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Saturday, May 8, 2010

So Why Am I Already Defending Elena Kagan?

Strange. I'm not sure I support Elena Kagan for the Supreme Court, assuming she is the nominee, but I'm already finding myself having to defend her.

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:

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.

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:

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.

There is so much wrong with this analysis, it's almost hard to know where to begin.

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.

Related Posts:
Roll The Dice On Kagan?
Kagan Rumors Expose Left-Wing Hypocrisy and Homophobia
Gay Marriage The New Nomination Litmus Test

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  1. Lots of luck with this one. The Left is not going to be happy with any nominee noticeably to the Right of Josef Stalin.

  2. I agree, Professor, the lefties' "she-didn't-hire-the-required-quota-of-people-of-color-and-women" argument in this context amounts to saying she's a racist. One could bask in the schadenfreude of watching PC activists devour their own, but it's critically important to call out the makers of this sham argument in every instance. It's really disgusting.

    Maybe Kagan can recoup, though, if here fans can promote her as the first gay Justice. Or better yet, what about the only represntaive of fat people -- clearly an increasingly victimized group what with unregulated school snacks and McDonalds run wild!

  3. I like her because she's Jewish. We NEED her. She is largely a connected part of the fabric of this administration, one of their own, which hopefully gets her in. If they cannot stack the bench with another Catholic or Christian, then PLEASE make it this Jewish Woman.

    We need all the help we can get when the unspoken enemy among us shows itself for what it is, just like in Europe, they are already here making us S.T.F.U. for THEIR RELIGION !!!!!

    Our laws are all we have left. They institute their law here, we are done.

  4. It's from Salon. It's automatically void of reason.

  5. John, we should resist the schadenfreude urge. We are certain to get a liberal nominee and if it is true, as Prof. Jacobson says, that she has shown dedication to intellectual diversity, then she is a rare liberal indeed and probably the best we could hope for.

  6. The question is whether the nominee to SCOTUS is a recognized legal scholar, not whether they give in to pressure to hire someone based on their sex or skin color. I think Elena Kagan is what we need. Someone whose allegiance is to the law. Someone once said in defense of liberty "I am for the law," don't think he served as a judge ever either.Think he may have hand a hand in how we became a nation though. (For those that don't know, it was said by John Adams)

  7. Hello william

    Unfortunately, the debate itself has been corrupted because all of us are looking to non-legal criteria in hiring. "Stealth" candidates are now the norm because one can't be selected for the court if you have an identifiable track record. This automatically means you pick people and "guess" what they stand for. Also, the courts are now subject to "diversity" so you have to pick based on personal qualities such as Sonya Sotomayor's "compelling" story and her "wise Latina" status. Here we are reading tea leaves to the extent that her hiring record is being studied instead of her judicial record, which is sparse.
    Finally, William, you are our guide through the ticket and you are looking at her with a hint of acceptance for two reasons. 1) she appointed conservatives to positions which implies real tolerance and fair mindedness and 2) "They" are lukewarm at best which means she isn't one of "them."

    In other words, we are in "Bizzaroworld" where the candidates are not honest and fair thinking candidates with long and available records chosen not for their ideological bent but for their judicious, fair and truly open-minded judicial demeanor and devotion to the honest interpretation of the law. Instead, both sides try to put one over on the other by finding a congenial thinker and disguising them just enough to get them past the hacks in Congress. Not a recipe for judicial excellence.

  8. Proof positive the left doesn't like her as a candidate are the assortment of gruesome pictures HuffPo chooses for their posts about Kagan. Unless this is some elaborate head fake rom the left hoping to trick the right, I would say they genuinely fear she is not one of them.

    I am inclined to think we will not get anyone more open-minded from this administration. Liz Cheney had her as a professor and spoke quite highly of her fairness. Does anyone honestly think we are going to do better? All that said, however, I will be surprised if Obama actually chooses her. I find it hard to imagine we will get that lucky.

  9. Salon is the on-line comedy show that recently noted that newspaper "prescriptions" are going down while free internet news organizations are growing by leaps and bounds.

    Just what the doctor refused to order?

  10. I continually am impressed and appreciative, Professor Jacobson, as bloggers of your caliber are extremely rare. I agree with you, I certainly don't know if I would support Kagan, in my case, because I (and I am a former lib dem, now independent) simply don't trust any of them.

    There are obviously many others who are truly terrifying prospects for the SCOTUS, but also the fact that the game, irregardless of who is selected and confirmed, has changed, given that Obama, who is, in my not so humble opinion, unstable, is in charge.

    There is so much silence in the face of what is obviously an abuse of power... that is what is troubling me right now.

    Any way, I've been reading your blog, every day for months now, and this is my first time commenting. Thank you for all you do.

  11. As an outsider, I would say that a person who has not been a justice should not be appointed to the Supreme Court. Of course I am basing that on the Australian experience. You do not get to the High Court of Australia if you have not served as a justice in a lower court.

    The WH is very sensitive about Elena Kagan being a lesbian. What is so funny is that Kagan herself has not denied that she is lesbian. It makes no sense for the WH to go on the defensive like that. Perhaps they are concerned about the reaction of one sub-group of Christians.

    However, it should be a case of who cares when it comes to something so personal. Any probing should be about papers that she has written... and where she stands on things like upholding the Constitution. That is what is really important.

    Why I would not support Elena Kagan, or at least hope that she is not appointed will depend upon her response to something like Abominablecare which is clearly unconstitutional.

  12. Second try:
    Elena Kagan is the Harvard Law School dean responsible for preventing US Military JAG recruiters from coming on campus to recruit lawyers.

    Tell me again why you're defending her? This woman is a fascist and should never be within a mile of a court, most especially the USSC.