Legal Commentary

I've been off the box the last few days but, as I'm catching up, I see that there's a bit of a tempest lately over the hiring record of Elena Kagan while she was Dean at Harvard Law School. A year ago, as Kagan's name was on the shortlist for the seat that would become Sotomayor's, I called attention on this blog to some comments from apparatchik Wendy Long, who argued that Kagan shouldn't receive credit for creating intellectual diversity on the HLS faculty since only 3 of her hires were conservatives or libertarians (Goldsmith, Vermeule, and Manning).  Now a number of profs are challenging (if not exactly attacking) Kagan because her hiring record at HLS is viewed as sub-optimal with respect to women and minorities. UPDATE: Kagan is now being reported as nominee for SCOTUS.

When I wrote my initial post, I noted that the arguments against Long would also be relevant to the arguments that could be made on other grounds related to diversity even though some differences between the two sets of arguments could plausibly be advanced. Now that those challenges have come to pass, it seems there are a few points worth reiterating and bearing in mind before casting aspersions on Kagan's commitment to diversity.

First, the dean of HLS (like other law schools) cannot simply appoint persons to the faculty of her choosing.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian (or female or minority) student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? If the answers to those questions are yes, then those are marks of a good dean. (There are some suggestions the answer is no, here, btw.) And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But we should be careful in the end not to conflate the achievements  and virtues of a good dean with the achievements and virtues that conduce to being a good Justice.