Duchess Harris, "The State of Black Women in Politics Under the First Black President"
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Appointing Kagan, Overlooking Black Women

Since President Obama has taken office, he has had the opportunity to appoint two justices to the Supreme Court, replacing Justices David H. Souter and John Paul Stevens. In May 2009, he selected Sonia Sotomayor, a Hispanic woman who Clinton appointed to the 2nd U.S. Circuit Court of Appeals, to take the place of Souter. In May 2010, he announced Elena Kagan, Solicitor General and former Harvard Law School Dean, as his choice to replace Stevens. While the appointment of the first Hispanic to the court was a notable and historic accomplishment towards diversifying the Court, it is disappointing that not a single qualified black woman made it past the initial nominee list. This oversight on Obama's part emphasizes Wilz's point on the lack of black women in upper level positions, despite the number of qualified candidates, as does Kagan's own hiring history while dean at Harvard Law School between 2003 and 2009.

Prior to the announcement of Kagan's nomination, civil rights groups, bloggers, and black female attorneys expressed concern about both Kagan's hiring record and her failure to take action against racism within the law school. In a Salon.com piece, four law professors from different schools examined Kagan's record, praising her for the number of faculty members she hired. Yet:

"[o]f these 32 tenured and tenure-track academic hires, only one was a minority. Of these 32, only seven were women.... When Kagan was dean of Harvard Law School, four-out-of-every five hires to its faculty were white men. She did not hire a single African-American, Latino, or Native American tenured or tenure track academic law professor. She hired 25 men, all of whom were white, and seven women, six of whom were white and one Asian American. Just 3 percent of her hires were non-white...."[18]

After Duke University's Guy-Uriel Charles, one of the Salon.com authors, wrote a blog post expressing the group's concern, the White House released talking points in Kagan's defense. As indicated in the professors' essay, the White House defense does not contest the numbers the essay cites. Instead, it presents the number of visiting professor offers Kagan made, with percentages of how many of these offers were made to minorities and women. Numbers on tenure-track offers made to minorities and women were not included. The authors also point out that at Yale Law School, the Dean (who served at approximately the same time as Kagan, from 2004 to 2009), while hiring only 10 professors compared to Kagan's 32, "...still managed to hire nearly as many women (five of 10 at 50 percent), and just as many minorities (one of 10 at 10 percent) as Dean Kagan."[19]

In addition to the clear lack of diversity in Kagan's hiring record, there has been criticism of Kagan's reaction to a Harvard Law School parody, a skit performed by students and professors in which they "roast" other students. In a guest post on the blog Feministe, Diane Lucas, a Harvard graduate and now an attorney in New York, wrote about the parody that took place while she was at the school in 2006 during the time that Kagan was Dean. She describes how the parody portrayed at least four women of color in an offensive manner:

One of my friends who is a very articulate, intelligent, black woman, was made to sound like a Shanaynay-like character from the show, Martin (I love Shanaynay—who doesn't? But, really?!). Another woman, who is Cuban-American was depicted as having very large breasts, which were actually balloons that were violently popped during the play. They portrayed another woman, who is Dominican-American and speaks fluent English, as barely speaking a word of English. Another black woman was depicted as being sexually promiscuous with classmates and professors.[20]

Lucas says when students brought their concerns to Kagan, she refused to make a statement or issue an apology for the play. After pressure from students, two other professors organized a meeting to discuss the parody, but the school's effort to create a conversation on race ended there, despite students asking Kagan to implement diversity sessions. Kagan's disregard for legitimate concerns about racism in her school clearly demonstrates a lack of sensitivity and awareness to the experience of minority women, and her inability to find an African-American professor for tenure (but 25 white men) during her time at Harvard further suggests an indifference to the creation of any real diversity in the faculty or the experience of Harvard Law students.

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