Questions Remain Around Elena Kagan and Race

by Latoya Peterson

Over the last few days, I’ve been watching with interest the discussions around Elena Kagan and race.

I need to revisit some of my Sotomayor coverage, but I am wondering about the concept of a “thin” resume – comparatively speaking, it would appear that Kagan has far less of a legal paper trail than Sotomayor, yet the idea that she is inherently unqualified seems to be from a quiet corner of the punditry, and not the echoing refrain it became for Sotomayor. But that’s neither here nor there.

The real controversy brewing is over Kagan’s record on race. The first time we heard about Kagan in the racial blogosphere was around the time of the Stephanie Grace scandal, Kagan’s name came up as the Harvard Law School Dean that did not take allegations of racism seriously. Diane Lucas, the Harvard law grad who wrote a guest post for Feministe called “The Racist Breeding Grounds of Harvard Law School” was also quoted in an article about Kagan’s track record with students. According to Lucas:

[...]Lucas says when she and other students asked Kagan to issue a formal apology, set up diversity training and hire a diversity director [after a student roast which parodied actual students with racist and sexist stereotypes] , Kagan refused. Kagan defended the parody as students’ freedom of speech. From that, Lucas concluded that Kagan shirked her responsibility to make Harvard Law School a more racially sensitive place.

As more details emerge about Kagan, it was revealed that her hiring record also reflects a certain type of trend. The New York Times explains:

In the nearly six years that Ms. Kagan was dean, from 2003 to 2009, she hired a total of 43 permanent, full-time faculty members, 32 of whom were tenured and tenured-track. Of those, 25 were white men, 6 were white women and one was an Asian-American woman. Of the other 11, 6 were white men, 2 were women and 3 were minority men (2 black and one Indian), according to a law school official.

Law school officials said the numbers did not reflect the whole story because offers were made to other minority and women scholars; some were declined and some still open. But others said the record spoke for itself.

“Kagan’s performance as dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups,” Guy-Uriel Charles, a black law professor at Duke, wrote last month in an oft-cited post.

After Kagan was selected as Obama’s next nominee, both defenders and detractors came out of the woodwork, making powerful cases based on Kagan’s record.

Randall Kennedy, Harvard Law Professor and the author of Nigger: The Strange Career of a Troublesome Word, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, Race, Crime, and the Law, and Sellout: The Politics of Racial Betrayal (the latter being written after Kennedy dealt with the reception of Nigger.) Kennedy took to the pages of the Huffington Post to defend Kagan, explaining that he has known Kagan for over 25 years – first as a student in his class on race and the law (which led him to recommend her to clerk for Thurgood Marshall), then as a colleague, then as a boss. He writes:

There has been some grousing in the media about the paucity of racial minorities hired during Kagan’s Deanship. The criticisms leveled at her are unfair.

First, it is mistaken to suggest, as some have, that the Dean of Harvard Law School is responsible for all that happens or does not happen with respect to hiring. The Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean’s blessing. At the same time, the Dean does not have the power on her own to hire someone to the faculty. To be hired, a candidate must receive at least a majority, usually a super-majority, of votes. The Dean can seek to persuade, but the Dean at Harvard Law School cannot force professors to move when it comes to faculty hiring, traditionally the most contentious arena of struggle at a famously contentious institution.

Second, Kagan was attentive to issues of race in faculty hiring. I say this on the basis of what I observed as the Chair of the Harvard Law School’s Entry Level Appointments Committee, a Committee on which, as Dean, Kagan also sat. I often agreed with her assessments of candidates but sometimes disagreed. Even when I did disagree, however, I found her judgments to be eminently sensible. She evaluated candidates carefully and generously, deploying her tough-minded independence but also paying close attention to the opinions of her colleagues.

Now, to be sure, Kagan’s number one concern was always this: will hiring a given candidate best advance the educational mission of the Harvard Law School.

Kennedy also mentions Kagan’s “commitment” to racial justice, noting:

[H]er active and enthusiastic support for the Charles Hamilton Houston and Reginald Lewis Fellowship Programs at Harvard which have served as the launching pads for numbers of highly successful racial minority legal academics. Another was her assistance in forming an ad hoc committee (on which I sat) that sought to identify promising racial minority candidates, several of whom have already visited at Harvard Law School and several of whom are slated to visit soon.

However, our friends at Colorlines are not convinced. Dom Apollon makes his position clear with the headline “Elena Kagan is No Thurgood Marshall“:

What was Kagan’s involvement in writing this dissent? And why hasn’t she chosen to more forcefully pursue the principles Marshall espoused in the years since? Somebody on Capitol Hill needs to trek over to the Library of Congress and find out what Kagan’s memos had to say on this and other cases from the 1987-1988 term.
Kagan’s loudest critics thus far have been from the left, and they’ve raised questions about racial justice. As has been well documented, her record on hiring nonwhites while serving as Harvard Law School’s dean is, shall we say, wanting.

Then there’s Kagan’s permissive stance on presidential power, which Salon’s Glenn Greenwald has loudly criticized. Her deference to executive power should stand out for those concerned with racial profiling of terrorism suspects, particularly in light of Attorney General Eric Holder’s recent statements suggesting his willingness to carve out exceptions to Miranda rights. If the ACLU has anything to do with it, a case challenging these exact assertions of executive power are likely to come before a Justice Kagan in the years to come. How will she stand?

Ultimately, Kagan’s major qualification appears to be her ability to bring a measure of peace between two sides of scholarly egos, as evidenced by her tenure as Harvard Law’s dean, where she significantly increased the number of conservative scholars on the faculty. While this was no small feat, it’s a questionable basis for Supreme Court qualification—unless, of course, you are a president still concerned more with “changing the tone” in the nation’s capital than with finding the remedies for our nation’s vast race and class disparities.

Apollon also makes an interesting aside in the piece:

Which is, ironically, why the nomination may be more vulnerable on the left than the right. If Kagan’s nomination falters, it’s likely to be because the left mobilized to force Obama’s hand in the same way those on the right forced George W. Bush’s hand on Harriet Miers—whose failed nomination led to the seating of established conservative hero Samuel Alito.

If Kagan performs as poorly in her Capitol Hill tour as Miers did—and the Congressional Black Caucus has already said it has questions for her—the left should be equally adamant that Obama replace Kagan with our own Alito-equivalent. After all, Bush appointed two true believers in Roberts and “Scalito”, so why shouldn’t Obama follow suit with Sotomayor and another true believer with a record?

And of course, Colorlines is ready with a Supreme Court Dream Team for racial justice, including luminaries like Harold Koh (who Angry Asian Man endorsed with a case for Supreme Court nomination.)

But our current reality means that Kagan has the nod, and is preparing for her hearings. The Congressional Black Caucus has promised questions – here at Racialicious, we will be eagerly awaiting more news.

Worth a Read: 9750 Words on Elena Kagan, over at the SCOTUS blog