The Race-Based Case Against Elena Kagan

This piece was originally posted on April 28, 2010 upon speculation that Elena Kagan would be nominated to the supreme court. We are reposting it due to news that she has actually been nominated.

Glenn Greenwald has been busily documenting the case against Elena Kagan for the Supreme Court (and for Diane Wood). Essentially, his main case against Kagan boils down to the fact that we (stunningly, since she's been an academic for twenty years) have no paper record of her, and the little we have shows that she has scary leanings on executive power and would move the court farther to the right on that crucial modern-day issue where Obama is as bad as Bush in every respect.

I believe that critique powerful, as we don't want to go in blind, but I want to highlight another, very troubling bit about Elena Kagan documented by Duke law professor (and Michigan Law grad/Michigan Journal of Race & Law founder and 2010 symposium speaker!) Guy-Uriel Charles (and quoted in yesterday's article by GG)

Money quote:

Granting that we know very little about Kagan, what do we make of the facts that we do know? Here are some data that gives me pause about Kagan. When Elena Kagan was Dean of the Harvard Law School, she hired 29 tenured or tenure-track faculty members. But she did not hire a single black, Latino, or American Indian faculty member. Not one, not even a token. Of the 29 people she hired, all of them with one exception were white. Under Kagan's watch Harvard hired 28 white faculty members and one Asian American.

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.

Given equality in hiring for disadvantaged groups in something liberals hold near and dear to our hearts and usually depend on the courts to enforce, how can we accept this in a nominee?