Elena KaganI’ve been watching the Elena Kagan Supreme Court hearings with only mild interest. I mean, we all know she’s gonna get confirmed. She’s lived a pretty careful life with a carefully steered career and is well-qualified for the job. After all, this is not a woman who has fought super-hard for racial justice. The BlackProf, Dr. Boyce Watkins, is on it (From TheLoop21):

First, Kagan doesn’t seem to value the act of actually hiring black people. During her tenure as Dean of the Harvard Law School, Kagan hired 29 tenured or tenure track faculty with 28 of them being white men. The other person was Asian. Not one single hire was Black, Native American or Latino. [...]

Secondly, the late Dorothy Height mentioned to President Obama before she died that it was time to allow a black woman to show her face on the highest court in the land. In the 211 years of the Supreme Court’s existence, no black woman has ever had a chance to have the same opportunity that has been offered to scores of white males.

Furthermore, the Congressional Black Caucus according to Watkins also has some questions for Kagan. It says something of the stretch of  road still to travel that none of the senators who will question Kagan during her hearings will be black or Latino. From BlackVoices:

Rep. Barbara Lee (D-Calif.), the chairwoman of the CBC and Del. Eleanor Holmes Norton (D-D.C.), chairwoman of the CBC Judicial Nominations Taskforce, have proposed five questions for Kagan during her hearings. Lee and Holmes-Norton also issued the following statement:

“The Congressional Black Caucus believes that Elena Kagan possesses outstanding academic and professional credentials, and applauds President Obama for nominating a person who understands the real-world consequences of judicial decisions. However, the CBC has questions about the nominee’s views on issues of particular importance to African Americans.”

Their questions are as follows:

1. In a 1997 memorandum to President Clinton, you supported reducing the sentencing disparity between crack and powder cocaine to 10:1. Do you support eliminating the sentencing disparity?

2. In a case pending before the Supreme Court in 1997, Piscataway Bd. of Education v. Taxman, in which a school district used its affirmative action policy to lay off a white teacher instead of a black teacher with the same seniority, the then-solicitor general wrote a memo that suggested filing a brief arguing that the teacher should not have been laid off in this particular case, and that if the court adopted this position, it would not have to address whether Title VII “always precludes non-remedial affirmative action.” You wrote on that memo, “I think this is exactly the right position — as a legal matter, as a policy matter, and as a political matter.” Are race-based remedies ever permissible? If left to you alone, would you have applied the “mend it, don’t end it” affirmative action policy to race-neutral remedies only?

3. Please explain why you apparently opposed the formation of a commission on race by President Clinton during his second term.

4. During your tenure as dean of Harvard Law School, the law school faculty grew by almost 50 percent, with the hiring of 43 full-time faculty, including 32 tenured or tenure track. Of those 32, please explain why only one minority, an Asian American, and only seven women were hired, and, of the 11 non-tenure-track faculty, why only three minorities — two black and one Indian — and only two women were hired.

5. While dean, you apparently offered faculty positions to several minority candidates who turned down the offers. How many were African American?

I’m not hating on Elena Kagan as much as Watkins. I’m sure she’ll end up being an amazing justice. She is well-selected to breeze through the confirmation process. Still, I would have preferred to see a more daring and innovative selection.

And I do think Boyce is asking the right questions. The attempt to paint her in the model of legendary warrior for justice Thurgood Marshall is a bit laughable. People be askin’ her the wrong questions. I get that she’s friends with the Prez — that’s nice — and she seems like a cool lady overall. Great to have over to the backyard bbq – witty, self-deprecating, insightful. These questions are important because they set a tone. President Obama just can’t expect African-Americans to get very excited about Kagan’s appointment. I certainly hope that she will seek diversity in her hires and her clerk appointments…

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