The responses are not surprising: for example, the pool of candidates is shallow; Kagan is deeply committed to racial diversity and showed it in myriad ways; she in fact hired scholars of color for clinical positions; and besides, it is a well-known fact that deans do not have sole control of the hiring process and, in fact, have much less influence than our argument ascribes to them.
These reponses highlight some of the lessons of the Kagan nomination, namely, the power of networks and the social construction of merit. In the context of the critique of Harvard's hiring record under Kagan, it is important to understand how faculty hiring in fact works, that is, how faculties make decisions among candidates with an array of competing qualifications. It is important to understand, in other words, why Kagan's hiring record at Harvard matters.
Here is the faculty hiring process, in a nutshell. The candidate pool itself is quite large, and it is composed of people with all kinds of qualifications and life experiences. Some have high grades, others have publications and extensive work experiences; some have fancy clerkships, others have doctoral dissertations; some have influential professors willing to speak on their behalf, others have family ties and connections. No attribute trumps any other; akin to Gestalt theory, it is up to the individual committees to decide for themselves what factors will carry the most weight, or which set of attributes will prove decisive.
In other words, too often faculties are inclined to see whatever it is they wish to see. For some candidates, their publication record is paramount; for others, their grades, or their fancy clerkships. For some candidates, their job talks will fail miserably and become insurmountable obstacles, but for others, curiously enough, bad job talks are easily ignored. Some candidates present works-in-progress and their candidacies are quickly brought down during the question and answer portion of the talk; yet others are offered helpful hints as they similarly present work-in-progress. All in all, it is often hard to tell why one candidate is hired while a similarly situated candidate is not. This is not to say that in some cases, sometimes many cases, everyone agrees on the basis of the "objective" criteria that the candidate is strong or weak. But too often, the "objective" criteria is not predictive. Faculty will examine the same "objective" criteria but read into it what they would like.
This is why, seen in its proper context, Kagan's hiring record is so troubling. Once we understand the faculty hiring process for what it is, a lack of minority and women hires -- to the degree witnessed by Kagan's Harvard -- is difficult to explain. I can only explain it one of two ways. First, one might argue that qualified women and scholars of color are simply non-existent, and so Harvard did not hire any because none exists. Guy branded such a view "a racist and sexist statement," and I agree. This is particularly troubling because qualifications are, as suggested above, socially constructed. A qualified person is only "qualified" because we deem them so.
Nate Silver offered a second explanation:
Unless you do want to accuse her of discrimination, [Kagan's hiring record] 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.This begins to look like a powerful explanation for Kagan's hiring record. I would agree with Silver if I believed in a world where objective evidence exists, and committees can "evaluate [it] objectively." It just so happens this is not the real world of faculty hiring. The concept of "merit," as deployed in this argument, is only a distraction.
Herein lies the biggest lesson from the Kagan nomination, the concept of vision. I mean this in three ways. For President Obama, this nomination underscores his vision of privilege and social networks as the way by which people advance in the world. Recall in this vein Justices Thomas' view that " a lot of our hiring depends on people we know." The same is true for an appointment to the Supreme Court, or becoming dean at a major law school. This is what disappoints so many people about President Obama. This is not the vision they thought they were voting for, the kind of change they could believe in, but far from it.
This is also a lesson about the way people of color and whites often reach different conclusions from shared facts. This is what Don Kinder and Lynn Sanders refer to when they write that we are "divided by color." For people of color, any hiring process where thirty-two hires result in the hiring of one scholar of color is, quite frankly, an unacceptably flawed process. This is especially true for anyone who has ever sat on a hiring committee. For whites, the same process is easily explained a number of different ways and raises nary a concern. The contrast is stark, yet also quite real. One is a vision of racial justice informed by the lived realities of being a person of color and framed by the notion of merit as a social construct; the other is a reality grounded in privilege and blind to concerns of racial justice.
Kagan's vision of racial justice could not be clearer. She made amply clear through her hiring and her leadership what kind of institution she wished Harvard to be. This is why people of color ought to be nervous. Does this tell us anything about how Justice Kagan would understand the case of Lilly Ledbetter? Or how she would respond as the Court continues its march towards a colorblind society? Or how she would approach the inevitable challenge to the Voting Rights Act looming in the near future?
I hope not. And yet, communities of color are not holding their breath. It is hard to blame them.