Some Hard Questions for Elena Kagan


President Barack Obama's pick of Solicitor General Elena Kagan to fill the seat vacated by Justice John Paul Stevens is widely regarded as the safest choice the president could make. She was just confirmed to her seat as the government's counsel to the Supreme Court by a 61-31 vote last year. Seven Republicans voted in support of Kagan for solicitor general. She has an impressive résumé that gives an air of historic importance to her nomination as well. She is the former dean of Harvard Law School and will be the fourth woman on the Supreme Court. After graduating from law school, she served as a law clerk to Justice Thurgood Marshall.

She even constitutes somewhat of an answer to those who argued that the track to the Supreme Court had been narrowed to those sitting on the federal appellate courts. She has no judicial experience and thus falls outside the ''judicial monastery'' that has been the source of all recent nominees. The fact that Kagan doesn't have much of a paper trail—not only has she not served as a judge, but she's written only a very few non-controversial law review articles—means that Republicans will not have a huge source of material from which to try and caricature Kagan ideologically. And Kagan is, by all accounts, a moderate, who probably falls slightly to the right of retiring Justice John Paul Stevens on a variety of issues.

Nevertheless, there are bumps in the road ahead for Solicitor General Kagan's confirmation. And they mostly come from the left. One of the most intriguing and least-reported has been pressed by a group of well-respected law professors of color. In a blog piece published two weeks ago, Duke University law professor Guy-Uriel Charles called out Kagan's record on hiring while she was dean of Harvard Law School. Her tenure at the helm of Harvard's Law School is often noted as evidence of Kagan's ability to ''reach across the aisle.'' She presided over the hiring of a number of conservative law professors at the traditionally more liberal law school. Because of her active promotion of conservatives at Harvard, Kagan has picked up a number of prominent conservative supporters.

But as Charles argues, this may have come at the expense of racial and gender diversity. Of the 29 law professors hired by Professor Kagan, only one was a professor of color. None were African-American or Latino. Only seven were women. This promotion of white, conservative men to the exclusion of women and professors of color at Harvard demands a closer look at Kagan's commitment to and understanding of the importance of racial and gender diversity. It's particularly important given the long history of efforts by many prominent minority law professors to push for greater racial diversity on the Harvard Law School faculty.


It's apparent that the White House took Charles' challenge seriously. The White House last week released information designed to counter the critique of Kagan's diversity record. But as Charles, joined by law professors of color Angela Onwuachi-Willig, Anupam Chander and Luis Fuentes-Rohwer point out in a response published in Salon showing that Kagan hired a number of visiting professors of color, doesn't answer why the coveted, permanent positions with the promise of tenure, were never filled by professors of color. In other words, Kagan still has some explaining to do. And her answers to this set of questions will resonate powerfully within the legal academy, where questions of diversity and hiring at the most prestigious law schools in the country continue to roil faculties.

It's likely that in the next few days one or more professors at Harvard—I would bet on African-American professor Randall Kennedy—will themselves pen a prominently placed piece designed to counter challenges to Kagan's diversity hiring record. But behind the scenes, Obama's team will be working furiously to tamp down calls for Kagan herself to respond to this concern, which is one that may resonate well with those on the left who already fear that Kagan is too ''safe'' to make a real difference on the Supreme Court.

Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root.

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