Your Take: Why Elena Kagan is a Good Choice for the Supreme Court

Former Harvard Law colleague Charles Ogletree Jr. offers a vigorous defense of the nominee.

POLL: Do you think Elena Kagan is a good choice for the Supreme Court?

I am writing to follow up on some of the concerns I am hearing about my colleague Elena Kagan's civil rights record and whether she would be a fit candidate for the U.S. Supreme Court.  While it is certainly up to the President to find the ideal person and to look at a number of factors in reaching a decision, I hear criticisms of Elena Kagan that are contrary to my knowledge of her during the last 25 years or so, and that do not adequately represent her record.  I share this with you so that you'll have a more complete assessment of Elena Kagan's views on race and civil rights matters.

After graduating from Harvard Law School and clerking in the circuit court, Kagan ultimately clerked for Supreme Court Justice Thurgood Marshall.  I don't think anyone can recall a negative word that Marshall ever said about Elena Kagan, and in fact, when he spoke about her, it was always in glowing terms.  Elena taught at the University of Chicago before joining the Harvard Law School faculty. As a result of Kagan's tenacity, focus, and clarity, the university leadership ultimately appointed her as the first woman dean of Harvard Law School. 

During her tenure at Harvard Law School, Dean Kagan made a number of important decisions.  First, virtually every Harvard dean, all men, had assumed the title as dean and as the Sir Isaac Royall Professor at Harvard Law School.  Isaac Royall was one of the initial supporters of Harvard Law School, and actually sold his slaves in Antigua to support the creation of the law school.  Dean Kagan asked to be appointed the Charles Hamilton Houston Professor of Law.  Charles Hamilton Houston is Harvard Law School's most distinguished African American graduate and was the first African American on the Harvard Law Review in 1922.  His work in creating a strong legal basis to end segregation and in mentoring former students such as Thurgood Marshall and Oliver Hill, both Howard Law School graduates, was a legacy in and of itself.  He did much more in his successful litigation before the U.S. Supreme Court.

Selecting the Charles Hamilton Houston title as the chair she would receive as a tenured professor at Harvard Law School was an important request by Dean Kagan.  It offers, I think, a compelling sense of her commitment to diversity and equality. She has held that title since 2003 and in so many of her public addresses talked about the legacy of Charles Hamilton Houston.  Dean Kagan was also quite supportive when I opened the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School in 2005. 

Throughout my time here, I have watched Dean Kagan work to address the issue of faculty diversity.  As dean, she was quite responsive in trying to push more diversity on the Harvard Law School faculty and student body.  While some have criticized the fact that many white males were hired at the law school, Dean Kagan was very supportive of women and men of color, including making sure that the faculty offered tenure to Professor Ken Mack and supported the appointment of Guhan Subramanian, a South Asian law professor, and Jeannie Suk, an Asian American woman.

Dean Kagan pushed the faculty to extend appointments to African American and Latina some of whom chose to remain at their respective institutions rather than accept a position at Harvard Law School.  We also have current candidates under consideration for tenured appointments who were visiting scholars at Harvard Law School during Elena Kagan's deanship. 

Additionally, she was quite instrumental in creating a generation of diverse practicing lawyers who would accept clinical appointments at Harvard Law School.  Among them were Ron Sullivan, who followed my career at Harvard and worked as the director of the Public Defender Service, accepted an appointment at Yale Law School where he received a teaching award, and now has replaced me as the director of the Criminal Justice Institute, a program I started at Harvard Law School during the deanship of Robert Clark.  Dean Kagan also appointed Brian Price, an African American, who is the director of Harvard's transactional law clinic, and Ashish Nanda, a South Asian professor who runs Harvard Law School's executive education program. 

Dean Kagan recruited and pushed for the appointment of Annette Gordon-Reed as a member of the faculty, and I am happy to report that, just last week, Professor Gordon-Reed accepted the tenured offer to join the Harvard Law School faculty.

Beyond the issue of diversity of faculty, I can personally attest to Dean Kagan's support of diversity in the student body.  The numbers that she has been responsible for are just outstanding.  Since Elena Kagan became dean, the number of African American students admitted, particularly black males (given the national decline in African American males in colleges and universities), is simply astonishing.  From 2003 until she ended her deanship in 2009, the number of African American students has been at an all time high.  Her first year, 10% of the students were African American and the total minority student body was 29%.  That percentage has increased in each category over the years.  As a result, 31% of the entering class at Harvard Law School over the last 9 years is a record and a sign of her commitment. 

But, it is the quiet things that are not always noted in these numbers. For the last decade, an annual "Welcome to Harvard Law School" event is held in early September with African American students.  In her own understated and dignified way, Dean Kagan has always welcomed the new students and would spend time with each of them, hearing their stories and expressing her excitement that they were joining Harvard Law School.  The number of African Americans considering legal careers continues to grow, and that is in many ways a result of the encouragement and support Dean Kagan has provided. 

Last year when Dean Kagan was a candidate for Solicitor General, John Payton, the Director-Counsel and President of the NAACP Legal Defense and Education Fund supporter her nomination.  He explained the role that she had played historically and why she would be an important contribution to the Obama administration as Solicitor General.  The praise of John Payton is hard to match, and reinforces the considerable commitment that Dean Kagan has exhibited over the years and why she would continue to enforce the principles and goals that are important to her country that should be free of racism and discrimination.

President Obama has repeatedly stated his interest in nominating a Justice who is intellectually gifted, independent in her thinking, able to engage in critical discussions with others, and whose experience will prepare her to become an immediately engaging and productive member of the Supreme Court.  In her nearly quarter century of time spent as a lawyer in a variety of public and private capacities, Elena Kagan has demonstrated convincingly, in my opinion, that she is well-suited for this honor.

Understanding and appreciating the full depth and breadth of her record is important in moving forward, and I hope that there will be little, if any, doubt that Elena Kagan has been supportive of, committed to, and a devotee of issues of diversity and equal opportunity for all Americans.

Charles J. Ogletree, Jr. is the Jesse Climenko Professor of Law at Harvard Law School and the founding and executive director of the Charles Hamilton Houston Institute for Race and Justice.