Amid
rumors that Elena Kagan could be Obama’s Supreme Court pick, some law
professors have gone on record as questioning that potential choice.
Last week, my colleague Guy-Uriel Charles aired some of
his concerns in a
post on Colored Demos, which I gather he then expressed in a joint letter
to the White House. Charles’s primary
concerns were two-fold:
(1) (1) That
Kagan, a long-time academic and a tenured member of two of the nation's top law
schools, does not have a paper record.
(2) (2) That
though one of Kagan's purported qualifications for the Supreme Court is that
she is a consensus builder who broke the hiring logjam at Harvard and made it
possible for Harvard to hire conservatives, her hiring record for women and
minorities while dean has been poor. Says Charles:
How could she have brokered a deal that permitted the hiring
of conservatives but resulted in the hiring of only white faculty? Moreover, of
the 29 new hires, only six were women. So, she hired 23 white men, 5 white
women, and one Asian American woman. . . .
Kagan's performance as Dean at Harvard raises doubts about
her commitment to equality for traditionally disadvantaged groups.
According to a Salon.com
post today by Charles, Anupam Chander (University of California-Davis Davis
School of Law); Luis Fuentes-Rohwer (Indiana University School of Law); and
Angela Onwuachi-Willig (University of Iowa College of Law), the White House did
not respond directly to the letter, “but did provide a defense of the Solicitor
General’s record to concerned civil rights groups, who then made the document
public.” (Salon obtained a copy, which can be found here.) [Update: I've updated the link, which appears to be working now – KDK]. Say the
authors:
The White House says the hiring numbers are misleading
because they do not reflect the number of offers that Dean Kagan made to women
and scholars of color. . . .
In order to assess whether Dean Kagan effectively reached out
to women and scholars of color, we need the number of tenure and tenure-track
offers she made to women and scholars of color. But the White House does not
provide us the number of tenure and tenure-track offers that Dean Kagan made to
women and scholars of color. . . .
In a sleight of hand, the White House instead provides the
statistics for the number of visiting offers made under Dean Kagan. A visiting
offer, however, is hardly tantamount to an offer to join the tenured faculty.
Many visits are not offered with an eye towards permanent appointment. In other
words, "visiting professor offers" without actual offers for
permanent hire do nothing to increase meaningful faculty diversity. . . .
In any event, even if the visiting numbers were probative
they could be seen as undermining the claim that Dean Kagan did what she could
for faculty diversity. Apparently, there were women and minorities available to
serve as visitors, but very few to actually hire permanently. When permanent
offers are made by a law school faculty, it is the dean’s charge to convince
that person to come.
The post is quite long and I’ve included only a few excerpts
here. Obviously, interested readers
should
head to Salon to read the entire post in order to get an accurate flavor of
the critique.
Aren't minorities and women in incredible high demand in the law professor market? I remember a professor at my law school telling me once that the school went out of its way to pursue female and minority \applicants (and especially female minority applicants) – but the most qualified minority and female applicants could be very selective. Couldn't that have played a role at Harvard? (Although I imagine that Harvard, b/c it is Harvard, probably would get the applicants.)
I don’t know that “high demand” is the phrase that I would use, but yes, I think its fair to say that faculty race and gender diversity has been a challenge at many top law schools. But you’re also correct that Harvard has the resources and status to compete well on that front (the letter employs hiring stats at Yale, which has a much smaller faculty, as a comparison point).