Legal Commentary

Kagan's Hiring Record At Harvard: Does She Believe In Diversity?

By Big Tent Democrat

The most troubling aspect of Elena Kagan's record, in my view, was her hiring record as Dean of Harvard Law School. Guy-Uriel Charles wrote:

One of Kagan's purported qualifications for the Supreme Court is that she is a consensus builder. The chief evidence for that contention is that she broke the hiring logjam at Harvard and made it possible for Harvard to hire conservatives. It might sound absurd to some, but I will accept the point that one of Kagan's chief selling points is that she assured that Harvard did not discriminate ideologically. I am personally gratified that Harvard Law School is not closed to conservative faculty members. I support ideological diversity and would not want to see qualified individuals discriminated against on the basis of ideology.

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 new hires, only six were women. So, she hired 23 white men, 5 white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan's tenure. To believe otherwise is to harbor troubling racist views.

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I'd like to see the evidence.

(Emphasis supplied.) My thoughts on the flip.

Charles operates from three premises I share. First, affirmative action, even when done to promote the dissemination of views I strongly disagree with, is a good thing. Kagan's affirmative action policy at Harvard to promote the representation of conservatives into the Harvard Law faculty, was, in my view, admirable. Diversity is more than just a euphemism for addressing historic injustices that impact society today. It is a good on its own. The fact that conservatives were given a leg up in hiring practices at Harvard Law during Kagan's tenure is a plus in her resume in my view.

Second, Charles is right that affirmative action for conservatives should not have completely overthrown Harvard's commitment to a diverse faculty in terms of race and gender. Kagan's record on this is inexplicable. It is awful. It raises serious questions about Kagan's actual commitment to diversity.

Third, I completely agree with Charles that there is no "justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan's performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups."

Without adequate answers on this question, it will be very difficult for me to support the nomination of Elena Kagan to the SCOTUS.

Speaking for me only

Full post as published by TalkLeft on May 03, 2010 (boomark / email).