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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Did Palin Really Say She Wouldn’t Hire Blacks?

Earl Ofari Hutchinson

Sarah Palin admittedly hasn’t had much of a track record when it comes to acknowledging let alone promoting diversity during her short tenure as Alaska governor. She’s on record with a terse utterance on hate crimes legislation and another one on cultural diversity.

During the 2006 gubernatorial campaign she told the Eagle Forum that she opposed expanded hate crime legislation. In her gubernatorial campaign booklet in 2006, Palin gave her equally terse view of discrimination. She simply said that she and her gubernatorial running mate would provide opportunities for all Alaskans. There is no record that Palin has made any other public statements on diversity and minority issues since then. This in itself might be cause for only a slight eyebrow raise.
But Palin’s skimpy track record and paucity of words on diversity is relatively tame compared to the far more damaging accusation that’s making the rounds. On April 29, fourteen Alaska black leaders that included prominent ministers, NAACP officials, and community activists met with Palin to voice their complaint over minority hiring and job opportunities. During the meeting she allegedly said that she didn’t have to hire any blacks. Even more damning, she purportedly said that she didn’t intend to hire any.
This charge is so racially incendiary that it sounded like yet another one of the legion of Palin urban legends that have fueled the cyber gossip mill from the instant Republican presidential contender John McCain plopped her on his ticket. The charge had to be confirmed or denied. If Governor Palin or any other public official flatly said that they had no intention to hire blacks that would be politically unpardonable. And for a potential vice-president it would and should be the kiss of death.
In a phone message to this writer, Megan Stapleton, a Palin spokesperson who works with the McCain-Palin campaign committee, vehemently denied that Palin ever said that she would not hire blacks. Sharon Leighow, a communications spokesperson in the Alaska governor’s office, also disputed the allegation. She said that Palin’s press secretary was part African-American and that two of her senior advisors were Filipino and Korean.

But Leighow was also adamant that Palin did not hire staff persons based on color, but solely on talent and skill. As she put it, “Governor Palin is totally color-blind.”

In a call to this writer, Gwen Alexander, President of the African American Historical Society of Alaska who initially reported Palin’s quip stuck by her contention that Palin made the racially charged retort. She also charged that Palin did not support or even officially acknowledge the group’s annual Juneteenth Commemoration.
June nineteen is celebrated as the date of slave emancipation in Texas. Alaska is one of thirteen states that have designated it an official holiday. Other Alaska governors have sent the traditional greeting and acknowledgement to the Society. Alexander says Palin snubbed the group.
The unofficial charge then is that Palin is insensitive to the state’s African-Americans, and that includes refusing to hire and appoint African-Americans. That charge is hotly disputed by Palin’s staff and they cite names and numbers to back it up. But apart from the veracity of the charge and the denial, Palin’s statement that she’s absolutely color blind when it comes to hiring and appointments does set off warning bells.

The color blind argument strikes to the heart of the continuing debate over what and how far governor’s, indeed all public officials, should go to insure that their staffs and their appointments truly represent the broadest diversity possible. Officials must make a concerted outreach effort to make that happen. Palin’s color blind posture more often than not has been nothing but a convenient excuse not to seek out, and hire and promote African-Americans and other minorities in their administration, no matter how qualified.
Diversity is a major issue this election. It’s implicit in Democratic rival Barack Obama’s White House run. It’s explicit in Ward Connerly’s anti-affirmative initiative on the ballot in three states this November. Obama opposes it. McCain backs it, and so does Palin.

Palin’s commitment to diversity is no small point in Alaska. According to the 2000 Census figures blacks make up officially about four percent of the state population. But those who self-identify at least in part as African-American bump up the percentage much higher. This is not an insignificant number especially when American Indians, Aleuts, Eskimos, and Asians are taken together. Minorities then make up about one quarter of Alaska’s population. This makes the state one of the most ethnically diverse in the nation. Diversity must be more than a word that an Alaska governor pays campaign lip service to and then ignores.
Palin’s campaign and gubernatorial spokespersons say the knock that she is hostile to blacks and minorities is unfair. That may well be true. But to those Alaska black leaders who challenged Palin on her administration’s minority hiring practices, to them the knock is much deserved.

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).