Tag Archives: Elena Kagan

Sprinkle Some Brown on It

by Guest Contributor G.D., originally published at TAPPED and PostBourgie

Thurgood Marshall

Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan’s confirmation hearings weirdly taking aim at the storied judicial career ofThurgood Marshall. Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth.

Later in the day, though, Sessions compared the Supreme Court’s decision in Citizens United, which granted corporations the right to make unlimited political donations, toBrown v. Board of Education, the landmark civil-rights case that declared de jure racial segregation unconstitutional. In the Citizen’s United case, he said, the court went back to the principles of the Constitution to apply equal protection of the laws.

“Is it treating people equally to say you can go to this school because of the color of your skin and you can’t?” Sessions asked rhetorically. “We’ve now honestly concluded and fairly concluded that it violates the equal protection clause.”

How is that like Citizens United? “I think this Court, when they said ‘Wait a minute! If you’re talking about a precedent that says the government can deny the right to publish pamphlets, then we’ve got get rid of this one outlier case Austin — 100 years of precedent — and go back to what the Constitution [says].’ I don’t think that’s activism.”

Buried in this tortured analogy is a pretty illustrative example of how amorphous originalism actually is. The decision in Brown, arguably the most famous case taken on by the legendarily activist Warren Court, was (and still is) decried by many conservatives as judicial overreach. Yet as Sherilyn Ifill points outChief Justice Roberts actually invoked Brown in the Citizens United ruling precisely because it eschewed precedent; “if the court never departed from precedent, ‘segregation would be legal.’”

Because Brown is one of those moments that affirms the goodness of American character, and because its fundamental rightness is taken as a given now (in a way that certainly was not true when it was decided), it’s often brought up this way by conservatives, as a cover for expansive readings of the Constitution that bring about results favorable to their ends.

So they want to give corporations new ways to involve themselves in the political process but are bound by campaign finance laws from doing so? No worries! Just sprinkle some Brown on it.

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. Continue reading