From ICT:
WASHINGTON – Conservative criticism of Elena Kagan’s nomination to the Supreme Court was all but guaranteed.
But critiques are also coming from more unlikely sources, as a groundswell of progressive scholars question her past commitments to minorities. Of special interest to Indian country, her positions on tribal and Indian legal issues are unknown, and she has lacked engagement on some major Native topics.
Kagan, 50, was nominated by President Barack Obama May 10 to replace retiring Justice John Paul Stevens. She currently serves as Solicitor General of the United States, the first woman to hold that post. Previously, President Bill Clinton appointed her as Associate White House Counsel.
Kagan has never been a judge, and she has published relatively few scholarly articles. Most analysts have predicted that she will likely be able to be confirmed by the Senate due, in part, to her non-controversial background. Her lack of public stances on hot-button issues, like abortion, is believed to have played a role in Obama’s selection of her.
Before serving in government, Kagan was the dean of Harvard Law School and a professor of law there. She was also previously a professor of law at the University of Chicago.
It’s her service as a leader at Harvard that’s got some minority advocates, including Native Americans, concerned.
Of the 32 tenured and tenure-track academic hires Kagan made while dean, a position she held from 2003 – 2009, only one was a minority, of Asian descent. Of the 32, seven were women. The rest were white males. None of Kagan’s hires were Native American.
Compared to other institutions of Harvard’s pedigree, Kagan’s hiring was lax in its inclusion of minorities. At the same time, she was credited with breaking a logjam at the institution in hiring conservative scholars.
Part of the hiring issues surrounding Kagan involve her failing to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law.
Many Indian scholars were touted by tribes and Indian organizations during Kagan’s tenure as candidates to permanently hold the Oneida chair, but action never occurred.
“That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard,” said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University.
Also a concern regarding Kagan’s engagement on Native topics while dean was her lack of attention to what’s known as the “box checking issue,” which involves non-Indian students reporting that they are Indian when they don’t have information to back up the claims. Many colleges have instituted standards to make sure tribal citizenry is verifiable, but Kagan did not move on the issue when presented with it as a concern.
Guy-Uriel Charles, the founding director of the Duke Law Center on Law, Race and Politics, also raised objections about Kagan’s hiring practices in a widely-read online editorial before she was nominated.
“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 only white faculty?” Charles asked, while presenting Kagan’s hiring statistics.
The White House responded to Charles’ critique with a memo to concerned civil rights groups, saying that Charles did not include the number of offers Kagan made to minorities. The memo indicated that releasing the names of people to which she made offers is against the law, but offered a statistical analysis that says she made offers to minorities at a rate of between 13.3 and 21.1 percent during the years of her tenure. Those offers included ones to visiting professors, which are not permanent positions.
Charles and other respected legal scholars, including Anupam Chander, Luis Fuentes-Rohwer, and Angela Onwuachi-Willig, believe the White House’s response is problematic.
“Unfortunately, the White House’s defense of the solicitor general’s hiring record while she was dean at Harvard is surprisingly weak,” they wrote in a joint column published on Salon.com May 7.
“To begin, and most notably, the White House does not dispute our basic facts. When Kagan was dean of Harvard Law School, four out of every five hires to its faculty were white men. She did not hire a single African-American, Latino, or Native American tenured or tenure-track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just three percent of her hires were non-white – a statistic that should raise eyebrows in the 21st century.
“These are the facts that the White House does not try to defend because these facts are indefensible.”
They noted that during the same time as Kagan’s tenure, Yale Law School hired more minorities and women – a point they said indicates that there were qualified candidates for Kagan to have hired.
They also question the White House’s argument regarding Kagan’s offers to minorities, saying it “seems a bit hard to believe.”
“Do women and people of color find a tenured or tenure-track professorship at Harvard Law School less attractive than white men? Do they really prefer to teach at less prestigious schools? Or if they only prefer not to teach at Harvard because of perceived hostilities to women and people of color, why is it that Kagan could somehow overcome these perceptions when it came to conservatives, but not women and people of color?” they asked.
In terms of Indian law specifically, Kagan’s opinions are unknown – a fact that’s concerning to many Indian legal advocates.
“Elena Kagan, like seven other justices (but not Justice Sonia Sotomayor), is a product of an elite legal culture that gives no weight, or deference, or even basic respect, to American Indian law,” said Fletcher, who called her views “a mystery.”
The need to know more about Kagan’s positions is noted in a May 11 letter from the National Native American Bar Association to the White House.
“NNABA does not currently have a position on General Kagan’s nomination,” the document reads in part. “We are not yet familiar with her experience with tribal nations or federal Indian law. However, we very much look forward to hearing from General Kagan about her views on the constitutional status of tribes and the protection of Native American rights.”
While some Native Americans have been tough regarding Kagan’s past, a common notion is that since she’s likely to be nominated, it might be useful for Indian interests to do their best to get her to better understand Indian law, rather than critique her.
To bolster Kagan’s understanding, various Indian legal groups are calling on the White House to help her reach out to and meet the Indian legal community.
“We would love to hear what her experience has been and how we can work with her to provide her a Native perspective on the law affecting our communities every day,” said Lael Echo-Hawk, NNABA president. “The fact remains, most people, lawyers, judges and politicians included, know very little about our community, history and the legal framework surrounding the basics of our day-to-day lives.”
Richard Guest, a legal expert with the Native American Rights Fund, said the organization supports the goal of having a meeting with Kagan to better understand her views on Indian law. The legal group had been pushing for an Indian candidate to be nominated to the high court.
Turtle Talk 