Why Elena Kagan's Hiring at Harvard Matters

In a post on the widely-read SCOTUS blog, under the topic of "issues that will be mentioned in the Kagan nomination but won't get traction," Tom Goldstein writes,

Race in Harvard’s faculty hiring under Kagan. Some law professors complain that the faculty hires at Harvard during Kagan’s tenure were mostly white. However unfair it is that this issue could get traction, the truth of the matter is that the suggestion that a progressive woman who served as a dean of Harvard Law School harbored some racial bias will not go anywhere. Conservative opponents will also hesitate to legitimize arguments like that.

I like Tom Goldstein, and his move here is a familiar one, but it is wrong. To see how silly this move is, it is tantamount to saying that we called Kagan a misogynist because of the paucity of women hires under her deanship at Harvard. Since I was among the "complain[ants]", I'll take a very quick stab at explaining why Kagan's hiring record matters and why our complaint has nothing to do with intentional racial bias.
Our argument about Elena Kagan was fairly clear: she hired 32 tenured and tenure-track faculty but only one of whom was non-white. Of the 32, only seven were women. We also provided an explanation for the almost all-white and predominantly male hiring: hiring a diverse faculty along gender and racial lines was not a priority. We did not say (or imply) that Kagan was a racist; in fact, we said, quite explicitly, that racial (and gender) diversity was not a pressing agenda. Again, this says nothing about bias. As a point of comparison, our inquiry about Kagan is no different from the questions on law clerk diversity that Supreme Court Justices routinely face at the Supreme Court's budget hearings. When Congressman Jose Serrano pressed Justices Breyer and Thomas on the lack of racial diversity in law clerk hiring, was he calling them racists?

Notwithstanding my respect for Tom Goldstein, he did not fairly characterize our claims. An easy way to dismiss racial concerns, particularly when they are raised by people of color, is to characterize the concerns as crying racism (or complaining about racism). Because we all know what racism is and what racists look like -- something resembling the Ku Klux Klan -- the complaint (and complainant) seems silly. No serious person can accuse the progressive woman Dean at Harvard Law School of racism. The focus is turned from Kagan's hiring to the silliness of the complainants. Consequently, there is no need to focus on the substance of the complaints. As Goldstein says, it is "unfair . . . that this issue could get traction."

Because Kagan does not have a record and because her tenure as Dean is offered as one of her qualifications for the Supreme Court, it is more than fair (especially if you're a person of color or you care deeply about racial inclusion) to ask where racial inclusion figures in her judicial philosophy. Kagan's hiring at Harvard is one of the few data points that we have on how she might think about racial inclusion. That's the basis of our complaint. The indication that we get from that data point is that at the very least she has not been a leader in supporting racial inclusion. For us, it is not enough that she is not a conservative. Many of us know more than a few liberals who are squeamish about racial inclusion. These are liberals whose positions on race are not very different from those of conservatives or Republicans. Compare for example Kagan's hiring record with that of the progressive stalwart Erwin Chemerinsky, Dean at UC Irvine. You only need to examine his hiring practices to know that this is a person for whom racial inclusion is an important priority. Thus, this "issue" should matter for people who care deeply about racial inclusion.

Let us now put this in the context of constitutional doctrine by taking one case as an example. In the next year or two, it is likely that the Supreme Court will hear at least one case on whether statutes that disenfranchise felons are compatible with the Voting Rights Act. If you are a racial progressive there is doubt about your views: these laws are incompatible with the Act. If you are a racial moderate, you are likely to conclude that racial inequality is not inconsistent with the Voting Rights Act or the Constitution as long as there does not exist intentional discrimination. The problem is that we can only guess where Kagan is on these issues. The data points that we have, however, are not encouraging. These are legitimate questions to raise about someone nominated from our side for a lifetime appointment.