Elena Kagan: Maybe not completely perfect! Addition

I cannot believe that Obama has nominated someone for the supreme court who may not be perfect.  That’s a typical revolutionary tactic, is it not?  (See  Glen Beck on how the current crop of revolutionaries have already done away with the old America where everyone got along and supported each other.)

But of course some imperfections are more imperfect than others.  One  has been raised that is hard for us to ignore.  And that is the concern that the hiring at Harvard Law School while she was dean continued a bias against diversity.  Here’s one statement of the problem from Salon:

When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white — a statistic that should raise eyebrows in the 21st Century.

FiveThirtyEight makes an interesting but problematic point:

I think a lot of people in Kagan’s position — whether or not they held an affirmative goal of increasing the diversity of the faculty — would tend to become self-conscious about their low number of minority hires after some time. After they’d hired 12 or 13 white people in a row — some point at which the trend had become conspicuous — they’d bend over backward to hire a minority candidate or two, perhaps bypassing more qualified candidates in the process. …  In other words, I doubt that very many people, especially in academia, would truly make their hiring decisions independently of one another.

This evidently wasn’t a problem for Kagan — and unless you do want to accuse her of discrimination, it arguably speaks to certain kind of fair-mindedness. That is, she was treating every decision that came before her on a case-by-case basis, rather than behaving like the bad referee who calls a penalty on the next play to make up for a miscall on the previous one. To me, that potentially speaks to someone who has a strong ability to evaluate the evidence objectively and without regard to politics — qualities I’d generally find desirable in a candidate for the Supreme Court.

That may be a worrying defense of Kagan.  It appears that the initial point is something like this:  Administrators who are consistently finding the best candidates are white men will eventually make (small?) sacrifices in quality to get diversity.  And, of course, the problem is that if you have a profession very seriously shaped by implicit bias, you have to query the accuracy of the claims about the best candidates.  According to whom?  And in light of what?

I’m not keen on judging Kagan’s record, because I don’t know enough about what was going on.  Deans often have very considerable power  to recruit excellent candidates, but they may not have the ability to overrule hiring committee decisions.  If anyone has any better  understanding of Harvard’s Law School, it would be great to hear.

A related factor is that apparently the law school was in great disarray when she took over as dean, and she got it fairly well sorted out.  I suspect that starting off in that situation by announcing that they would aim for diversity in hiring would have finished her off pretty quickly.  But perhaps she could have turned to diversity as more of a goal later in her deanship.  Or perhaps she did, and still in a profession marked by years of bias, it was much  harder to make more diverse hires.**

538 points out that Harvard is very close to the other top law school in diversity, with a lead over Yale in the hiring of women that makes one wonder about Yale.

So there are lot of unanswered questions, I think.  What do you think?

O, and just not to miss out on the discussions going on.  She is very successful single woman.  That is, SINGLE!  You know you can read her sexuality off of that fact alone.  Yes!  The first openly gay appointment to SCOTUS.  Except the White House says no.  Too bad.

**A reader objected to this comment in private communication.  Given that I’d certainly question any comparable statement about philosophy, I now think this was an unfortunate  conjecture.  That said, let me note that it was a conjecture about the possible effectiveness of discriminatory forces in a field, and not about the abilities or preferences of underrepresented groups.

8 thoughts on “Elena Kagan: Maybe not completely perfect! Addition

  1. We don’t know whether Kagen tried to hire more minorities and wasn’t successful. I know of two female philosophers who were offered tenured spots at HLS and both turned it down. (In one case, Martha Nussbaum, the offer was publicly known, and you can find her statement as to why she turned down the offer if you’re interested. In the other case the offer was never made public so I’ll not make it so either. I don’t know why the woman in question turned it down and won’t speculate, though she’s a very well qualified legal philosopher.) So, we should at least consider the possibility that some of the lack of success at hiring minorities was due to offers being turned down.

  2. So the point by FiveThirtyEight is that, while Kagan arguably made poor hiring decisions as HLS dean, she at least did so consistently? It takes a decent amount of spin to turn that into a positive.

  3. Actually, it is fairly obvious–from the White House’s weak response to minority law professors calling out Kagan for her hiring record as dean at HLS–that Kagan made few if any attempts to hire underrepresented minorities.

    Sometimes, as also with the Routledge ethics volume and the philosophy profession generally, the facts speak for themselves–at least circa 2010.

  4. I don’t know about the process at Harvard, but at Penn Law the dean doesn’t have a huge direct role in hiring. The hiring committee does most of the work and offers are voted on by the full faculty. The dean must approve, but doesn’t usually get involved until the committee makes a choice. It would be extremely rare for the dean to diss-approve of a choice approved by the full faculty. The biggest role of the dean would be in trying to encourage people to take voted-on offers and trying to discourage fighting among the faculty on offers. I don’t know, but I’d be surprised if the process at Harvard were massively different. And, as noted above, at least two offers to senior women were made and not accepted. I’d be surprised if these were the only ones. Not even Harvard has all their offers accepted.

  5. Matt – thanks for the added info. In fact, the White House has also said that there were more offers than hires.

    I expect that a dean also has a significant role to play in recruiting people to apply, but I think it would be unusual if the dean was able to make decisions quite independent of the faculty on a regular basis.

    Andy, sadly, I don’t think that was their point. Rather, the idea is that she didn’t let race or gender interfer with decisions about who is best. I tried to indicate why that is a problematic defense.

    Of course, the problem with all I’ve just said is that it comes very close to a justification for maintaining the status quo. I really don’t know enough about Harvard, but in areas I understand better, I think we are entitled to say “Sorry, but you have to do better than that. The stakes are just too high.”

  6. >> “It appears that the initial point is something like this: Administrators who are consistently finding the best candidates are white men will eventually make (small?) sacrifices in quality to get diversity. And, of course, the problem is that if you have a profession very seriously shaped by implicit bias, you have to query the accuracy of the claims about the best candidates.”

    I’m not sure we’re reading Nate Silver’s post in quite the same way, JJ. As I see it, it is perfectly open to Silver to acknowledge what you’ve said here–i.e., that Kagan’s decisions may have been influenced by implicit bias (or were otherwise questionable). However, what I take Silver’s point to be is the following: given widespread attitudes toward the importance diversity, someone in Kagan’s position would likely feel pressure to compensate for her many white-male hires by deliberately seeking out minority candidates; however, we don’t want people to be making important decisions as a result of fear of political repercussions (this is what the “bad referee” does when he atones for an erroneous call which disadvantages Team X by later making an second erroneous call in X’s favor); whatever problems we may have with Kagan’s hiring record, then, at least we know that she is not prone to *this* particular shortcoming. She may well have been biased in one way or another, but at least she wasn’t motivated by the mere desire to save face. (Personally, I would concede that this is a good thing; but it strikes me as a rather piddling distinction, one which is not particularly reassuring.)

  7. I think that’s a false dichotomy though; if a ref is calling balls (no pun intended) when he should be calling strikes, they can correct their strike zone without making another bad call to make up the difference.

  8. Andy, I’m not sure. He does say this:

    and unless you do want to accuse her of discrimination, it arguably speaks to certain kind of fair-mindedness

    So he seems to be saying something like “You can get to ‘mostly white male hire’ by discrimination OR by hiring on a case by case basis.” But that implies that he thinks there are some non-discriminatory principles that applied on a case by case basis get one to most white male hires. And, given the context, these non-discriminatory principles are ones that are going to be acceptable to HLS.

    And what concerns me is the the assumption that there are such principles.

    That’s not to say that there could never be such principles, but I think that any such principles would have to be looked at carefully.

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