After my post yesterday on three overlooked points in the coverage of the Kagan nomination, I was asked whether there wasn't a fourth:  Harvard's hiring of African Americans during Kagan's tenure as Dean.  I think the answer is no "“ not because the diversity of law school hiring is unimportant; in fact, I believe that the diversity of a faculty (like the diversity of the Supreme Court) plays an important role in legal education and the development of the law.  It is a recurring problem that requires a conscious commitment to address.

Instead, it seems not to be a significant issue with respect to the credentials of Elena Kagan.  Three prominent African-American law professors at Harvard "“ two of whom have known her for a quarter-century and one of whom chaired the faculty hiring committee "“ have stepped forward to praise Kagan's personal commitment to diversify Harvard, in both faculty hiring and admissions.  Here are the pieces from Charles Ogletree, Randall Kennedy, and Ronald Sullivan.  I'm not aware of contrary claims by anyone on the Harvard faculty.

The articles by Ogletree, Kennedy, and Sullivan are impressive both because they accept the premise of critics who argue that expanding faculty diversity is important and because of their detail explaining that Kagan in fact pursued that goal.  They discuss particular hires and promotion decisions, specifically discuss Kagan's commitment to diversity in faculty hiring, and more broadly address her role in expanding opportunity at Harvard.  They also address the limitations on the power of the Dean, who effectively can block a faculty appointment, but who cannot mandate it.

Kagan's defenders invited this accusation to some extent by emphasizing that under her tenure Harvard became more ideologically diverse.  A reasonable question arises: why not racially diverse as well?  I don't actually see any significant inconsistency.  Kagan was responsible for pressing for the hiring of specific, high-profile conservatives "“ most visibly, Jack Goldsmith at the end of his tenure in the Bush Department's Office of Legal Counsel.  No doubt, her ability to address ideological diversity ran into the same constraints on her power as racial diversity.  The articles by Ogletree, Kennedy, and Sullivan seem persuasively to make the case that Kagan was in fact genuinely concerned throughout her time as Dean with expanding opportunities for, participation by, and leadership roles held by African Americans.

Based on those pieces, I don't doubt that Harvard "“ like almost every university "“ has a real distance to travel before it has fully addressed questions of inequality and diversity, including with respect to race.  But it doesn't seem to me that there is any evidence that Elena Kagan failed to pursue that goal.  So I don't see it emerging as an issue in the confirmation process.

Posted in Analysis