Kagan Criticized For Lack of Diversity At Harvard

Supreme Court nominee Elena Kagan is lauded by the White House and many of her colleagues for bringing ideological diversity — and harmony — to Harvard Law during the years she served as the school's dean. She recruited conservative law professors to balance the faculty politically. But it is a diversity of a different kind that Duke Law professor Guy Charles finds lacking during her tenure. He points out that of 32 faculty hires made under her leadership; only one was a person of color. A mere seven were women. Charles shares his concerns with guest host Allison Keyes.

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ALLISON KEYES, host:

Everyone is scrutinizing the record of Supreme Court nominee Elena Kagan. She's been picked by President Obama to replace the retiring justice, John Paul Stevens. And she's being lauded by the White House for bringing ideological diversity and harmony to Harvard Law during the 10 years she served as the school's dean. From 1999 to 2000, she actively recruited conservative law professors in an effort to bring political balance to the Harvard faculty.

But it is a diversity of a different kind that Duke University law Professor Guy Charles finds lacking during her tenure. He points out that of 32 faculty hires made under her leadership, only one was a person of color, and just seven were women. Professor Charles joins us from WUNC in Durham, North Carolina to share his thoughts and concerns about Elena Kagan.

Professor, thanks for joining us.

Professor GUY CHARLES (Law, Duke University): My pleasure. Thanks for having me.

KEYES: So, tell us why you're worried about her hiring practices at Harvard now that she's been nominated for the court.

Prof. CHARLES: Well, as you said, Allison, one of the great qualifications that the president has talked about with respect to the solicitor general is the role that she has played in the ideological diversity that she has brought on Harvard's faculty, something that all of us applaud because we think it's important to have ideological diversity, and I think that's a great thing.

But when you look at the record, what is evidently lacking is racial diversity, with respect to hiring. And it does raise a question about the nominee's demonstrated commitment to racial inclusion. We're not saying that she doesn't have that commitment. We're simply saying that's a question that needs to be answered.

KEYES: You wrote in an article for Salon.com, quote, "A commitment by a dean to hiring women and people of color in tenure and tenure-track positions often takes courage and conviction," end quote. Are these qualities you think Kagan lacks?

Prof. CHARLES: I don't know whether she lacks those qualities. What we'd like to have asked and what we'd like to have answered is to point to evidence in the record of a demonstrated commitment to the quality of racial inclusion. So it might be that those exist. So, for example, Harvard Law Professor Charles Ogletree says, well, he's worked with Dean Kagan when she was then-Dean Kagan...

KEYES: Mm-hmm.

Prof. CHARLES: ...and that she does have those qualities. What we'd like to see is evidence in the record. And if that evidence exists, then that concerns the argument that Professor Ogletree and others have made that she does, in fact, have those qualities. But the...

KEYES: Who's we?

Prof. CHARLES: But the - my coauthors and I, in particular Professor Anupam Chander at UC Davis Law School and Professor Angela Onwuachi-Willig at University of Iowa Law School.

KEYES: Professor Charles, do you know her?

Prof. CHARLES: No, I don't.

KEYES: Then, I've got to ask: If she didn't increase racial and ethnic diversity at the law school, how does that disqualify her from sitting on the court?

Prof. CHARLES: Well, it doesn't necessarily disqualify her. The question is not that this should be absolutely determinative. But race has long been an important - racial equality has long been an important value, particularly for progressive and Democrats. And it is a contested issue on the Supreme Court. So recently, the court has decided a number of cases, most recently the Ricci case, in the which the question was whether the City of New Haven can give effect to a promotion test because of the disparate impact that the test has on firefighters of color. And the Supreme Court said that the City of New Haven must give effect to that test, notwithstanding the disparate impact that it has on firefighters of color.

We also remember cases in which the Supreme Court has come close - for example, in the NAMUDNO case - the Supreme Court has come close to ruling that Section 5 of the Voting Rights Act is unconstitutional. So there are a number of cases in which race is extremely important that comes before the court. And so the question of racial inclusion, then, is an indication - how hard you're willing to fight on this issue may be an indication on what your views are on how hard you're willing to fight on other issues of racial inclusion.

And so we don't have the record yet from the solicitor general. We may. That record may develop. But until we know what her vision is, until we know what her commitment is - and so the only data point that we have says that she was not a leader on this particular issue. And it's hard to explain how you can hire 32 individuals and not hire a person - only hire one person of color and only hire seven women.

So even on the question of gender equality, I think both of those issues are important to know, and we need to have better answers than we've received so far from the White House.

KEYES: Really briefly, professor: I know President Obama protested the lack of faculty diversity while he was a student a Harvard. Have you gotten any response to your concerns from the White House?

Prof. CHARLES: Well, the White House has responded to our concerns by saying that the data is not indicative. But - I - we answered in our Salon piece arguing that the data is accurate. They haven't denied the raw numbers that we've presented. But the White House is assured and is assuring all of us that they know the solicitor general and that she is committed to these issues. And if that's true, then that works for us. We just wanted to have those issue raised and to make sure that if this person is going to be on the court, and she will be on the court for a very long time, that she has a demonstrated commitment to the question of racial equality.

KEYES: So, professor, are you opposing her confirmation on these grounds?

Prof. CHARLES: No, I'm not opposing her confirmation. I think what was important at this stage is to assure that we get some of the answers that we were looking for. But I'm not opposing her nomination, particularly because of the people who know her best have said that she is committed to these types of issues. We wanted to have that raised, because this has long been a concern for Democrats and Progressives in particular. And we want to make sure that those issues do not fall by the wayside.

KEYES: Guy Charles is a professor of law at Duke University. He is also founding director of Duke Center on Law, Race and Politics. He joined us today from the studios of WUNC in Durham, North Carolina. Professor, thanks for your thoughts and for joining us.

Prof. CHARLES: My pleasure.

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