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.

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.

Further Thoughts on Networks, Connections, and "the people we know"

During their testimony this past week in front of the House Appropriations Subcommittee, Justices Thomas and Breyer conceded that getting a clerkship on the Court comes down to a great extent to a candidate's networks and connections, to "the people you know," in the words of Justice Thomas.

I wonder if the implications of their concessions was lost on the justices, especially Justice Thomas.

Whatever happened to "merit?"

This should not be hard question, particularly for Justice Thomas. The issue of law clerk diversity should be open and shut for him: I only hire on the basis of merit, he should have said, the same way that Michigan law school should admit its students and New Haven should promote its firefighters. Instead, he chose to talk about the pool of candidates and how he basically does the best he can under the circumstances.

In fairness to him, it may be that he was simply pandering to the subcommittee, telling its members what they wanted to hear. But that seems unlikely. I really think he was being honest. For a telling example, consider the case of Duke Law School and its most recent dean search.

Think first about what the concept of merit would entail in such a search. What does it mean to deserve a position of dean at a major law school, not to mention an elite one. Strong academic credentials? Strong fund-raising record? Affability? Good looks and charming personality? All of the above? I don't really have a definitive answer, and anyone who has been part of a dean search knows full well that faculties don't have one either. They simply hire the person they like, or the candidate who feels right, or whatever. They look to the future and hire the candidate they think is best positioned to get them there. Hardly an exact science.

A little over two years ago, Duke Law School found itself in this position. Their three finalists were Erwin Chemerinsky, then a faculty member at Duke and presently dean at UC-Irvine; Kyle Logue, professor of law at Michigan Law School; and David Levi, Chief Judge of the United States District Court for the Eastern District of California.

For someone looking on the outside, the choice seems pre-ordained. But rather than choose Chemerinsky, the law school chose Judge Levi. A surprising choice, it would seem. Upon close inspection, not so much.

Judge Levi is the son of Edward Levi, former attorney general under President Ford, former President of the University of Chicago and former dean of the Chicago Law School. Without question, his credentials are impeccable, and by no means do I intend to impugn them: he is a magna cum laude graduate of Harvard College, graduate of Stanford Law School, where he graduated Order of the Coif and was President of the Stanford Law Review, and clerked for Justice Lewis Powell. Under any measure, Judge Levi is qualified to do whatever he wants in life, including lead an elite law school. But just think: when was the last time you heard of a federal judge leaving the bench to become dean of a leading law school?

In a world where connections, networks, and "the people you know" make all the difference in the world, the appointment of Dean Levi was a masterful one. Could it be a coincidence that Duke law is sending three of its graduate to clerk on the Supreme Court the upcoming term?

Is it also hardly a coincidence that Elena Kagan and Diane Wood, former professors at the University of Chicago Law School -- where President Obama once taught as a senior lecturer -- are leading candidates to replace Justice Stevens.

The bottom line is simple: in a world where networks and connections matter, we already know who will not get jobs and gaudy appointments to important places. We can focus on Mr. Ricci and Ms. Gratz all we want, but the world that conservatives on the Court want us to believe exist, a world where hard work and individual effort will get you places is simply not the real world. In the case of Justice Thomas, it is particularly galling that not only did he get ahead in the world through networks, his race, and the people he knew, but he also fully recognizes and acknowledges the realities of the world. So, when you read his next opinion hiring, admissions, or equal protection in general, keep his testimony from last week in mind. The man is either inconsistent, not smart enough to see the inconsistency, or a hypocrite.

Pick one.

Sports, MLK, JR, and the Hiring of Derek Dooley

Late last week, the University of Tennessee hired Derek Dooley as its head football coach. Coach Dooley replaced Lane Kiffin, who left the university to become head football coach at the University of Southern California.

Today is Martin Luther King, Jr. day. And for some strange reason, I cannot stop thinking about the connection between Dr. King and the hiring of Coach Dooley.

Then it hit me.

Too often, we think of sports as a diversion, as a way for us to escape from our everyday problems. When we sit in front of the television to watch our favorite teams, we don't like to think too much about anything. We just like to root for our teams.

But Dr. King knew better. Sports were far more important than that. Not only are sports tremendously powerful both politically and symbolically, but the athletes themselves are influential role models for the youth of the nation. More importantly still, Dr. King understood that the athletic arena was more than a place were sports took place, but an important window to issues of racial justice.

This is probably why the picture of a black player, Terrence Cody, blocking a field goal at the end of the game to preserve an Alabama victory over Tennessee, stayed with me for as long as it did. This is the same state that gave us George Wallace, he of "segregation now, segregation tomorrow, segregation forever" fame. The University of Alabama is also the institution where Wallace made his defiant stand against federal troops and racial integration. To see a black player lead Wallace's old university to victory is, to put it bluntly, jarring.

This is also why I pay close attention every time a football coach is hired and a search begins for his successor. In the National Football League, the so-called "Rooney Rule" requires teams to interview minority candidates during the search process. This rule has led to the hiring of many black coaches since its inception, leading some to question whether the rule is "still relevant." As expected, teams have learned to live with the rule, but also to work around it. It is now commonplace for teams to conduct "sham" interviews, that is, to interview black coaches they have no intention to hire, in order to comply with the rule. This is exactly what happened during the last two searches, by teams in Seattle and Washington D.C.

This brings me back to the hiring of Coach Dooley. Who is he? He happens to be the son of legendary Georgia coach Vince Dooley. Prior to his hiring by Tennessee, Derek Dooley coached at Louisiana Tech, where he complied a less-than-stellar record of 17-20. Nothing his record suggests he will be a great coach or a mediocre one. Nothing. Yet the University of Tennessee tagged him to lead the Volunteers for next year and beyond.

This hiring is a great example of the hypocrisy found within the affirmative action debate. Critics of affirmative action argue that decisions should be made on the basis of merit and nothing else. Unfortunately, credentials are only questioned when they involve candidates or applicants of color. Derek Dooley can be hired by a major football program and not a critic is found. Before Dooley, Tennessee hired Lane Kiffin, whose only head coaching experience involved a disastrous tenure coaching the Oakland Raiders. In fact, some commentators have pointed out that Dooley may be a better hire than Kiffin was at the time. How is that for setting a low floor?

Today, major college football boasts only four black head coaches. This is in a sport where, in 2008, 50% of the players in Division I-A, 25% of the assistant football coaches, and 13% percent of the offensive and defensive coordinators were black. A pool exists, in other words, for Athletic Directors to give opportunities to black candidates. Instead, the Kiffins and the Dooleys of the world continue to move forward. `

This is nothing, I suppose, that a good ol' proposition could not cure. If only we could find Ward Connerly when we needed him.