Kagan Is Stellar on Minority Rights!

The attacks on Elena Kagan about her not hiring many minorities when she was Dean of the Harvard Law School are stupid in many ways. One of her professors at Harvard, Randall L. Kennedy (a black man), has written a post over at Huffington Post telling why this is so wrong. A piece from that piece….(emphasis mine)

She was in one of the first classes on race relations law that I taught at Harvard Law school. I recall vividly that she was an outstanding student — so much so that I recommended her with superlatives to my former boss Justice Thurgood Marshall. I thought that she would be an excellent clerk for him partly because she was so able analytically and also because her quiet but passionate commitment to equality before the law would fit in so well with “Mr. Civil Rights.” I was delighted when Justice Marshall offered her the clerkship and was unsurprised later when the Justice told me that her work for him had been exemplary.

Now really, with that kind of cred on civil rights, someone is going to accuse her of not being sensitive to minorities? Give me a break, please. This next bit reminded me of my first thought when I heard the criticism about who was hired while she was the Dean at Harvard Law. I work at a university and have been on selection committees for faculty, certainly not Harvard type faculty. But my first thought was, the Dean doesn’t freakin interview anyone. They certainly can if they want, but usually the Dean will just meet the candidates and weigh in with the committee with his thoughts. From Randall’s post…

First, it is mistaken to suggest, as some have, that the Dean of Harvard Law School is responsible for all that happens or does not happen with respect to hiring. The Dean is the single most influential member of the faculty. One does not get hired at the law school without the Dean’s blessing. At the same time, the Dean does not have the power on her own to hire someone to the faculty. To be hired, a candidate must receive at least a majority, usually a super-majority, of votes. The Dean can seek to persuade, but the Dean at Harvard Law School cannot force professors to move when it comes to faculty hiring, traditionally the most contentious arena of struggle at a famously contentious institution.

Second, Kagan was attentive to issues of race in faculty hiring. I say this on the basis of what I observed as the Chair of the Harvard Law School’s Entry Level Appointments Committee, a Committee on which, as Dean, Kagan also sat. I often agreed with her assessments of candidates but sometimes disagreed. Even when I did disagree, however, I found her judgments to be eminently sensible. She evaluated candidates carefully and generously, deploying her tough-minded independence but also paying close attention to the opinions of her colleagues.

So really now, you liberals who are looking for reasons to reject her, find something else. Or better yet, come to your senses and help us win in 2010 and 2012 instead of undermining our elected leader.

Harvard Law Professor Lawrence Lesig on Glenn Greenwald’s Hyperbole!

Rachel Maddow had a couple of segments last night on Elena Kagan’s nomination to the SCOTUS with Glenn Greenwald “spewing” anger and hatred (see previous post) and Lawrence Lesig, a Harvard Law Professor and friend of Elena Kagan’s defending her…..well, basically he took on Greenwald’s hyperbole.  Here are the links to the segments on Rachel’s blog. The case against Elena Kagan and the case for Elena Kagan. There was follow-up to their appearances and the following is from Lawrence Lesig on the Huffington Post…

What struck me yesterday as I researched the issue, however, was how hyperbolic Glenn’s campaign had become. No doubt Elena Kagan has not written as extensively as Cass Sunstein, or Pam Karlan. But to say that “she’s somebody who has managed to avoid taking a position on virtually every single issue of importance over the last two decades,” or that “[s]he’s managed to remain a totally blank slate” is just disqualifying hyperbole. Kagan has written a corpus of work that earned her tenure at Chicago about the First Amendment. (Read Geoff Stone’s description of that work here). When she came to Harvard, she wrote an extraordinarily important piece about the nature of executive authority and the president’s control over the executive. Those are two important areas of federal law that Justice Kagan will have to address. To pretend in the face of this work that she remains “a totally blank slate” is absurd.

The next bit is in reference to Glenn Greenwald misleading people into thinking that Elena Kagan agreed with the Bush administration on executive powers, go to this link to read it, it’s pretty wonky. Here is Lawrence’s wrap up which I think puts Greenwald in his place, although I’m sure he’s busy typing like crazy on his Dell computer with more of his hatred towards anything Obama. Go Lawrence….

This is my “falsehood” “spewed on TV.” Except that whether it was “spewed” or not, it isn’t false. Glenn has repeatedly suggested that Kagan’s 2001 article shows that she believes the President has the power “instead of” Congress. That characterization of Kagan’s view is flatly wrong. It was wrong to suggest she had said that about the ordinary work of administrative agencies. It was super-wrong to suggest she had said that about anything to do with the President’s power to wage war. To link the two together in a single sentence would confuse — even if the grammar were clear. And to hear people echo the words of Glenn, it is clear his confusion has spread.Chill, Glenn. Dial down the outrage. Dial back the hyperbole. And stop calling those who applaud you liars. No doubt there are other progressives the President could have nominated with a clearer public record. I can well understand the frustration of some that the President didn’t pick one of these others, even if I don’t share it.

But you can make your point well enough without painting everyone else as liars or constitutional crazies. If I was confused by the “vagueness” in your “grammar,” I apologize. I wouldn’t have used it had I not read you repeat the thrust of the point again and again. But now that you’ve clarified it — now that you’ve acknowledged that the 2001 piece does not support the Bush/Cheney doctrine of “executive power” — let’s move on. There are wildly more important battles to fight in our common campaign against the corruption of Congress. Winning that battle would ultimately be more important to progressives and our democracy than the difference between the justices Barack Obama could appoint.