THE BLOG
06/29/2010 05:12 am ET Updated May 25, 2011

Arguing the Case Against Elena Kagan: Nice Matters

The progressive blogosphere is on fire about Elena Kagan. Viewed as Obama's likely Supreme Court nominee, the current Solicitor General and former Dean of Harvard Law School is being raked over the coals about her lack of a paper trail and coziness with conservatives. Salon's Glenn Greenwald leads the charge, with several posts challenging Kagan and extolling his preferred choice, Judge Diana Wood of the U.S. Court of Appeals for the Seventh Circuit. Greenwald and others have urged progressives to oppose Kagan with the same vehemence that conservatives used against Harriet Miers, George W. Bush's hapless choice.

I entered the fray to point out that Kagan's political skills while a Harvard dean could be useful to fill John Paul Steven's shoes, in order to keep some 5-4 majorities on key issues. Stevens was a master at marshalling the votes needed to create a majority where possible, rather than staying stuck as the "Great Dissenter." Chief Justice Earl Warren, the liberal lion to whom I compared Kagan, showed similar political intelligence to garner victories on controversial issues. Kagan's colleague at Harvard, Larry Lessig, also wrote in HuffPo about the need for her political skills on the Court to find shared reasoning where possible, without compromising essential principles.

Greenwald argues, and I agree, that now is the time for citizens to make their voices heard about potential nominees. Better to influence the choice before it is made than try to undo it after the fact. This is an important role for citizens to play. In 1987, during the Bork confirmation hearings, I wrote an op-ed for The Washington Post urging Americans to make their voices heard as the best way to celebrate the bicentennial of the Constitution--even though the Post's editorial board argued that politics should not be involved in Supreme Court nominations. What a difference 20 years makes.

However, progressives should not have to risk losing their credentials if they don't march lockstep with Greenwald. Greenwald hinted (the non-denial denial) that my article might have been planted by the White House--a terrible charge to even suggest against a fellow journalist without corroboration, when a quick e-mail to me would have told him no.

Greenwald will always be a hero to me because of his courageous and steadfast opposition to the torture policies of the Bush Administration, as I told Simon Owens at Bloggasm. Yet I do not believe that U.S. criminal law is always sufficient to prosecute al Qaeda terrorists, nor was the Fourth Amendment intended to apply to battlefields. It was not fair to say Kagan "endorsed the core Bush template" when she agreed with Senator Lindsey Graham that some form of judicial review and due process must be given to those being held as unlawful combatants. The Bush Administration wanted no judicial or Congressional review of its wartime decisions at all, under a black-hole theory that the president's powers as commander-in-chief absorbed every other provision in the Constitution.

Yet after my Kagan article I have been called a "hack" and a "coward" and a "shill" on the blogosphere. While I expect passionate responses, this is still tough stuff for someone who has devoted her entire professional life to educating citizens about the Constitution. I'm beginning to feel a little like Tim Geithner (whom I've also criticized). This raises a question about how progressives can most be effective, not just bitter. If we really want to influence the White House on the Supreme Court, then tone matters. Just as progressives say that Republicans need to ratchet down their tone when criticizing the president, I think we also have an obligation to be a bit more civil ourselves. Nothing keeps a political movement marginalized more than acting that way--through nasty and personal attacks on those with whom you disagree.

Having said all that, the firestorm over Kagan has produced some evidence about her record that does give me serious doubts about her nomination. It was raised by Professor Guy-Uriel Charles of Duke Law School and highlighted by Greenwald:

Granting that we know very little about Kagan, what do we make of the facts that we do know? Here are some data that gives me pause about Kagan. When Elena Kagan was Dean of the Harvard Law School, she hired 29 tenured or tenure-track faculty members. But she did not hire a single black, Latino, or American Indian faculty member. Not one, not even a token. Of the 29 people she hired, all of them with one exception were white. Under Kagan's watch Harvard hired 28 white faculty members and one Asian American. . . .

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of [almost entirely] white faculty? Moreover, of the 29 new hires, only six were women. So, she hired 23 white men, 5 white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That's a racist and sexist statement.

To me that ends the debate about Kagan's qualifications right there, especially for a Supreme Court that is supposed to protect the rights of disadvantaged groups. As I said in the comments section of Greenwald's article:

I remember lying on the floor of Dean Vorenberg's office in 1983--while he stepped over us in stocking feet--because the imbalance on hiring was so bad. I agree with Prof. Charles in his assessment that saying other candidates are "unqualified" merely amplifies the discrimination. Remember Larry Summers on women and math?? Lack of diversity in faculty hiring was the same issue that brought Barack Obama to the attention of his HLS classmates.

That a dean at HLS has this bad a record almost 30 years later is unreal, especially given the overall progress of women and other groups in the law. I didn't have these hiring statistics when I wrote my HuffPo article. Never let it be said of me that I can't change my mind based on evidence.

And that's where a civil debate can ultimately lead: new evidence that changes people's minds. No White House should be immune to that.