After pretending to be seriously considering up to ten people for appointment to the Supreme Court, including two African-American women, President Obama did what most of us predicted all along: He selected Solicitor General Elena Kagan to fill the vacancy created by the retirement of Justice John Paul Stevens. I wrote more than a month ago that Kagan is a less than ideal appointment and nothing in recent weeks has changed my opinion.
I expect that Kagan will be fine on civil rights issues but could be a disappointment when called on to protect civil liberties or reign in executive powers. Why not get a candidate who will be reliably supportive of both civil rights and civil liberties? The fact that we're debating whether Kagan would be a good appointment to the court underscores the depth of the problem.
Not surprisingly, major civil rights leaders and Black Harvard law professors have been busy in recent weeks writing articles in support of Kagan, the first female dean of Harvard Law School. Charles J. Ogletree, Jr., for example, wrote articles for Newsweek and www.theroot.com defending "my colleague." He observed that as dean of the Harvard Law School, Kagan requested to be appointed the Charles Hamilton Houston Professor of Law instead of the customary Sir Isaac Royall Professor of Law.
Houston was the law school's first African-American graduate. Royall was a major slave trader and sold his slaves in Antigua to help create the Harvard Law School. By electing to hold a chair in honor of Houston instead of Royall, demonstrates "a compelling sense of her commitment to diversity and equality," according to Ogletree.
It was the correct thing to do, but was hardly compelling. A more accurate yardstick is what happened on her watch as Harvard's law dean.
Ogletree says: "Since Elena Kagan became dean, the number of African American students admitted, particularly black males (given the national decline in African American males in colleges and universities), is simply astonishing. From 2003 until she ended her deanship in 2009, the number of African American students has been at an all time high. Her first year, 10 % of the students were African American and the total minority student body was 29%. That percentage has increased in each category over the years. As a result, 31 percent of the entering class at Harvard Law School over the past 9 years is a record and a sign of her commitment."
That is significant progress. But Kagan was dean for six years, not nine, therefore she should not be given credit for what happened after she left Harvard.
Black student enrollment, however impressive, is only part of the picture.
Three law professors – Anupam Chander of the University of California-Davis; Luis Fuentes-Rohwer of Indiana and Angela Onwuachi-Willig of the University of Iowa – co-authored an article on Kagan's diversity record.
They wrote, "The first woman Dean of Harvard Law School had presided over an unprecedented expansion of the faculty -- growing it by almost a half. She had hired 32 tenured and tenure-track academic faculty members (non-clinical, non-practice). But when we sat down to review the actual record, we were frankly shocked. Not only were there shockingly few people of color, there were very few women. Where were the people of color? Where were the women? Of these 32 tenured and tenure-track academic hires, only one was a minority. Of these 32, only seven were women. All this in the 21st Century."
Kagan defenders correctly state that the law faculty, not the dean, vote on whom to hire in the department. But Kagan backers can't have it both ways: They can't, as Ogletree did, brag about how she increased student diversity at Harvard and not have her accept responsibility for the dismal number of tenure-track African-Americans.
I am most concerned about Kagan's stated "love" for the Federalist Society, the network of law students, professors, lawyers and judges whose stated goal is to move the judiciary to the right. At one Harvard gathering of the Federalist Society, they gave Kagan a standing ovation. Do you think Justices John Roberts or Antonin Scalia would ever receive a standing ovation from the ACLU or the National Bar Association? We need to know why Right-wingers are cheering Kagan.
At this point, no one knows for certain what kind of justice Kagan will be. But we know this: When Roberts, Scalia and Clarence Thomas were appointed to the Supreme Court, there was absolutely no doubt about how they would vote on issues most important to African-Americans. Given the opportunity to make two Supreme Court appointments in as many years, we shouldn't be wondering what kind of justices the president is appointing to the Supreme Court. But that's exactly what we're doing.
[George E. Curry, former editor-in-chief of Emerge magazine and the NNPA News Service, is a keynote speaker, moderator, and media coach. He can be reached through his Web site, www.georgecurry.com You can also follow him at www.twitter.com/currygeorge.]