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Elena Kagan: Is this the best they could do?

May 14, 2010

Welcome back to my blog! I pray you have had a wonderful week and are preparing for a great weekend!

I just wanted to share a few thoughts with you about an issue we covered this week on my show: The nomination of Solicitor General Elena Kagan to a seat on the U.S. Supreme Court.

To be certain, she has a stellar reputation. Her professional peers have lauded her and many pundits have lavished her with praise. And yet, I still have questions.

First of all, her paper trail is thin. Too thin for a lifetime appointment of this magnitude. And let’s face it, at 50, she is not old (conceivably, she has 30, 40 or even 50 years of working life ahead of her). We simply do not know enough about her opinions and inclinations. According to University of Colorado Law School Professor Paul Campos’ piece, The Next Harriet Miers (

“In the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review.”

After receiving tenure as a Harvard Law professor, she published nothing.

Don’t you want to know her thoughts or meanderings about reproductive rights, corporate malfeasance and responsibility, or affirmative action?

I do.

In the decades she could serve on the court, it is almost guaranteed she’ll have to weigh in on these issues and more. Her thoughts, even as they have evolved, you and I have the right, and the need to know.

And, her hires while serving as law dean at the Harvard Law School have served to give me pause. Frankly, they have unsettled me. I find it hard to believe that, as Duke University Law School Professor Guy-Uriel Charles wrote she “hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American.” Not one single African-American, Latino or Native American could be hired on the tenure track? Not one could be placed there?


NYU Law Professor Derrick Bell left the Harvard Law school in 1992 over this very issue. Bell became the first tenured Black professor at the Harvard Law School in 1971, but he relinquished this prestigious post and walked away from this distinction in 1992 when he refused to return from a two-year, unpaid leave of absence he took to protest the lack of women of color on the faculty. No Black women? No Latina women? No Native American women? In America?! In the world?! You cannot be serious.

Hey, I’m neither lawyer nor legal scholar. But, OK, let me help you scour the landscape. Believe me, these people of color, these women, specifically, exist. One need only make the time and have the intention to find them. I’ll give you a few: Atty. Barbara Arnwine, the head of the Lawyer’s Committee for Civil rights Under Law, or Dr. Lezli Baskerville, the head of NAFEO, would be tremendous additions to Harvard. Dr. Michele Goodwin, one of the foremost health law experts in the world, internationally published and renowned, would fill the bill nicely. Her work is so compelling that the University of Minnesota’s Law and Medical Schools joined with their School of Public Health to create a chair for her. Take a look at longtime civil rights attorney and Ohio State Law Professor Michelle Alexander. And, guess what? Goodwin and Alexander have paper trails: They are all published authors.

The women I named are African-American. However, there are accomplished and competent, let alone brilliant, Latina and Native American women who would be fine additions to Harvard’s faculty. Call MALDEF, AIM, the NATIVE-AMERICAN RIGHTS FUND and LULAC; I am sure these organizations would be happy to furnish the Harvard Law Dean and faculty search committee with assistance, if they had only been asked.

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Solicitor General Elena Kagan has many fine qualities and deeds, but the aforementioned issues deserve scrutiny and specific answers. Indeed, Justice Marshall’s tradition is one to which she can fairly and proudly lay claim. However, he, I am sure, would want answers to these questions. And he, above all, would want the tradition of Charles Hamilton Houston, the Brown v. Board of Education decision, whose 56th anniversary we now commemorate, as well as that of his own and so many others, honored and respected.

I believe he would have moved to find other NAACP legal eagles like Constance Baker Motley or Juanita Jackson Mitchell; I believe he would have sought out and trained a Dolores Huerta or a Wilma Mankiller. That was his tradition. And they should be observed and, more than that, this tradition is the foundation upon which greater deeds can rest and great people can be developed.

Next posting: The BP disaster: Sadly, that is the gift that just keeps on giving: literally…

God bless you.

Love and blessings,

One Comment leave one →
  1. Dr. Camille Fuller permalink
    May 23, 2010 5:41 pm

    I totally agree with your sentiments here, Santita. It seems that Solicitor General Kagan was a progressive choice by our President in one sense – being a woman – yet null and void enough not to ruffle too many feathers on the left or right. Yet her hiring record alone at Harvard speaks volumes. Are we to think that she will all of a sudden be fair, just and balanced in her consideration towards people of color because she will be donning a robe in the highest court of the United States? I hardly think so.

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