, but it is a reality that women are less quick to recognize their value. These women all knew they were good lawyers; you don’t apply for anything if you think that you’re at the bottom of the barrel, but it’s still a relative analysis. “Am I going to seem good enough? Am I going to stand out enough? Can I shine above these other great candidates?” My theory, which somebody else can research, is that you might not find as much hesitancy to put oneself forward among men. In fact, the women I spoke to recognized it, and they criticized it in themselves. They urged the next generation of judicial candidates not to do that to themselves — not to, as some of the women put it, step in their own way.
BJI: You also mentioned a sense of determination that many of these women had in common. Can you talk about that?
Karen Gren Scholer’s husband called her the “Susan Lucci” of the federal judiciary because she applied so many times but didn’t give up. That says a lot about her determination to get through the process. A lot of us had bumps along the way. Sometimes bumps along the way just make you take a different path. I saw that the women kept going. When you seek a federal judgeship, it’s a huge exposure of yourself within your own legal community. You will be talked about and analyzed. You have to be prepared to accept the criticism and to respond to it if you can. Once you decide to put yourself out there and make yourself that vulnerable, you might as well keep going, and they did.
That happened to me. I had a very difficult time getting confirmed. I was in private practice, and when you are a pending nominee for too long, the number of clients who are willing to hire you paradoxically shrinks. You might think it should expand because you have this prestigious nomination, but people paid me to represent them. If they invested money in me and I spent lots of their money preparing a case, they didn’t want to have to pay a new lawyer if I did get confirmed.
It is also quite difficult to be pending for so long over something that the candidate cannot change, such as something you have already done. It’s part of your history. You can’t change it. You can’t go back and entirely undo something, although I will say that the matter that gave rise to a problem for me was not something I would have wanted to undo. I was scrutinized over having been on Hawai’i’s American Civil Liberties Union Board. Hawai’i at the time was front and center in the movement to make same-sex marriage legal. In the ’90s that was a hot-button issue. I got lots of scrutiny because of my position with an organization that supported people seeking to be allowed to have same-sex marriage recognized by the State of Hawaii.
It was an unusually long confirmation process. I got used to reading articles about judicial confirmations and seeing a footnote with my name in it about how long I had been pending. At the same time, I prepared myself — it might not happen, and that’s okay. I can’t count the number of times that I practiced my speech. “Thank you very much for the honor of being nominated, that alone was an honor, and I’ll withdraw if you have another candidate in mind.” I went over that speech multiple times.
BJI: Did you go over your speech about being delighted to have been nominated and confirmed? Did you allow yourself that hope and expectation?
No. I never felt entitled to this wonderful job that I now have. I never really “counted my chickens.” When the full Senate finally votes on your confirmation, there is nothing the candidate can do. The senators go down and cast their votes, and you are probably at home. I was in Honolulu, and I had C-SPAN on my television, because this was in the ’90s. There was an appliance technician in my kitchen, and he’s working away. I’m watching television, and he said to me, “Oh, they’re talking about you.” I said, “Yeah, they are talking about me.”
I had a little notepad, and I was making tally marks for the yeas and the nays. Even when I knew that I had enough votes, I didn’t believe it until I got a telephone call from Senator Inouye’s staff telling me, “Congratulations.” That afternoon I decided to go into my law firm office. I had a nice office, and the furniture had all been moved around as if the office was now vacant. I said, “What is this?” My partners thought this was hilarious, and they said, “We’re pushing you out the door. You finally got confirmed.” They thought it was funny, because they’d also been wondering, “Are you going to continue to be among us or not?”
BJI: Do you think people don’t apply to federal judgeships because they are scared of this process?
I’m sure that people are. The process itself is very daunting; you’re very vulnerable when you apply. It’s a huge national exposure, and you do not know the outcome. When I was a nominee I thought, “What, the Senator from North Carolina has put a hold on little me from Hawai’i? Why does he care about me?” Things like that happen when it’s a national process. It is hard to foresee all the things that you may have to face.
There are a couple of other things that probably affect people’s decisions. Economics is one. There are lots of legal jobs where you will make more money than as a federal judge. That was true of me. You have to anticipate that the job is going to be so interesting and so much fun that it will be worth it. Most federal judges find their jobs to be dream jobs. I constantly think to myself, “How do other people maintain their energy level when they don’t have all of the exciting proceedings and issues that I have in my job?” So much of what I work on is incredibly interesting.
BJI: You’ve focused your book on the experiences of Asian American women judges. Some people say that judges are just calling balls and strikes, and that interpreting the law is a specific and circumscribed role that shouldn’t be influenced by perspective, or experience, or where you came from. If that is the case, why is diversity on the bench important?
I think that no one can claim to be totally unaffected by one’s background. I include in my use of the word background not only whether one is a certain gender or non-binary, but also your race, your career path, your family, and all of those influences on you. You cannot claim that your experiences have left no mark on the way that you think. I often feel that people make a mistake in thinking there is some ideal person whose total impartiality is the model that all judges should aspire. Often that model is of a white, male jurist. We may see a motion to recuse a judge because of the judge’s race. That doesn’t happen if the judge is white, but it has happened to Asian judges. When there are abortion cases, then a woman judge may receive some accusation that, “You might get pregnant and want an abortion. How can you be impartial?” Why is that? Unless you’re in some hypothetical white man’s position, you are deemed to carry an inescapable bias. Everyone is affected by background, and we shouldn’t pretend that this hypothetical white male jurist isn’t.
I feel that the legitimacy of the judiciary is heightened when the judiciary looks like the community in which the judiciary operates. You can see that in the stories that I’ve told. Jackie Nguyen told the story of seeing Asian judges that she appeared before when she was a practicing attorney and thinking, “I’m so proud and this is wonderful.” I feel it when I get a case, and all the attorneys in the case happen to be women. It happens nowadays and that’s a joy, but it doesn’t make me automatically accept everything that a woman advocate is saying. What it makes me feel is the legal system is becoming more inclusive, and it is a good thing to serve an inclusive community.
Federal judges in my district are accustomed to seeing cases involving the rights of Native Hawai’ians. I had a case some years back involving a dispute about how to allocate certain benefits among different groups of Native Hawai’ians; it related to blood quantum issues. I happened to have, at that time, a law clerk who was Native Hawai’ian with a high blood quantum of Native Hawai’ian ancestry. I got a motion from one of the attorneys who said, “I’m bringing a motion that the law clerk not work on this case.” I said, “Okay, we’re going to do a really good order on this motion, denying it.” I filed an order saying that in this courthouse work is not assigned based on one’s blood quantum of anything. If this law clerk or her immediate family had had a personal interest in the outcome of this case, that would have been one thing, but this dispute was something that involved an individual opting in and applying for certain benefits. My law clerk and my law clerk’s family had not sought these benefits. There was no personal interest in this case and her ancestry was not something that I was willing to let counsel rely on.
I denied the motion, and I ruled on the merits of this dispute. It was appealed, but the recusal portion I had ruled on was not appealed. They gave up on that point. But judges themselves have had that motion to recuse, too. I think most judges will feel “Okay, I took on this job and if you want to come at me, I’ll deal with it.” But when your staff faces that, then you feel, “Wait a minute. You’ve got to go through me to get to my staff.” I think most judges feel that way about their families. I’ve had numerous threats against my life, as have most judges who have been judges long enough, some of them serious enough that people were charged with having threatened me. I have taken that in stride. A threat against my family members would, I’m sure, have a huge impact on me because they didn’t sign on for it. It’s the same attitude I take when people come after my staff.
BJI: What is your hope for this book and its life out in the world? What do you hope this contributes to the world, the judiciary, and prospective judges?
I know this is not the book that everybody off the street is going to think, “That has to be my first choice of reading material this weekend.” But I hope it helps people to go for it! I hope some people are encouraged to come forward and apply. I hope they see there are different paths to judgeships, and they may have something to offer. I hope it inspires them to think, “Okay, I can do this.” And to make themselves vulnerable, put their names into the mix, and avoid being deterred from seeking these wonderful jobs.