Elena Kagan Confirmation Hearing Sets Stage for Political Showdown

Race and Affirmative Action

The NAACP has endorsed Kagan's nomination for the Supreme Court.

While working as a lawyer in the White House in 1997 Kagan expressed enthusiasm for a position the administration's Solicitor General was taking on an affirmative action case. The case concerned a school board that had invoked its affirmative action policy in dismissing a white teacher instead of a black teacher with equal seniority.

Walter Dellinger, who was then serving as the Solicitor General , urged the administration to take a narrow position in the case in favor of a monetary judgment that had been awarded to the white teacher. Dellinger said the school board hadn't proved it relied on a diversity argument when making its decision and he felt the case was not the appropriate vehicle for the court to take a broader look at affirmative action.

"The approach I propose demonstrates that we are serious in our commitment to mend (without ending) affirmative action." Dellinger wrote.

At the top of Dellinger's memo Kagan added a handwritten note," I think this is exactly the right position" she wrote "as a legal matter, as a policy matter, and as a political matter."

Kagan and Bruce Reed, her boss at the Domestic Policy Council in the Clinton Administration clashed with other members of the administration regarding the issue of Race Policy Initiatives. Kagan and Reed took a more centrist approach to the issue writing in one memo that the "focus of the race initiative should be a race-neutral opportunity agenda."

Lester Spence, a political scientist at John Hopkins University has questioned her commitment to racial diversity while serving as the Dean of Harvard Law School. He wrote in an article for The Root "while Kagan made significant strides in making Harvard Law School ideologically diverse--hiring a number of conservative legal scholars--she made no strides in making the law school more diverse, gender- or race-wise."

The current Dean of Harvard Law, Martha Minow, rejects the characterization. In a recent conference call organized by the White House, Minow said that Kagan worked on "all kinds of diversity" including ideological, gender, racial, and methodological. Minow said that Kagan was a "huge advocate" for diversity but warned that no Dean can "wave a magic wand" and hire anyone she wants.

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