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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Why Many Think Obama has to be Better Because He’s Black

Earl Ofari Hutchinson



A recent CNN poll seems to confirm what a majority of African-Americans and a significant percent of whites seem to think or at least say. And that’s that President Obama will have to be better because he’s black. Translated this means that at Obama’s first real or perceived screw up there will be howls that that’s what you get when you plop a black into any position that requires a brain and skill. The undercurrent that courses through this warped race tinged view of why blacks are expected to fail is that they are plopped in an important spot because of affirmative action or unexpunged white guilt, and they’re grossly unqualified for it.

These screwy reasons ignore the savvy, ability to think, preparation, or education that get African-Americans top spots in corporations, universities, and politics. Obama certainly had the right stuff to bag the biggest political prize of all, the presidency. The great what if, though, is would former President W. Bush have bagged the grand prize if he had been black? The CNN poll doesn’t answer that but some have set a bar virtually nonexistent for a mediocre white politician ridiculously high for Obama.

Obama is well aware that the old racial double standard rule might apply to him too and that he will be under torrid public glare; more torrid that any presidential candidate in campaign history. And there will be packs of voters who hope, even pray that he flops. Race is the only reason many of them wish that. Surveys during the campaign found that even some of the most passionate Obama backers did racial gymnastics and separated their man from other blacks. They raved about his political genius, hailed him as the one to lead the country out of the Bush morass. Yet many still said that blacks were more crime prone and less industrious than whites. A month after Obama’s triumph not much had changed. A long term study of racial attitudes by the National Academy of Sciences found that a significant percent of Americans still saw color as the major factor in determining who committed crime and who was most likely to be poor.

Obama acknowledged the racial wariness of some near the beginning of the campaign when he said that there were some who would not vote for him because he’s African-American. He said the same thing again albeit more subtly in his triumphant speech on Election Night in Chicago’s Grant Park when he said that he wanted to reach out to those who did not vote for him(accept him).

During the campaign the political stars aligned for Obama as they did for no other Democratic presidential candidate in a decade and a half. There was massive public fatigue from Bush policies, rage at Republican corruption and ineptitude, an SNL laughingstock vice presidential candidate, and a catastrophic financial meltdown and crumbled economy. There was also Obama’s backward stretch to keep race out of the campaign. The only time he dealt with the issue was to damp down public unease over the inflammatory racial tirades of his former pastor Reverend Jeremiah Wright. Despite all the towering political pluses he had, a majority of whites and that included a narrow percentage of young whites did not vote for him

But the presidential campaign is now a fast fading memory. The big concern for most Americans no matter whether they backed Obama or not is can his policies work? This doesn’t mean that racial stereotypes, open and closeted, have magically vanished. He’s in the bare embryonic stage of his presidency, and few are willing to say anything about his style or program that can be remotely seen as having a hidden racial animus. It’s simply politically incorrect and crass to hint or infer that Obama is not up to the weighty task of governance. Even GOP hard bitten conservative William Bennett publicly but lightly rapped talk show kingpin Rush Limbaugh on the knuckles for allegedly wishing that he wants Obama to fail.

The true test, though, will come when Obama makes a real or perceived foreign policy or domestic issue stumble or takes a stance on an issue that angers his opponents. Obama will be lambasted for that. All presidents are. Criticism is a part of the job; it comes with the political turf. Presidents know that, expect that, and should even welcome positive criticism. The difference is that America has never had a black president who has had to bear the brunt of criticism for missteps or policy blunders. Obama is the first. There are two kinds of criticism Obama will get. One is leveled based solely on whether his policies and decision making help or harm public interests. The other comes with a sneaky racial motive. Obama sadly will get both.

Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is How Obama Won (Middle Passage Press, January 2009). http://www.learnhowobamawon.blogspot.com

Connerly’s Anti Affirmative Action Measure Could be a Win-Win for McCain

Earl Ofari Hutchinson

In 1998 Republican Presidential contender John McCain drew howls from conservatives when he opposed Senator Mitch McConnell’s federal transportation bill that would have replaced race- and gender-contracting set-asides with ones designed to help small businesses no matter the race or gender of the owner. But it was a Senate vote, and McCain’s vote passed way under the media and public’s radar scope. Most importantly for McCain, it was not a presidential election year. So McCain didn’t really gain or lose a whole lot by voting to keep racial preferences in place, at least at the federal level.
A decade later things are different, much different. McCain has deftly shifted gears and urges a “yes” vote on Ward Connerly’s anti-affirmative action initiative on the Arizona ballot in November. McCain bets that this time pummeling affirmative action will do far more good than bad for his campaign. It’s a smart bet. A big opponent of Connerly’s barnstorming state campaigns to dump affirmative action, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary candidly admits that the only way to beat back these initiatives is to keep them off ballots. That didn’t happen in California in 1996, in Washington in 1998 and in Michigan in 2006.
The anti-affirmative action initiatives won by solid even crushing margins in all three states. In the process, they galvanized public opinion, stirred subtle white resentment even anger against anything that smacked of racial preferences, and sent a big message that pushing affirmative action was a politically losing proposition. Michigan proved that. The two GOP candidates for governor and the Senate in the state opposed Connerly’s initiative. Both lost. But even more important the measure did not stir a mad dash by blacks, women, and Latinos to the barricades in Washington and Michigan to defeat the initiative. The lesson from the GOP candidate’s defeat and the relatively mild backlash to the initiative wasn’t lost on McCain.
At one point Connerly talked about taking his anti-affirmative action initiative fight to more than a dozen states. That hasn’t happened. But the number of states where Connerly dumped the initiative on the ballot isn’t important. What is important is the timing for placing the initiative on a state ballot and the states chosen to put it. Three states were picked for November. Nebraska is one. It’s a solid Red state, and almost certainly the initiative will win big there. election year or not. The other two states, Colorado and Arizona, are much more important. Democrats think that Colorado could for the first time in recent presidential bouts be in play for Obama. They think the same thing about McCain’s home state of Arizona. That’s mostly due to the big jump in the number of Hispanic and younger voters in these states. The Connerly initiative is just the thing to counter that by creating a mini wedge issue in both states that energizes conservatives too rush the polls to back the initiative and stick around long enough to back McCain.
That’s one political plus, but it’s not the only one. McCain can have it both ways on the issue. He can insist that he still strongly backs equal opportunity and just as strongly opposes discrimination. He can then make the standard anti-affirmative action pitch that he backs the Connerly initiative precisely because it strikes a blow against discrimination, namely racial preferences. And after all, isn’t everyone, and that even includes more than a few blacks, Latinos and especially Asians, against anything that smacks of racial unfairness?
There’s more still. Democratic rival Barack Obama appears to agree with McCain on this point. At first glance that seems a wild stretch. Connerly says Obama cut radio ads in 2006 hammering his Michigan anti-affirmative action initiative, and unabashedly saying that if it passed it would hurt women and minorities in getting jobs and in education. And he will oppose Connerly’s initiatives. But just as McCain wobbled in 1998 in opposing McConnell’s anti-affirmative action bill when it wasn’t a presidential election year. 2006 wasn’t a presidential election year either when Obama passionately defended affirmative action. 2008 is. He’s slightly wobbling on affirmative actions just as McCain did.
He has repositioned himself as a centrist Democrat and now flatly says he’s against quotas. That’s an easy call, since courts have repeatedly slapped down any affirmative action programs that mandate specific numbers of women or minorities be hired or admitted to colleges. But Obama wobbled even more when he says that the affirmative action measures should not be applied without taking into individual needs, and they should be applied to poor whites. The caution and even shading on how he speaks of affirmative action is a far cry from the ringing endorsement he gave to affirmative action for women and minorities.
It’s no real surprise. McCain aims to make Connerly’s initiative a political win-win for him. Obama aims to make sure that it’s not a total lose-lose for him.

Earl Ofari Hutchinson is an author and political analyst. His new book is The Ethnic Presidency: How Race Decides the Race to the White House (Middle Passage Press, February 2008).