A black Kagan recruit makes the case for confirmation

Written by admin   // May 14, 2010   // 0 Comments

By Ronald S. Sullivan

According to some of the media I have read lately, I do not exist. Yet I live, breathe, and pen these words in support of Elena Kagan’s nomination to the Supreme Court.

I am an African-American law professor at Harvard who was recruited by Elena Kagan during her deanship. I use the word “recruited” decidedly. The dean does not “hire” any professor at Harvard; rather, the faculty votes on prospective members. To be sure, the dean’s role in the hiring process is critical, but she alone cannot hire anyone.

At the time of my appointment, then-Dean Kagan aggressively recruited me and, in the end, persuaded me to leave my professorship at the Yale Law School in favor of Harvard. How did she do this? Kagan offered me the directorship of the prestigious Harvard Criminal Justice Institute, the nation’s preeminent teaching and research institute on criminal law, and the directorship of Harvard’s Trial Advocacy Workshop, a nationally-known teaching program that brings in some of the country’s top lawyers and judges to train Harvard law students during an intensive three week trial skills workshop. I can report that Elena Kagan used every bit of her discretionary authority to make the offer to come to Harvard far too attractive to turn down.

Among my responsibilities at Harvard, I teach a clinical offering where students represent indigent clients – mostly black and brown citizens – charged with criminal violations. And, my research interests include the ways in which race insinuates itself into the criminal justice system. As dean, Kagan provided consistent, strong, and material support for my clinic and research. She showed a genuine appreciation and concern for my clinical program’s goal of ensuring that indigent citizens receive constitutionally adequate representation.

Even more, as a clinician, I was impressed by Elena Kagan’s substantial expansion of the clinical teaching program at Harvard. From environmental law to educational advocacy, Kagan poured resources into Harvard’s clinical offerings. Due to this expansion, thousands of indigent and under-represented citizens received quality legal services that they otherwise would not have been able to afford. For me, this represented a tangible commitment to the principle norm that animates our legal system: “Equal Justice under Law.”

While the question of ethnic diversity on the Harvard law faculty is a critically important issue in its own right (and no elite law school has done enough on this front), this issue is occupying so much discursive space nowadays, because many are groping for proxies that will predict whatkind of justice Elena Kagan will be if she is confirmed – particularly with respect to issues of race and equality. How successful she was at diversifying the Harvard faculty is one such proxy. With regret, too many media accounts draw conclusions with imperfect and incomplete data. My story is but one example of Elena Kagan’s efforts to diversify Harvard’s faculty.

Conspicuously absent from much of the public dialogue is the fact that she recruited Professor Annette Gordon-Reed to accept a visiting professorship at Harvard. Professor Gordon-Reed, an African-American woman and award-winning historian, recently accepted Harvard’s offer to join its tenured faculty. Other black law professors at Harvard – Randall Kennedy and Charles Ogletree, specifically – have published statements that chronicle other instances of Kagan’s efforts at faculty diversity. Debate on any nominee’s record is a healthy component of our democracy; material facts in service of that debate make it all the more rich. My point here is that the inquiry is quite legitimate, but fairness dictates that we look at Kagan’s entire record.

It is true that Elena Kagan’s scholarship does not provide insight into her ideological dispositions as they relate to issues of racial justice. So, perhaps, proxies are all that we have. Consider, then, another decision Elena Kagan made as dean. The tradition at the Harvard Law School is that the dean takes the Royall Professorship of Law, which is the law school’s first endowed chair. The chair is named after Isaac Royall Jr., who donated over 2100 acres of land to Harvard in the mid-eighteenth century. But, the Royall family earned its immense fortune from the trans-Atlantic slave trade. When Kagan was named dean of the law school, she broke with tradition and declined to accept this professorship. Instead, she became the first person to hold the Charles Hamilton Houston professorship, an endowed chair named after one of the most prominent African-American graduates of the Harvard Law School, and the architect of the modern civil rights movement. This was a significant statement made by the dean of one of the nation’s top law schools.

To my thinking, Elena Kagan is self-evidently qualified to sit on the Supreme Court. She is an outstanding legal scholar, a terrific teacher, and a thoughtful and forward-looking administrator. She has practiced law at a major law firm. She has served as a government lawyer and held a high-level policy position in the Clinton White House. As well, she has served admirably as our nation’s Solicitor General. She is smart, fair, independent, respectful of the opinions of others, and a dedicated public servant. All are qualities that will make for an outstanding Supreme Court Justice.


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