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On Elena Kagan: Is the Supreme Court Not a Civil Rights Issue?

President Obama is reportedly going to nominate Solicitor General Elena Kagan to the Supreme Court (SCOTUS), without even interviewing a single Black jurist. For many in his largely progressive base, Kagan’s appointment would be an unforgiveable betrayal—yet another by this president.

For some, the most troublesome thing about Ms. Kagan is her sparse publication record. In other words, very little is known about her thinking on any of the issues that might be heard by the high court. Namely, they want to know how she feels about women’s reproductive rights, gay marriage, immigration reform, the death penalty, separation of church and state, equal protection under the law, state’s rights, and the list goes on and on.

But far more troubling, at least to this writer, is the profoundly disturbing news emerging of her dismal “minority” hiring record as Dean of Harvard Law School (HLS). Apparently while at the helm of that Holy Grail of legal training, Kagan hired 29 tenure-track faculty—and not one of them was Black, Latino or Native American.  None.  Nada.  Zero. 

Do I have your attention yet?

To be exact, Kagan hired 23 White men, 5 White women, and one Asian American woman. Not surprisingly, many legal scholars and journalists—although not the Black Press Corps— have begun to publicly question the likely nominee’s commitment to racial diversity—or lack thereof.  

And what of affirmative action, which has been substantially weakened, barely surviving a barrage of legal challenges? And there are certainly more to come.

President Obama, though, is said to be high on Kagan’s bona fides as a bridge-builder, one able to build consensus across party and ideological lines, as she famously did at HLS, where hiring had been at a virtual standstill, particularly that of conservative faculty. But is that really a solid basis upon which to make a lifetime appointment to the highest court in the land, that Kagan is a proven right-wing accommodationist?  (So much so, the conservative icon Bill Kristol has endorsed her publicly.)

And should this president just brush aside the fact that Kagan has not demonstrated any appreciation for racial and gender diversity in hiring. Guy-Uriel Charles, founding director of the Duke Law Center on Law, Race and Politics, thinks not. And he has said so, quite forcefully, in his article, “Some Questions about Elena Kagan,”

“I will accept the point that one of Kagan’s chief selling points is that she assured that Harvard did not discriminate ideologically…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?”

Charles goes on to write, “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 [B]lack, 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.”

I could not have said it any better myself.

Alarmed by these revelations, the Obama White House, famous for “push-back,” has reportedly begun circulating diversity “talking points” defending Kagan’s disquieting hiring record at HLS, replete with “charts and lengthy quotes.”

But Charles and several other law professors pushed right back, publishing the devastating article, “The White House’s Kagan talking points are wrong.”

“The White House does not dispute our basic facts,” write the legal eagles.  “When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were White men…Just [three] percent of her hires were non-White—a statistic that should raise eyebrows in the 21st Century.  These are the facts that the White House does not try to defend because these facts are indefensible,” they continued.  

By way of comparison, during this same time period, Yale Law School reportedly hired 10 tenure-track faculty, 50 percent of whom were women and 10 percent were “minorities.”

The White House has—so far—deflected such criticism “like the magician performing a trick…point[ing] our attention elsewhere,” writes Charles and company.

Team Obama would have us believe that “the hiring numbers are misleading because they do not reflect the number of offers that Dean Kagan made to women and scholars of color.” Unfortunately—or conveniently—citing privacy concerns, the White House maintains that they cannot reveal the numbers or names of persons of color extended such offers.

The White House does offer statistics substantiating offers made to visiting professors, which are often not permanent—unless convinced to stay on by the dean. And the Charles team wonders “what would it say of Dean Kagan’s powers of persuasion that she could not attract more minorities and women with offers to join one of the most prestigious faculties in the world?”

So, there you have it.

President Barack Obama, the nation’s first African-American president is unperturbed by Kagan’s blind-eye to racial and gender diversity at HLS, in spite of the fact that the young Obama protested this very same issue during his time of matriculation there.

What are we to make of these jaw-dropping statistics, not to mention the White House’s inexplicable defense of the indefensible? And there are so many more questions, many of which are heartbreaking for me, who walked the streets knocking doors, volunteered at Obama’s local campaign headquarters, and wrote numerous pieces in support of candidate Obama.

But this is not the time for buyer’s remorse.

What I want to know is this: Where is the Black press on this story? Furthermore, why are organizations like the NAACP, the National Urban League, the National Action Network, the National Organization of Women, the National Council of Negro Women, and the National Council de le Raza, and others, not in an uproar about what some consider the almost certain nomination of this person, who is no doubt nice enough? 

But the question is this: Should she be granted a lifetime appointment to the high court?

And what about the Congressional Black and Hispanic Caucuses? Why should it be left to academicians like Guy-Uriel Charles, Anupam Chander, Luis Fuentes-Rohwer, Angela Onwauachi—and yours truly—to sound the alarm? 

I even started a petition urging President Obama to nominate an African-American to the Supreme Court, but most Black people do not want to do anything remotely perceived as being critical of “The One.” 

And our anointed civil rights “leaders” seem more concerned with maintaining personal power—not to mention their seats in the “kitchen cabinet” and being invited to the White House—than about the good of our people. 

There is a problem of historic proportion here. I mean, is the Supreme Court not a civil rights issue?

Perhaps they will wait until the SCOTUS has shifted to the right for at least a generation, as predicted by lawyer/writer Glenn Greenwald—thanks to this Black president, in whom we placed so much hope and trust—before they spring into action. But by then, it will be all over, as they say, but the crying.



Dr. Pamela Reed is a diversity consultant, cultural critic and assistant professor of English composition & Africana literature at Virginia State University.

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