Kagan’s Affirmative Action Achilles Heel

Earl Ofari Hutchinson

Supreme Court nominee Elena Kagan will plop an issue back on the nation’s table that hasn’t been seen or heard from or about in what seems like ages. And that’s affirmative action. Even before her nomination the word furiously circulated in some circles that during her six year tenure as dean of Harvard University Law School, Kagan had an abominable record on recruiting and hiring minority professors.

At first glance, her record indeed looks atrocious. There were 29 new hires. They were 23 white men, 5 white women, and one Asian American woman; not one black or Latino professor in the bunch. When the dismal figure was released, the White House quickly pushed back. It issued a detailed fact sheet that essentially said that her zero hire of a black or Latino faculty member was grossly misleading. That Kagan had offered several African-American and Latino candidates visiting offers; visiting offers meaning invites to be a visiting lecturer. That’s not the same as a permanent offer for faculty spot. But the inference was that a visiting offer, if accepted, could lead to an offer of a permanent faculty position. That didn’t happen. The visiting offers were not accepted. That in itself is not a prima facie case to say that Kagan deliberately pushed diversity to the back burner at Harvard. Or even that she did not make a sincere effort to recruit minority faculty members. There are always factors, big, little and unseen in the business of faculty hires at major, even prestigious, universities. But Kagan’s motives and the effort she may have made to get a diverse faculty at Harvard Law in the end or a moot point.

Her record on minority hires still stands-- 29 faculty hires, and no black or Latino hires. This is hardly a moot point. There are two major reasons that President Obama nominated Kagan. The first is pragmatic politics. She already went through the confirmation wars as the administration’s solicitor general and is widely considered as a consensus building, judicial moderate. That’s least likely to ignite a prolonged, heated, and divisive fight over her nomination. The second reason is just as crucial. She is the supposedly the breathing embodiment of diversity.

At a presidential campaign appearance in 2007 Obama was emphatic in demanding that a Supreme Court pick be someone who had empathy for the poor, minorities, disabled and old. In the Senate he ferociously attacked and voted against the confirmation of Bush nominees John J. Roberts and Samuel Alito again precisely because they were hardly cheer leaders for diversity. In their views and rulings they were hard line conservative ideologues who did everything possible to subvert diversity. Obama promised there would be no ideological litmus test in his court picks. However diversity seemed clearly a prime consideration in his choice of a high court judge.
This is not an academic numbers balancing act to get the requisite black, Latino and women on the court. The issue of diversity is a fierce battleground in law and public policy. There are countless cases that invariably wind up contested before the high court on gender, age, disability, and racial discrimination, abortion, the death penalty, prisoner and victim rights, and corporate practices. The issues are highly complex, raise important legal and social questions, and are always contentious. Kagan will be in the thick of the court debate on these cases for years to come.
Conservative judicial watchdog groups know the importance of the diversity battle in court rulings better than any other group. They watch hawk like all potential Supreme Court picks, and they wage endless war in their journals, news articles, on blogs, and in position papers on the need for strict constructionist, diversity neutral judicial picks. They have and will continue to rush to the barricades in their fight to insure that a high court pick will be free of any leaning toward opinions and views that tilt toward a bias for minority rights. They will rally public opinion and Senate Republicans to battle against any such judicial pick.
The irony is that Kagan’s blurred record on diversity faculty hiring at Harvard Law School may be a plus and actually keep her out of harm’s way from conservative critics at least on the issue of affirmative action. This will and should trouble liberals and progressives who want and expect that President Obama’s high court nominee take a stand, a firm stand on the one issue that matters a lot to them and from the president’s oft spoken words to him as well, and that’s a solid commitment to diversity. The jury is still out on Kagan on this one.

Earl Ofari Hutchinson is an author and political analyst. His new book is How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press).
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