Kagan: Opposing Voices

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?

24 thoughts on “Kagan: Opposing Voices

  1. I think Glenn Greenwald offers a very strong argument against Elena Kagan for the Supreme Court. Although I am thrilled to see a female nominee, she is no Sotomayor. I worry that Kagan will end up being for progressives what Souter turned out to be for conservatives.

  2. Jender, I hope I don’t sound defensive if I say I’m a bit concerned that people reading your post will think I didn’t represent the negative side. That would not be true.
    1. The Salon article I liked to in this postwas written by Guy-Uriel Charles and links to the Colored Demos; as my quote shows, it makes much the same statistical point as your first quoted paragraph does.

    2. This post picks up on another very negative point that is being made about Kagan. Brooks gives it the most negative twist I’ve seen.

    Lessig in fact responds to the other criticisms Greenwald brought, and I’ll leave it to others to read that; I link to a discussion between him and Greenwald in the post Jender just linked to.

    I do think the the Colored Demos blog is spot on with the reasons why diversity in hiring is so important. I’m less impressed by their claim “you can’t have your cake and eat it too.” Would it be surprising if it were much easier to hire conservative white men? Why should her supporters say that? It might still be an accomplishment because it went with her changing some of the traditional and apparently pretty nasty divisiveness in the school.

    My understanding is that her supporters in the White House have responded that her hiring record does not represent her attempts at diversity, and Matt in comments on my first post recounts that he knows of two women she tried to hire and couldn’t. It is also worth remembering that the Harvard president through much of her tenure as dean was the infamous Larry Summers, who so insulted Cornel West that he left, and who was happy to suggest that women are intellectually genetically inferior in one respect particularly important in higher ed. It may be that Summers was one factor that made it easier to hire conservative white men; that her liberal faculty were not outraged is perhaps also a reason for us to pause too. Do we have much sense of how congenial African Americans have found Harvard?

    Anyway, my most comfortable position is: I don’t know enough to judge this case. There appears to be “laying the groundwork” attempts at diversity on her part, and diversity in shorter term hires, though not much of the facts are reported. The lack of senior hires is worrying, but I don’t think “not interested in diversity” is the only explanation.

  3. Let me just add that Summers may have been important because top hires these days often involve bidding wars with home institutions and can run up to hundreds of thousands; typically, at that level the president gets involved.

  4. I appreciate the point about the war metaphor for terrorism. This is related to the one point in Obama’s campaign speeches that always made me wince, the declaration that we’re going to find Osama bin Laden, and then we’re going to kill him. Due process, please.

  5. jj, thanks for the link to professor ogletree’s remarks about kagen. i have huge respect for him, both as a legal powerhouse and as someone who puts himself on the line to support legal rights for all, and to advance the causes of those who are disadvantaged.

  6. The critique here seems fairly weak to me as much of it would only be valid if no attempts were made to hire minority professors. In particular, this remark “Please do not tell me that there were not enough qualified women and people of color. ” would only be a legitimate critique if we knew that no minorities were offered spots. The author of the critique clearly isn’t in a position to know that. He might speculate, but as it is, he’s “assuming facts not in evidence”, so to speak. We do know that there were at least some women offered tenured spots who turned them down. Once we have Ogletree’s remark that,

    “Other racially diverse candidates were offered tenure during Dean Kagan’s term, but chose to stay at their home institutions. ”

    Then the lie is really put to this line of argument, especially as Ogletree is in a position to know and most making the critique are not. There are legitimate reasons to worry about Kagan, some of them raised in a good way by Ogletree. One might even have some questions about the hiring at Harvard. But this critique, far from exposing fallacies seems to me to be committing them.

  7. I don’t think there’s reason to be worried about the hiring at Harvard. If indeed she were against affirmative action, or less than enthusiastic about it, or whatever, that really has nothing to do with with her role as a justice. The article below suggests that she is entirely opposed to Marhsall’s view that “You do what you think is right and let the law catch up”. If she is confirmed, I think we can trust that her opinions on affirmative action will be based on how she reads the law, not what she thinks is ethical. In other words, she would not be an ‘activist’ judge (though of course the right will call her that since for them ‘activist’ means someone who disagrees with them). Now, you might criticize her based on _that_, but then the Harvard story isn’t the point at all.


  8. JJ, sorry– I didn’t mean to make it sound that way! I just thought it would be good to have some of the negative stuff quoted here so that the time-strapped would be able to see it without clicking through. (And, I confess, I clearly didn’t do enough clicking through!)

  9. I think I also missed one of your posts. Sorry– life’s been crazy lately.

  10. I don’t think Kagen is well qualified, and I have a feeling that she will be someone who I frequently find to vote along lines that push our law further and further from the original intent of the constitution, but these criticisms are silly.

    First off, results are not always indicative of intent or effort. If the writer went through individual hirings and found a trend of putting less qualified white males ahead of minorities and females, he’d have a point, but his justification is non-sense.

  11. I have to reply to Anon post #8. As a conservative, I expect that your accusation that a conservatives considers anyone who disagrees to be an activist judge, is based on different judicial philosophy, which you clearly don’t understand.

    I consider many liberal leaning justices to be activist, in results, due to their over reliance on past supreme court opinions and decisions, and their lack of reference to the actual constitution. I put the constitution first, and only go to past judicial opinion to clarify where application, or meaning are in question. This is because, unfortunately, opinion, based on opinion, creates drift. Over time the result is that the law no longer represents what the constitution states in any recognizable way.

    Those justices, and liberals don’t consider them activists, because they are following their understanding of how the system is supposed to work, and are following the law. I get that, but it doesn’t make me less happy about constantly increasing the burden of the federal government, and the creep away from the original meaning of the constitution.

  12. Oops, I meant “more” happy”, not “less” near the end of that last post.

  13. I’m confused. Are you saying that Scalia doesn’t consider any justice who disagrees to be an activist judge? And that I wouldn’t either?

    Black’s Law Dictionary defines judicial activism as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”

    I consider those who comb through judicial history to find decisions that support their personal view, in opposition to the clear meaning of the constitution, to be activist judges.

    Even flipping around the meaning of your last post to say that Scalia and I would consider them activists, I still really don’t get your point, nor do I see any justification for it.

  14. “Are you saying that Scalia doesn’t consider any justice who disagrees to be an activist judge? And that I wouldn’t either?”

    That’s exactly what I said, isn’t it? At least not because of any disagreement whatsoever (if they disagree about certain judicial philosophy claims such as what you’re talking about, that’s something else of course).

    Anyway, I wasn’t making or justifying a point, just apologizing for overgeneralizing in the previous post. And the link was just there because I thought it’s interesting and it’s about this term.

  15. I got it. It just looked to me like you were completely contradicting yourself, and so I thought you misstated your position.

  16. “The critique here seems fairly weak to me as much of it would only be valid if no attempts were made to hire minority professors. In particular, this remark ‘Please do not tell me that there were not enough qualified women and people of color,’ would only be a legitimate critique if we knew that no minorities were offered spots.”

    If this view represents a typical approach to diversity, no wonder there has been so little progress regarding minorities. Perhaps the commenter does not really mean to suggest, despite reiterating the point, that any attempt to hire a minority demonstrates a commitment to diversity.

    As far as Kagan’s record is concerned, critics need not make any assumptions about the facts: zero out of 25 hires on her watch were underrepresented minorities. I would find it embarrassing to try to rationalize this, let alone to resort to a “respectable black person vouches for X” defense (especially when that black person has a directly personal and institutional interest in the matter).

    The bottom line is that surely there are enough “qualified” minorities and women who would accept an offer from HLS. Kagan supporters would do better (for her and themselves) simply to acknowledge that her diversity record is problematic–and move on to talking up whatever strengths she has.

  17. Just a clarification: “zero out of 25 hires” is incorrect; it’s zero out of 25 senior hires. She did hire one or more minorities at the junior level. She also effectively increased minority enrollment from 10% to 13%.

    I’m not saying this as a defense, but rather that there’s lots to consider here. She was a dean for 6 years; I’m a bit concerned about judging a record on senior hires for that time, among other things. In that time frame, I’m not sure attempts are irrelevant to the record.

    I’m also far from clear about the assumption that she could get African Americans to come to Harvard at that time. That’s includes an assumption about the attractiveness of Harvard and the willingness of African American top professors to move. Before I pass judgment I’d like to know about the cases where Harvard was turned down.

  18. One thing that might be interesting to think about is how we think this case does or doesn’t differ from ones we call attention to in the Gendered Conference Campaign. I know the FP community (what a ridiculously grand term!) differs a great deal internally regarding how willing we are to accept that particular all-male conferences might not in fact have resulted from bias, implicit or otherwise (e.g. perhaps the organiser actually did ask lots of women, who all declined). I tend toward the “I don’t really know” end of things, which is why I’ve written the standard letter to allow for this possibility. But I know others think I’m a bit soft.

    I’m wondering if people think there are important differences between Kagan and some random organiser of an all-male conference. There could be lots: Demographic differences regarding philosophy’s maleness and law’s whiteness; the difference between a single conference and a a several-year hiring record; differences in difficulty of attracting conference speakers and employees; other things we know about Kagan; and on and on.

    I’m genuinely unsure about all of this. I somehow find myself thinking though, that it might be worth reminding everyone of our “be nice policy”. The posts on Kagan have had a lot of traffic from people who don’t usually come here.

  19. Interesting and right, I think. I’ve been particularly concerned to find myself on the side of “lets count the ‘asks’,” since I don’t find the fact that they did ask with conferences lets them off the hook. At the same time, conference organizers have the complete say on asking – at least normally – and deans do not.

    In hiring in the US, many people have a say in any one hire. I have some knowledge of hiring in the sciences and there diversity hiring can be exceptionally hard. I do know jj-partner has struggled for well over ten years to hire women in a science dept, and has managed two tt hires. He’s not a dean, but, in the parlance of the sciences, he is an 800 lb gorilla. The problems are horrendous and of course include sabbotage by others, outright vetoes, and so on. Last year the dean of the sciences college was bragging about hiring two women (in a college of about 200).

    I noticed that with the University of Michigan’s Advance Program they managed in a period of five years to raise the percentage of women science faculty by 4%. That’s with millions from the National Science Foundation, departments specially volunteering to revamp their recruiting and hiring, etc, etc.

    Finally, it’s just wrong to say that she didn’t hire African Americans. It’s long enough that I’m going to put it in another comment.

  20. Here’s what an African American hire of Kagan’s (Ronald Sullivan) had to say:

    According to some of the media I have read lately, I do not exist. Yet I live, breathe, and pen these words in support of Elena Kagan’s nomination to the Supreme Court.
    I am an African-American law professor at Harvard who was recruited by Elena Kagan during her deanship. I use the word “recruited” decidedly. The dean does not “hire” any professor at Harvard; rather, the faculty votes on prospective members. To be sure, the dean’s role in the hiring process is critical, but she alone cannot hire anyone.
    At the time of my appointment, then-Dean Kagan aggressively recruited me and, in the end, persuaded me to leave my professorship at the Yale Law School in favor of Harvard. How did she do this? Kagan offered me the directorship of the prestigious Harvard Criminal Justice Institute, the nation’s preeminent teaching and research institute on criminal law, and the directorship of Harvard’s Trial Advocacy Workshop, a nationally-known teaching program that brings in some of the country’s top lawyers and judges to train Harvard law students during an intensive three week trial skills workshop. I can report that Elena Kagan used every bit of her discretionary authority to make the offer to come to Harvard far too attractive to turn down.
    Conspicuously absent from much of the public dialogue is the fact that she recruited Professor Annette Gordon-Reed to accept a visiting professorship at Harvard. Professor Gordon-Reed, an African-American woman and award-winning historian, recently accepted Harvard’s offer to join its tenured faculty. … My point here is that the inquiry is quite legitimate, but fairness dictates that we look at Kagan’s entire record.
    … Consider, then, another decision Elena Kagan made as dean. The tradition at the Harvard Law School is that the dean takes the Royall Professorship of Law, which is the law school’s first endowed chair. The chair is named after Isaac Royall Jr., who donated over 2100 acres of land to Harvard in the mid-eighteenth century. But, the Royall family earned its immense fortune from the trans-Atlantic slave trade. When Kagan was named dean of the law school, she broke with tradition and declined to accept this professorship. Instead, she became the first person to hold the Charles Hamilton Houston professorship, an endowed chair named after one of the most prominent African-American graduates of the Harvard Law School, and the architect of the modern civil rights movement. This was a significant statement made by the dean of one of the nation’s top law schools.

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