With Friends Like Randall Kennedy, Elena Kagan Doesn't Need All the Enemies She's Going to Have

In "Letter from Birmingham Jail," Martin Luther King criticizes white Southern ministers for responding to the civil rights movement in Birmingham with "pious irrelevancies and sanctimonious trivialities."

Unfortunately for Kagan, that's pretty much what she got from Randall Kennedy's effort in HufPost to defend her record on minority hiring as Dean of Harvard Law School. Kagan's problem is that Harvard only hired only hired 7 women and one member of a racial minority in the 32 law school searches that occurred while she was Dean from 2003 to 2009.

Maybe Jesse Helms and Strom Thurmond would approve. Otherwise, these numbers look bad. By not hiring any black faculty, Harvard Law is implicitly claiming that there were either zero or one black legal scholar who was qualified for either entry level job offers or senior appointments. That's barely tokenism. And the situation with women isn't much better?


By way of comparison, my former political science unit had ten searches and had a fairly even distribution between white males (2), African-American males (2), and white women (3). We weren't exactly paragons of diversity and presently we're back to three white males. But we were much more effective than Harvard.

However, perhaps Harvard's poor minority hiring record doesn't reflect on Elena Kagan herself. Maybe Kagan didn't have very much influence over hiring new professors or maybe there was some sort of institutional priority to hire for legal fields in which women and African-Americans were severely under-represented.

That's the question that Prof. Randall Kennedy tried to address in his op-ed and there was undoubtedly some hope that Kennedy's being black would give him more credibility on the issue.
But it's hard to be very credible while being sanctimonious and irrelevant.

According to Kennedy, Kagan aced her "race relations law" class from Kennedy as a law student and went on to clerk for Thurgood Marshall before settling in as a law professor back at good ol' Harvard.


Good for her.


Kennedy also claims that Kagan is "committed to a vision of racial inclusiveness that reflects the best of our national traditions." That sounds great if Kagan was also committed to using her position to further that vision. Otherwise, Kagan's vision of racial inclusiveness is more of a "pious irrelevancy" than anything else. Indeed, if Kagan did have a "vision of racial inclusiveness," that would increase her responsibility to ensure that Harvard Law School hired a diverse faculty and magnify her failure to do so.


Kennedy goes on to claim that Kagan didn't really have the power to do much about minority hiring anyway. "First, it is mistaken to suggest, as some have, that the Dean of Harvard Law School is responsible for all that happens or does not happen with respect to hiring."


Perhaps she wasn't responsible for "all" that happened in relation to hiring. But Kennedy makes it clear Kagan had real power rather than just a positionk. He goes on to say that "the Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean's blessing." It also turns out that Dean Kagan was a member of the "Entry Level Appointments Committee" that Kennedy himself chaired.

In other words, Kagan had real responsibility rather than merely formal responsibility for the lack of minority hiring.


As Dean, Kagan was much more worried about ideological diversity than racial or gender diversity and invested a great deal of her credibility in hiring conservatives like Jack Goldsmith. Like a lot of moderate Democrats, Kagan seems to be more interested in conservative ideology than the various ideological positions of the left. There was certainly an argument for this during the Bush years. Given the tilt of Bush administration judicial appointments to the right, it could be claimed that Harvard could not adequately train lawyers unless they were exposed to enthusiastic representations of conservative views. Likewise, it might be argued that an agenda to hire conservatives would bias the hiring process toward white males like Goldsmith because relatively few female and African-American lawyers are conservative.


In other words, hiring conservatives was not necessarily a bad thing.

However, feminism and African-American perspectives are also important to American law and are becoming more important as more women become lawyers and the American mainstream has been transformed in the ways needed to better integrate African-Americans. Kagan's focus on conservatives tends to distort the law by narrowing the scope of theoretical conflict to white male liberals and white male conservatives with only token representation from lawyers like Kagan and Kennedy.

In practice, Kagan's "vision of racial inclusiveness" boils down to a white male cockfight between liberals and conservatives.


Kennedy seems to recognize that Kagan's record of concern for minority hiring is still thin. So he rolls out the "santimonious triviality" of citing that Kagan supported fellowship programs for minority law students.


As if that really mattered to the issue of faculty hiring.


I basically support Kagan. In fact, I highly doubt that Obama could have nominated her at all if Kagan in fact had proved successful at diversifying the Harvard Law School faculty. But she's starting to look like a lightweight who's main skill is the politics of personal relationships.

Still, Randall Kennedy's defense makes Elena Kagan look worse than she probably is.


Maybe Kagan needs to find smarter friends than she had at Harvard Law School.