Many of us have followed the recent Supreme Court nomination of Elena Kagan, the former Dean of the Harvard Law School. Her nomination process, thus far, has been quite contentious within the African American community, with several scholars and women’s groups opposing her racially-divisive hiring record. The Black Women’s Roundtable found significant problems with the Kagan nomination, in large part because several qualified African American women were overlooked in the process. The group even mentioned that the late Dorothy Height stated to President Obama, right before she died, that it’s time for black women to be represented in all sectors of government. On the flip side, her nomination was supported by a few black male Harvard Law Professors, as well as the NAACP and the National Action Network.
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I would like to make it clear that I did not support the nomination of Kagan, along with Roland Martin, Professor Guy Charles (Duke University Law School), Dr. Marc Lamont Hill (Columbia University), Dr. Miriam Harris (a professor at Macalester College) and some others. I also noticed that the one black female on the Harvard Law School faculty at the time of the Kagan nomination (Lani Guinier) was conspicuously silent while her male colleagues were touring the nation like MC Hammer. I’d be surprised if they didn’t ask Lani to come out and support Kagan like everyone else. Our reasons for challenging the Kagan nomination varied, ranging from her poor diversity record to her conservative disposition and lack of qualifications for the job.
One issue that was not raised as readily as it should have been is the fact that with the appointment of Kagan to the Supreme Court, the high court will be almost completely dominated by graduates of Harvard University and Yale University (Ruth Bader Ginsburg graduated from Columbia, but even she spent time at The Harvard Law School before transferring). This sets a dangerous precedent in our legal system, threatening to make America into an aristocracy, where 99.9% of the population doesn’t matter. There are brilliant legal minds who attend schools other than Harvard and Yale, and many of these promising young attorneys are going to be overlooked by individuals like Elena Kagan and Clarence Thomas, who have less than stellar abilities that are over-ridden by solid gold connections. President Obama has bought into the aristocracy and thus undermined his credibility with both everyday Americans and African American women. He made a similar mistake last summer by standing with Harvard Professor Henry Louis Gates during his dispute with a police officer, jumping into a minor battle without knowing the facts, thus causing him to be hammered at the polls. Since that time, I haven’t seen either Obama or Gates engage in any significant effort to fight against racial profiling of poor black men in urban America. Their standing together was not a black thing, it was a Harvard thing.
I would speculate that the pressure put on black Harvard law professors to speak on behalf of Kagan translates to a consistent effort to strengthen the school’s political power. As a colleague said to me behind closed doors, “This whole debate isn’t about what’s best for the black community. It’s about who gets to have the biggest house on Martha’s Vineyard and a good relationship with a Supreme Court justice.” Professors Kennedy, Ogletree and Sullivan (and Henry Louis Gates, who used his platform at TheRoot.com to promote commentary from his colleagues) hitting the campaign trail on behalf of Kagan is likely a matter of making sure that Harvard gets another touchdown by putting one of their own on the court. All scholars are hard-pressed to find evidence that Kagan is willing to fight for the rights of rank and file African Americans, other than the fact that she was willing to accept a chair named after a black man and once worked for Thurgood Marshall. What remains clear, however, is that Thurgood Marshall would not approve of a woman who hired zero African Americans during her time as Solicitor General of the United States. Also, it’s interesting that supporters will give Kagan credit for bringing in conservative professors to the Harvard Law School, but then claim that she was not able to hire African American faculty. You can’t exit a basketball game claiming to have scored all the points when you admit that you never handled the ball or had a turnover.
What I think about individual motivations for supporting Kagan is really not all that important. What does matter is that there are many law schools across the nation with brilliant students coming out of them. Outstanding students from Vanderbilt University, Indiana University, UCLA and other strong campuses should also have an opportunity to serve on the highest court in the land. While one can certainly argue that many Harvard and Yale graduates are incredibly talented, we must remember that they are not perfect: After all, George W. Bush got his undergraduate degree from Yale and his MBA from Harvard. So, being from Harvard or Yale does not guarantee any form of intellectual superiority. Simultaneously it can, as in the life of former President Bush, open doors for incompetent people to be chosen for opportunities over those who are far more capable.
The rest of the country may want to take notice of the game being played here. With everyone rooting for their home team and engaging in the “gang warfare of higher education,” we may end up with a nation that is over-run by intellectual in-breeding and people taking care of their cronies instead of doing what’s best for our nation. The Ivy League possesses several outstanding institutions (I turned down Columbia University for my PhD and my God daughter attends the school now), but they do not deserve the right to possess a disproportionate amount of our nation’s power. America is a nation for the people, by the people, where most of the people are not at Harvard or Yale. Let’s not kill our democracy.