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Kaganís Affirmative Action Achilles' Heel

New America Media, Commentary, Earl Ofari Hutchinson Posted: May 10, 2010

Supreme Court nominee Elena Kagan will plop an issue back on the nationís table that hasnít been seen or heard from in what seems like ages. And thatís affirmative action. Even before her nomination, the word furiously circulated in some circles that during her six-year tenure as dean of Harvard University Law School, Kagan had an abominable record on recruiting and hiring minority professors.

At first glance, her record indeed looks atrocious. Of the law schoolís 29 new hires, 23 were white men, five were white women, and one was an Asian-American woman. There was not one black or Latino professor in the bunch.

When the dismal figure was released, the White House quickly pushed back. It issued a detailed fact sheet that essentially said that her zero-hire of a black or Latino faculty member was grossly misleading. In fact, the White House said, Kagan had offered several African-American and Latino candidates ďvisiting offers,Ē or invitations to be visiting lecturers. Thatís not the same as a permanent offer for a faculty spot. But the inference was that a visiting offer, if accepted, could lead to an offer of a permanent faculty position. That didnít happen. The visiting offers were not accepted. That in itself is not a prima facie case to say that Kagan deliberately pushed diversity to the back burner at Harvard. Or even that she did not make a sincere effort to recruit minority faculty members. There are always factors, big, little and unseen, in the business of faculty hires at major universities.

But Kaganís record on minority hires still stands -- 29 faculty hires, and no black or Latino hires. This is hardly a moot point. There are two major reasons that President Obama nominated Kagan. The first is pragmatic politics. She already went through the confirmation wars as the administrationís solicitor general and is widely considered a consensus-building, judicial moderate. Thatís least likely to ignite a prolonged and divisive fight over her nomination. The second reason is just as crucial. She is supposedly the breathing embodiment of diversity.

At a presidential campaign appearance in 2007, Obama was emphatic in demanding that a Supreme Court pick be someone who had empathy for the poor, minorities, disabled and elderly. In the Senate, he ferociously attacked and voted against the confirmation of Bush nominees John J. Roberts and Samuel Alito, again precisely because they were hardly cheerleaders for diversity. In their views and rulings, they were hard-line conservative ideologues who did everything possible to subvert diversity. Obama promised there would be no ideological litmus test in his court picks. However, diversity seemed clearly a prime consideration in his choice of a high court judge.

This is not an academic balancing act to get the requisite number of black, Latino and women justices on the court. The issue of diversity is a fierce battleground in law and public policy. There are countless cases that invariably wind up contested before the high court on gender, age, disability, racial discrimination, abortion, the death penalty, prisoner and victim rights, and corporate practices. The issues are highly complex, raise important legal and social questions, and are always contentious. Kagan will be in the thick of the court debate on these cases for years to come.

Conservative judicial watchdog groups know the importance of the diversity battle in court rulings better than any other group. They examine all potential Supreme Court picks, and they wage endless wars in their journals, news articles, blogs, and position papers on the need for strict constructionist, diversity-neutral judicial picks. They rush to the barricades in their fight to insure that high court picks will not have views that tilt toward a bias for minority rights. They rally public opinion and Senate Republicans to battle against any such judicial pick.

The irony is that Kaganís blurred record on diverse faculty hiring at Harvard Law School may actually keep her out of harmís way from conservative critics -- at least on the issue of affirmative action. This should trouble liberals and progressives who expect President Obamaís high court nominee to take a firm stand on the one issue that matters to them, and to the president, and thatís a solid commitment to diversity. The jury is still out on Kagan on this one.

Earl Ofari Hutchinson is an author and political analyst. His new book is How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press).

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