Although the NAACP and Rev. Al Sharpton’s National Action Network have enthusiastically endorsed Supreme Court nominee Elena Kagan, two key legal groups have so far refrained from endorsing the former Harvard law dean amid questions about whether she would be a strong civil rights advocate on the court.
That split underscores the complexities of a civil rights community eager – some say over eager – to support the nation’s first African-American president, and the legitimate concerns of some highly-respected legal organizations in a much better position to evaluate Kagan’s suitability to fill the seat vacated by Justice John Paul Stevens, a reliable liberal vote on the sharply-divided Supreme Court.
Mavis T. Thompson, president of the National Bar Association, the largest organization of Black lawyers and judges, said the group gave Kagan only a lukewarm rating because of concerns about her positions on crack-cocaine sentencing disparities and her record on diversity at Harvard.
Although Kagan is clearly qualified to join the court, Thompson said, “We hope Ms. Kagan’s views on civil rights and equal justice will become apparent during the confirmation hearings. To date, the NBA has withheld its endorsement due to insufficient information to ensure that Ms. Kagan’s views are consistent with the core missions of the organization.”
Barbara R. Arwine, executive director of the Lawyers’ Committee for Civil Rights Under the Law, said her organization voted not to take a position on Kagan. “There isn’t a judicial record to review, indicating her views on critical civil rights matters,” she told the Washington Post. “And otherwise, the civil rights record that exists is thin and mixed.”
Despite that mixed record, Sharpton issued a statement saying, “President Obama’s nomination of Ms. Kagan – a New Yorker who was a clerk for the Honorable Thurgood Marshall and who has shown balance and fairness throughout her career – is worthy of the support of the civil rights community.”
It took the NAACP just five days to endorse Kagan. “After a careful and thorough review of Elena Kagan’s record, we have unanimously voted to endorse her nomination,” President and CEO Benjamin Jealous said in a statement. By contrast, the NAACP took nine times as long to research Clarence Thomas before opposing his nomination.
Jealous, like Sharpton, noted that Kagan once clerked for legendary Supreme Court Justice Thurgood Marshall. But make no mistake about it –Kagan is no Thurgood Marshall. Not even close. When Marshall joined the court, no one questioned his commitment to civil rights.
As a recent story in the Los Angeles Times observed, “Though Marshall was an unwavering liberal, Kagan already appeared less so. Memos on file in Marshall’s papers at the Library of Congress show Kagan to be cautious, skeptical and, at times, scornful of those who would push the law too far to the left.”
Because Kagan has not served as a judge, has written curiously little about major civil rights issues, and has a record of courting conservatives, many are looking at her time at Harvard, her service in the Clinton White House and her short tenure as solicitor general for clues on what kind of judge she might become.
Critics note that of the 43 full-time faculty members hired during her tenure at Harvard, only two were Black and one was Asian. After studying her record, scholars found that of the 32 tenured and tenure-track faculty appointments under Kagan, only one was a person of color (Asian) and seven were women.
Kagan’s defenders argue that the law school faculty, not the dean, makes the final decision on hiring. But Kagan supporters can’t have it both ways. They can’t argue convincingly that she represented only one vote, while taking credit for her bringing in more conservative faculty members.
For example, President Obama in his nomination speech said, “At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus.”
She was so successful in attracting conservative faculty members that the right-wing Federalist Society gave her a standing ovation at one Harvard banquet. On its Web site, the group carries this quote from Kagan: “I love the Federalist Society … They are highly committed, intelligent, hard-working active students who make the Harvard community better.”
Many prominent conservatives have endorsed Kagan, including Charles Fried, solicitor general in the Reagan administration; Ken Starr, the person who prosecuted Bill Clinton; and Theodore Olson, who served as solicitor general for George W. Bush. Those endorsements have raised the eyebrows of progressives.
With conservatives holding a 5-4 edge on the Supreme Court, Obama can’t afford to be wrong about Kagan. Other presidents have lived to regret their Supreme Court appointments. President Dwight D. Eisenhower appointed Earl Warren as chief justice in 1953, feeling certain he would be a reliable conservative vote. However, Warren moderated his views and became one the court’s most consistent and influential liberals.
Eisenhower would later say Warren’s appointment was “the biggest damn-fool mistake I ever made.” We can only hope that Obama won’t have to say the same thing about Kagan.
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.