Race, Hiring and the Lessons of Becoming Justice

From the moment that stories about the inevitable nomination of Solicitor General Elena Kagan appeared on blogs everywhere, a picture soon began to emerge.  For me, however, it was not the picture her supporters are trying to paint for her.  For the more I read, the more she looks like the anti-Sotomayor.

In order to make sense of this point, consider how easily the language of diversity has been deployed in the context of Justice Stevens' replacement. To Sherilynn Ifill, for example, "it seems so small-minded, to rush forward thinking about replacements without actually taking stock of what's missing from the current Court, and how President Obama can use his appointment to enhance the quality of the Court."   Tim Egan similarly wrote that "[p]erhaps it is time for one more bit of entitled diversity: a seat reserved for someone who didn't go to Harvard or Yale."  This was not to say, Egan made clear, that moving away from Harvard and Yale would "change the troubling direction of a corporatist court.  Rather, "new voices, schooled by professors, from locales where life isn't always a bubble of fellow geniuses, is the kind of rejuvenation this Ivy alumni association needs." It was in this vein that Nina Totenberg noted that, with Justice Stevens' retirement, "it is entirely possible that there will be no Protestant justices on the court for the first time ever."  Gender diversity is also trumpeted as a "major consideration" and one of President Obama's goals as he decides on the nomination. 


A Kagan nomination would fit many of these diversity goals, and no doubt this is one of the main reasons that she is one of the leading candidates for the nomination.  For one, she has limited judicial experience and would bring to the Court her experience as dean of a major law school and as an integral member of the executive branch.  She is also a woman, which many reports assert is an important value for Obama.  Rightly or not, many supporters argue that she would bring her political experience to bear in forming coalitions within the Court, leading Linda Monk as far as to brand her "the next Earl Warren."


The main reason Kagan is on Obama's short list, I would suggest, lies elsewhere -- in Hyde Park, Chicago, to be exact.  That is to say, it is hardly a coincidence that General Kagan and Diane Wood are on Obama's short list.  Unquestionably, they are both smart, even brilliant women, from elite law schools and with terrific credentials.  No doubt they would make terrific justices.  The question for purposes of a Supreme Court appointment is, what separates them from the rest?  From all their qualities, one rises above all others: they taught together with then-lecturer Barack Obama at the University of Chicago Law School during the late 1990's.


This is the point often made by supporters of affirmative action about access to opportunity. Or, as Justice Thomas told a House subcommittee a few weeks  ago, "a lot of our hiring depends on people we know."  The same is true not only of appointment to the Supreme Court, but admission to higher education or hiring at select law schools or elite law firms.  In the context of the choice now facing President Obama, only a select few, and a privileged few at that, have had access to the President.  And access, like it or not, is the name of the game.


This reality is what makes the Sotomayor nomination so remarkable.  From all accounts, she appears to have a complete disconnect from the corridors of power and the networks that take people to positions of power and prestige inside the Beltway.  That she made it from the Bronx all the way to her seat on the Supreme Court is a remarkable achievement.  It is also an achievement due in great measure to affirmative action and the idea of diversity as a public good.  That Justice Sotomayor is qualified is unquestioned; yet so are many others.  Without diversity, however, she would never stand a chance against people with far better connections and support networks.


This is why, when I look at General Kagan, I see the anti-Sotomayor.  I see a connected Beltway insider getting ahead on the strength of her connections and the people she knows.   After all, how many of us can ask Walter Dellinger and Larry Lessig to write character reference letters on our behalf?  


This is what makes a Kagan nomination the paradox that it is.  She is touted and benefits from the very diversity rationale that is generally deployed to help candidates without her connections. 


Lest I be misunderstood, this is not a debate about Kagan herself, a person who I have no doubts would make a fine Justice.  Rather, it is an indictment on the way we carry on as if "merit" decides who goes to Harvard, who works at O'Melveny & Myers, or who teaches at Chicago law.  That General Kagan was dean at Harvard Law, and that she hired only one single scholar of color during her tenure there, tells you a great deal of information about her social networks.  


When you look to how few scholars of color are hired by elite law schools, many people see this as a reflection of the dearth of qualified candidates of color.  This is the quick and dirty defense of General Kagan's hiring record as Harvard dean. Maybe so.  One response points to recent conferences at Duke Law and Cardozo Law, hosted by Guy and Michelle Adams, respectively, where scholars of color made up a majority of the presenters.  These conferences tell me that those who cannot find talented scholars of color simply don't know where to look.

In light of the availability of extremely qualified scholars of color, Kagan's hiring record tells you that, in the absence of a strong commitment to diversity, people of color simply need better networks.