By Amy Goldstein
Washington Post Staff Writer
Sunday, June 27, 2010; A03
On the eve of Elena Kagan's Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.
Their reservations have introduced the first substantive division among liberals in what has otherwise been a low-key partisan debate over Kagan's merits to replace Justice John Paul Stevens. The uncertainty among some on the left is particularly striking, given that she was nominated by the nation's first black president.
Decades after the height of the civil rights movement, questions involving race and ethnicity persist as a recurrent theme before the Supreme Court, and attitudes on those issues remain a significant prism through which nominees are evaluated by those on the left and the right.
The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group's president, Mavis T. Thompson, said it "had some qualms" about Kagan's statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines. Others have expressed reservations about Kagan's views on affirmative action, racial profiling and immigration.
Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday. Some, including the Mexican American Legal Defense and Educational Fund, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan's public statements and actions and said they are uneasy.
"This is a complicated nomination," said Barbara R. Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law, which decided last week not to take a position yet on Kagan. "There isn't a judicial record to review, indicating her views on critical civil rights matters," Arnwine said. "And otherwise, the civil rights record that exists is thin and mixed."
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The lingering doubts mean that the White House has not fully tamped down reservations from the left that surfaced immediately after President Obama nominated Kagan in early May. That contrasts with the outpouring of support from the civil rights community -- and a central line of objection from conservatives -- over Obama's selection a year ago of now-Justice Sonia Sotomayor, whose strong Latina identity, rather than her judicial philosophy, was a defining aspect of her candidacy.
Republicans have been critical of Kagan on other grounds, focusing on what they characterize as her liberal philosophy and, more specifically, her refusal to sponsor military recruiters for a period while dean at Harvard Law. White House officials have said that she would prove to be an impartial justice. And they have rebutted the critique of Kagan on race, noting, for example, that the law school's final hiring decisions were made by committee.
No Senate Democrats have signaled that they are wavering on Kagan's confirmation. But the hesitancy within parts of the civil rights community is a reminder that, when it comes to a lifetime seat on the nation's highest court, presidential allies can prove as vexing as opponents. In 2005, criticism from conservatives prompted President George W. Bush to rescind the short-lived nomination of White House Counsel Harriet Miers.
Some women's groups have come forward to support Kagan. So have the NAACP and the NAACP Legal Defense and Education Fund. The latter issued a detailed report on her record, concluding that she possesses "an impeccable legal biography." Still, the group cited "some concerns" and emphasized that the "nature and extent of Elena Kagan's record on civil rights" makes it especially important for the Senate Judiciary Committee to explore "all . . . areas affecting equal opportunity and racial justice."
Other liberal organizations are in an awkward spot, wary of Kagan but reluctant to criticize the White House explicitly. "We really did struggle with this," Thompson said of the National Bar Association's decision to give Kagan the mid-level rating of "qualified" rather than an outright endorsement. "Of course, we want to support President Obama. But . . . I have to make sure I am true to the mission of the National Bar," whose 44,000 members are predominantly African American.
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Such uneasiness comes in part from a handful of the many records made public this month from Kagan's time in the Clinton White House counsel's office and as deputy director for domestic policy. The discomfort is reinforced by the recollections of some colleagues and outside civil rights activists with whom Kagan interacted during her White House years. Others have noted that no black or Latino faculty members were hired into a tenure-track position during the six years that she was Harvard Law School's dean.
The Clinton-era records reflect pointed disagreements about racial matters between Kagan and Christopher Edley, a legal academic who worked in the White House and remained a consultant on a Clinton race initiative after returning to Harvard to teach. Now dean at the University of California at Berkeley School of Law, Edley has been close to Obama, dispensing pointed advice to his campaign staff.
When Edley wrote to Clinton in 1999 urging him to incorporate a ban on racial profiling into his race initiative, Kagan and her boss, domestic policy adviser Bruce N. Reed, objected. "This simply cannot be allowed to happen," read a note in Kagan's handwriting.
The previous year, Edley fired off a note, saying he had been unable to get Kagan's attention. He wanted to discuss a policy she favored prohibiting social promotion in schools. He opposed the idea, saying research has shown it would be counterproductive for poor, minority students. "I have tried email, voice mail, hallway greeting, and conversation with her secretary," Edley wrote of Kagan, saying that he hoped to discuss the policy to "avoid the problem of deciding . . . whether I need to resign."
In the only interview he has given about Kagan, Edley told The Washington Post that she had displayed a "reluctance to engage race directly," but he added: "In jobs like that, it's often difficult to discern whether someone is speaking in their own voice or representing a superior."
Edley said that "nobody ever detected daylight between Bruce and Elena" but that "I really do not feel comfortable inferring from that anything about her personal views on social policy, much less on the bench."
Reed confirmed that Kagan and he had been skeptical of the race initiative, with its emphasis on using the presidency as a bully pulpit for a national conversation about ongoing racism. "We both felt that the administration had a responsibility to propose concrete actions that would expand opportunity," Reed said, "and not just have a conversation that called attention to the problem and didn't do anything about it."
Alexis M. Herman, who served as Labor secretary in Clinton's second term, said Kagan had supported a minority youth jobs initiative that Herman had promoted.
Mary Frances Berry, at the time chairwoman of the U.S. Commission on Civil Rights, recalled Kagan as "argumentative and smart," often taking "a skeptical attitude about the arguments people made. . . . On the Civil Rights Commission, her first kind of question would be, 'Why do we need one?' "
Berry, along with some of the activists combing Kagan's public record, say they are uncertain of the nominee's personal views. The Mexican American Legal Defense and Educational Fund, for instance, is trying to interpret a note by Kagan in which she dismissed as "lots of legal gobbledygook" arguments about how to treat Central Americans displaced by Hurricane Mitch in 1998.
MALDEF President Thomas Saenz said that "there are certain absences in the record" regarding Kagan. "And, therefore, there are questions to be asked."