JJ’s last post on Kagan was about Lessig’s defense of her. I get the impression that Americans may be getting deluged with anti-Kagan articles. But I’m not, and I know many of our readers are, like me, not in the US. (I normally keep up, but I’ve been preoccupied by the UK election. And marking.) So, for those who want to know what those worrying about Kagan are saying, here are two examples.
Here’s Guy-Uriel Charles:
How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 29 32 new hires, only six seven were women. So, she hired 23 25 white men, 5 six white women, and one Asian American woman. 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 black, 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.
Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan’s performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I’d like to see the evidence.
And here’s Glenn Greenwald:
Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template: namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”
Thanks to Anon “Sr” Philosopher for putting me on to Charles’s article, and also for introducing me to the blog Colored Demos, which looks excellent. He also responds to some critics of his worries about Kagan here, and it’s really worth reading. Oh, actually it’s so good I’m going to quote it too:
[Defenders] contend that it is unfair to criticize the actual numbers of women and minority faculty hired during Kagan’s tenure as Dean because faculties, not Deans, vote offers to new faculty members. Yet, in the same breath, Kagan’s supporters also point to the ideological diversity that Kagan brought to the faculty by bringing in a number of prominent conservative scholars. Well, to put it bluntly, you can’t have your cake and eat it, too. If Dean Kagan cannot be criticized for the lack of racial and gender diversity in faculty hiring because those votes were out of her hands, she also cannot be praised for increasing ideological diversity among the faculty. That, too, must have been out of her hands.
It may very well be that it was much harder for Dean Kagan to move Harvard Law School in the direction of increasing racial and gender diversity on the faculty. But if that’s the case, why won’t her supporters simply admit it? Why won’t they admit what we already know about implicit bias and how such bias can affect evaluations of women and minority candidates, even by progressives who may write about or support racial and gender equality in their own scholarship?