Elena Kagan and the Chair

The Senate Judiciary Committee’s hearing on Elena Kagan’s nomination to be an Associate Justice of the Supreme Court of the United States is underway.

Day One was dominated by opening statements and partisan bickering.

Although it’s been more than two months since Kagan’s nomination was announced, 81 percent of Americans don’t know who she is, according to a C-SPAN survey.

The National Bar Association and some civil rights groups want to know more about Kagan’s stances on civil rights, diversity and racial disparities in the criminal justice system.

As far as I know, not one black woman has endorsed her nomination.

Kagan’s black male supporters, including Harvard Law Prof. Charles Ogletree Jr., point to the faculty chair she assumed during her tenure as dean of Harvard Law School as evidence of her commitment to racial equality.

For many African Americans, that’s pretty thin gruel on which to endorse a lifetime appointment to one of these chairs.

The Congressional Black Caucus has asked Senate Judiciary Chairman Patrick Leahy to pose the following questions to Kagan:

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%, 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?

Black folks will be listening to her responses.