By Michael R. Klein Professor of Law, Harvard Law School
Elena Kagan’s nomination for a place on the Supreme Court should be welcomed enthusiastically by those who are especially concerned with advancing the cause of racial justice in America. She is knowledgeable about the history of our nation’s racial problems and committed to a vision of racial inclusiveness that reflects the best of our national traditions. I say this on the basis of an acquaintanceship with Kagan that dates back almost twenty-five years.
She was in one of the first classes on race relations law that I taught at Harvard Law school. I recall vividly that she was an outstanding student — so much so that I recommended her with superlatives to my former boss Justice Thurgood Marshall. I thought that she would be an excellent clerk for him partly because she was so able analytically and also because her quiet but passionate commitment to equality before the law would fit in so well with “Mr. Civil Rights.” I was delighted when Justice Marshall offered her the clerkship and was unsurprised later when the Justice told me that her work for him had been exemplary.
Over time Kagan became a colleague at Harvard and then my Dean. In all of these roles she has comported herself with the same qualities that prompted me to recommend her so highly to Justice Marshall. There has been some grousing in the media about the paucity of racial minorities hired during Kagan’s Deanship. The criticisms leveled at her are unfair.
First, it is mistaken to suggest, as some have, that the Dean of Harvard Law School is responsible for all that happens or does not happen with respect to hiring. The Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean’s blessing. At the same time, the Dean does not have the power on her own to hire someone to the faculty. To be hired, a candidate must receive at least a majority, usually a super-majority, of votes. The Dean can seek to persuade, but the Dean at Harvard Law School cannot force professors to move when it comes to faculty hiring, traditionally the most contentious arena of struggle at a famously contentious institution.
Second, Kagan was attentive to issues of race in faculty hiring. I say this on the basis of what I observed as the Chair of the Harvard Law School’s Entry Level Appointments Committee, a Committee on which, as Dean, Kagan also sat. I often agreed with her assessments of candidates but sometimes disagreed. Even when I did disagree, however, I found her judgments to be eminently sensible. She evaluated candidates carefully and generously, deploying her tough-minded independence but also paying close attention to the opinions of her colleagues.
Now, to be sure, Kagan’s number one concern was always this: will hiring a given candidate best advance the educational mission of the Harvard Law School. That question often proved difficult to answer given the need to balance all sorts of considerations: short-term and longterm curricular needs, the promise of candidate A versus the accomplishments of candidate B; the relative strength of the cadre of candidates in certain fields versus the relative weakness of the cadre of candidates in other fields.
In answering that difficult question, Kagan was attuned to the various roles that faculty members play in academic life, the various careers that students pursue, and the various methodologies that scholars use to illuminate legal issues. She was also attuned to the ways in which systemic social inequities, reinforced by inertia, have slowed or even stymied the movement of racial minorities into legal academia. Aware of this problem, she sought to increase the pool of minority candidates available for serious consideration for faculty positions at the nation’s law schools. Her attentiveness to this issue was manifested in at least two important ways.
One was her active and enthusiastic support for the Charles Hamilton Houston and Reginald Lewis Fellowship Programs at Harvard which have served as the launching pads for numbers of highly successful racial minority legal academics. Another was her assistance in forming an ad hoc committee (on which I sat) that sought to identify promising racial minority candidates, several of whom have already visited at Harvard Law School and several of whom are slated to visit soon.
Elena Kagan was deeply proud to be named the first holder of the Charles Hamilton Houston Chair at Harvard, an endowed professorship honoring the legendary lawyer and educator who inspired and mentored Thurgood Marshall, Oliver Hill, and an array of other distinguished civil rights attorneys. That she occupied that Chair was deeply appropriate. She strongly embraces equality before the law and will defend that central value stalwartly in the years to come.