If Elena Kagan were a liberal legal hero, with a long record of reaching the correct conclusions from the left-wing perspective, no one on the left would care about Kagan's hiring record as Dean of Harvard Law School. That hiring record, by all accounts, included an almost unprecedented commitment to intellectual diversity, including the hiring of several prominent conservative legal scholars.
But whatever Kagan is, she is not a liberal legal hero. In fact, one of the main liberal criticisms of Kagan is that her record is mixed, and the lack of a broad written record makes her too much of a stealth candidate. Kagan could be David Souter in reverse. Kagan's previously stated positions, such as that there is no constitutional right to same-sex marriage, inflame liberals who are looking to this pick as the chance to get a full-fledged left-wing ideologue on the Court.
If that were where the criticism focused, it would be fair game. Conservatives have exactly the same concerns, just from the other perspective.
But four law professors have decided to accuse Kagan of racism in her hiring of tenured and tenure-track faculty. These professors don't say "Kagan is a racist" so bluntly. But that is the thrust of their argument, couched in terms of lack of commitment to diversity:
As proof that that these statistics reflect not the marketplace or the pool of candidates or the specific qualifications of the specific hires or the institutional topical needs or the other myriad of factors which enter into faculty hiring, the authors point to Yale Law School and liberal favorite for the Supreme Court, Diane Wood:
When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white -- a statistic that should raise eyebrows in the 21st Century....
The question raised by Kagan’s hiring record is quite simple: what accounts for it? The inevitable conclusion is that gender and racial equality was not a pressing agenda for then-Dean Kagan.... That record raises a significant question about her willingness to go to bat for racial and gender equality.
There is so much wrong with this analysis, it's almost hard to know where to begin.
For those who think that more women and minorities qualified to serve on the Harvard Law faculty were simply nonexistent, one need only look at Harvard’s primary rival--Yale Law School. There Dean Harold Koh led the law school during almost the same period (Dean Koh, from 2004 to 2009, and Dean Kagan, from 2003 to 2009). Dean Koh hired far fewer faculty members--just ten--but he still managed to hire nearly as many women (5 of 10 at 50 percent), and just as many minorities (1 of 10 at 10 percent) as Dean Kagan.
Yet another comparison seems appropriate: A knowledgeable source tells us that Seventh Circuit Judge Diane Wood has had a splendid history of hiring women and minorities as law clerks.
First, the law of small numbers plays a factor. Yale hired just one minority law professor; had Yale hired none, would that make Yale insensitive? Or if Yale had hired two, would that make Yale strongly committed to diversity? As to Diane Wood, the authors take it at face value based on a "knowledgeable source" that Wood had a "splendid" history of hiring minorities. What numbers would constitute "splendid" as opposed to insensitive? In fact, what are Wood's numbers, and why does Wood get a pass while Kagan does not?
That is the problem when dealing with arguments based on results. And these law professors acknowledge, at least implicitly, the weakness of their argument by demanding information and documents on Kagan's outreach, which candidates were available, and so on. The professors want to conduct what we commonly call "trials within trials" whereby Kagan would be required to justify each and every hiring decision or non-decision over a multi-year period.
And where would that get us? Nowhere.
The fact that the authors fail to address is that low levels of minority law professor hiring is pervasive, particularly at elite law schools.
A recent study was released, examining the 2004-2005 hiring cycle, which showed that minorities were significantly overrepresented in non-elite law school hiring, but seriously underrepresented at elite schools. Similar studies, for example by the American Association of Law Schools, have shown that despite substantial efforts by law schools, the percentages of minority professors lag.
These studies have shown that while overall percentages of minority hiring lag, minorities actually have a higher success rate (meaning that the percentage of minority law professor candidates who succeed in getting hired is higher than for the pool of white male candidates).
The fact of the matter is that law school hiring is a bizarre world in which candidates have absurdly impressive credentials and the competition is fierce. The Big Rock Candy Mountain: How to Get a Job in Law Teaching describes the difficulty for entry level candidates. (This bizarre world is one I never faced personally because teaching is a second career for me and I am a "clinical" professor, meaning that I teach not only in the classroom, but focus on helping students transition to practice.)
What no one disputes is that law schools make tremendous efforts to hire minority candidates, but that the overall percentages lag relative to the population. But that also is true for law school admissions, where the percentages of minority students are dropping. The reasons are complex, and not subject to the sort of statistical oversimplification being used against Kagan.
Needless to say, the opponents of Kagan on the left have seized on this complaint by the four law professors. It will be interesting to see if the level of attack holds up once Kagan is the nominee.
So why am I defending Kagan?
Because the line of attack being used by the left against Kagan is very familiar. Facts are twisted, conclusions are drawn, and charges are made of racial insensitivity or outright racism, for political purposes.
We see this all the time, but usually the targets are conservatives, or health care protesters, or Tea Party followers.
I definitely will not say, "first they came for Elena Kagan," because she is far from first.
There is a long line of decent, fair-minded, non-racist people who came before her.
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