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August 27, 2014

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Black Scholars Coming Out Against Obama Nominee Elena Kagan

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I started the day thinking about Elena Kagan, Barack Obama's most recent nominee to the Supreme Court. I was wondering how in the world the president could appoint someone who has no experience on the bench, given the number of highly qualified judges he had to choose from. Then I was informed that this might be a good thing, since the Republicans don't have a judicial record to scrutinize. No problemo.

I then noticed that Kagan has past affiliations with the University of Chicago, Harvard Law School and Goldman Sachs, and that she was appointed to her position at Harvard by Lawrence Summers, the head of the President's Council of Economic Advisors. I was starting to get uncomfortable at that point, because Kagan's appointment would mean that the entire Supreme Court would be filled with Harvard and Yale grads, which effectively says that every other law school in the country need not apply (so much for having a meritocracy). I also saw a very disturbing pattern of cronyism, elitism and Wall Street loyalty that lets us know that perhaps the president of hope and change is not quite what we ordered, making backroom deals with his buddies, all for the sake of keeping American power-locked into tiny social circles.

I lost my support for the Kagan nomination when I noticed her terrible hiring record for minorities while serving as dean of the Harvard Law School. Out of 29 hires the school conducted during her tenure, 28 of them were white. Some argue that this was simply due to a weak hiring pool (as if no black professors want to apply for jobs at Harvard University) or minorities not accepting her offers (why would any black law professor ever accept a job at the leading law school in America?). If you presume that blacks are intellectually equivalent to whites and that the hiring process at Harvard is fair and unbiased, there would be a roughly .2 percent chance that you'd get 28 out of 29 white hires. Yes, that outcome has about a 1 in 500 chance of occurring in a fair hiring system. In other words, Harvard Law School has been found guilty of serious, pathological and chronic racism in its hiring of minority faculty. Kagan was the ring leader in this incubator for racial intolerance. I hope I don't sound too harsh.

I am not sure how bad Kagan's hiring record would have to be for us to call it for what it is: racism. Does the number have to be less than zero before we accept the fact that she and her hiring process at Harvard University are affected by the same social diseases that have plagued our country for the past 400 years? Think about it for a second: Are black people so accustomed to consistent disrespect that we can push ourselves to support the nomination of a person who doesn't feel that there is a black person on earth qualified to receive a tenured faculty position at Harvard Law School? Would she support a black nominee who refused to hire white women? I think not. You've heard some of this from me before, so I digress. One thing I will say, however, is the excuse that Kagan was somehow powerless to decide who to hire in the law school is a comment that would only be made by someone who doesn't understand that deans are almost always involved in the hiring process, and that they can find ways to get what they want. As Solicitor General, Kagan also failed to hire under-represented minorities, and in that case, she was clearly the boss. It's time to stop making excuses and stop racism when we see it.

It turns out that I wasn't the only black scholar who had a problem with Kagan's nomination to the court. Dr. Marc Lamont Hill wrote an interesting piece citing Kagan's inability to fill the large shoes left by retired justice John Paul Stevens. In the words of Dr. Hill, "The choice of Kagan is even more disappointing when examining the other viable option. Diane Wood, a highly respected judge who currently sits on the U.S. Court of Appeals for the Second Circuit, has a long and successful record of defending the Constitution from the onslaught of right-wing jurists. Also, like Justice Stevens, Wood has also demonstrated the ability to persuade conservative judges to change their opinion on controversial cases."

Dr. Wilmer Leon of Howard University has a more balanced view, stating that the verdict is still out on Kagan:

"Over the years, presidents have nominated and the Senate confirmed individuals with an expectation of ideological allegiance or judicial temperament that would serve or advance particular interests. History has shown that once an individual swears the oath, dons the robe and takes their seat a different perspective can emerge."

There are some scholars who've been highly critical of Kagan, primarily noting that her record of not hiring minority applicants gives little reason for us to trust her commitment to fair hiring practices as a Supreme Court justice. Professor Guy Charles at Duke University has taken an especially strong stand, noting that it is unacceptable that her hiring record can be so disrespectful to minorities, and that she can still be nominated to the Supreme Court. According to Charles and his co-authors in an article on Salon.com: "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."

Professor Charles also mentions in the article that he and his colleagues received responses from the White House with data that didn't deny the basic numbers, but attempted to (unsuccessfully) portray Kagan in a different light. I got some of the same data from the White House in my in-box, and so did nearly everyone else who might speak on the issue. One of the things I can't stand about politicians is that rather than actually making things right, they would rather try to talk you into believing that the wrong thing is the right thing, or that one issue should be traded out for another. I simply can't do it, and it must be called what it is: When you hire 29 people from a highly diverse and well-qualified applicant pool, and none of them are black or brown, then you have either pursued a racist hiring agenda or you have perpetuated and refused to challenge an undeniably racist system of hiring. Either way, you have failed America and do not deserve a spot on the highest court in the nation. If Kagan doesn't have the intellectual capacity to convince her colleagues at Harvard that 29 out of 29 non-black or brown hires is an embarrassing outcome, then I doubt she can convince her fellow justices to support civil rights for people like me.

When it comes to the Supreme Court nomination of Elena Kagan, I simply cannot get on board.

Dr. Boyce Watkins is the founder of the Your Black World Coalition and the author of the new book, 'Black American Money.' To have Dr. Boyce's commentary delivered to your e-mail, please click here.

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