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White House seeks to defend Kagan's diversity record

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.

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By Krissah Thompson and Hamil R. Harris
Washington Post Staff Writer
Wednesday, May 12, 2010

The White House rushed Tuesday to allay concerns raised by some civil rights groups about Supreme Court nominee Elena Kagan and the hiring record of Harvard Law School when she was dean.

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Some black activists were already dismayed that no African American woman has reached President Obama's short list in two searches. The selection of Kagan, the U.S. solicitor general, served to irritate them further, as they described her tenure at Harvard -- which administration officials highlight as evidence of her practicality and her ability to work across ideological lines -- as one lacking in racial inclusion.

Leaders of the NAACP and legal groups discussed their concerns Tuesday with White House officials, including senior adviser Valerie Jarrett.

Afterward, the Rev. Al Sharpton said Jarrett had described the role civil rights groups could play in supporting future nominees for solicitor general and district and appellate judges. Kagan's nomination, Sharpton said, "is already made, and most of us are inclined to support it."

Kagan was scheduled to speak Wednesday at the NAACP Legal Defense Fund's annual spring luncheon, but she is not expected to attend now because of the public scrutiny that accompanies a Supreme Court nomination, said John Payton, the fund's leader. "As solicitor general, Ms. Kagan has an exemplary record on most issues important to us," he said. "At the same time, we are interested in learning more about her entire civil rights record."

As with many elite institutions, Harvard Law has been prodded over the years to diversify the ranks of its faculty. While Kagan led the school from 2003 to 2009, 29 faculty members were hired: Twenty-eight were white, and one was Asian American.

CNN pundit Roland Martin wrote an online column Monday that slammed Kagan's record on diversity as one for which a "white Republican U.S. president" would be criticized. "There would be widespread condemnations of Republicans having no concern for the non-white males in America," he wrote.

On Sunday, members of a coalition of black women wrote to President Obama to express their concerns about Kagan and their disappointment that a black woman was not chosen to sit on the nation's highest court. No black woman has served on the court, although two were potential nominees this time: federal appellate judge Ann Claire Williams and former Georgia Supreme Court chief justice Leah Ward Sears.

"Our trepidation regarding [Solicitor] General Kagan is premised on the lack of a clearly identifiable record on the protection of our nation's civil rights laws," reads the letter, which was signed by Melanie Campbell of the National Coalition on Black Civic Participation, Elsie Scott of the Congressional Black Caucus Foundation and 26 others.

The White House has pushed back against the notion that Kagan has not been racially sensitive, releasing a set of talking points on the subject to civil rights lawyers and reporters, according to Salon.com, which first reported the concerns.

It emphasizes that Kagan did not have the final say in hiring at Harvard, where such decisions are made by committee. The memo also argues that Kagan made other appointments and promotions that enhanced diversity, including moving two minority professors to tenured positions. Three of the 12 clinical professors hired were minorities.

Harvard Law professor Charles Ogletree, who worked with Kagan while she was dean, went further, saying the raw hiring numbers at the law school provide a skewed picture of her full commitment to diversity. "She reached quite broad and deep in trying to ensure that diverse candidates were in the pool," he said. "There has never been a doubt in my mind about her commitment to diversity."

Justice Department spokeswoman Tracy Schmaler added that Kagan's hiring record as solicitor general "reflects a strong commitment to hiring qualified candidates of all races and genders." According to the department, Kagan's hires since March 2009 have included one white man, three white women, one Asian man and one Indian man.

Duke University's Guy-Uriel Charles helped begin the debate about Kagan's record late last month with a letter to the White House that three other law professors signed.

"We raised these issues because we think that the question of racial inclusion should still be a priority for this country, because we haven't reached a satisfactory position on that question yet," Charles said in an interview Tuesday. "At the end of the day, one has to take the president's word that he is satisfied that Solicitor General Kagan has the vigorous commitment to racial inclusion that her former boss Thurgood Marshall had."


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