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.
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