Elena Kagan's record has offered slim pickings--both in terms of offering arguments against her nomination and being able to properly evaluate her judicial philosophy. So the news that Kagan was on the centrist side of the centrist-liberal battles within the Clinton administration is likely to increase liberal anxiety about her nomination, particularly on matters of race. Kagan opposed efforts by liberals in the White House to focus on race-conscious strategies for attacking inequality:
In November, Mr. Reed and Ms. Kagan sent the president their own “race-neutral opportunity agenda,” including expanding access to banks for poor Americans; deploying more police officers to local communities; and enacting “education opportunity zones” to promote public school choice, end social promotion and remove bad teachers.
Kagan's record on race has already come under fire from academics who say she didn't do enough to reach out to minority professors when making hiring decisions at Harvard Law. But while Kagan's support for "race-neutral" efforts to stem the tide of inequality might rub some liberals the wrong way, it's worth noting that such an approach likely would have endeared her to the current president, whose approach to alleviating inequality has been similarly race neutral. That said, both Kagan and Obama have defended affirmative action.
Responding to black critics that he hasn't done enough to alleviate problems in the black community in an interview last December, Obama said "The only thing I cannot do is, you know, by law I can't pass laws that say I'm just helping black folks. I'm the President of the entire United States. What I can do is make sure that I am passing laws that help all people, particularly those who are most vulnerable and most in need. That in turn is going to help lift up the African American community." In other words, by pursuing policies--like health care insurance reform--that help decrease inequality, black people will benefit because they are already disproportionately affected by not having health insurance.
As to how effective this approach has been, the jury is still out. But critics can point to plenty of empirical evidence suggesting it hasn't. Minority owned businesses haven't seen much stimulus money, the racial wealth gap is increasing, and black unemployment remains sky-high. The risks of taking a more race-conscious approach to helping minorities for this president is obvious--some conservatives project racial bias onto the president's actions despite his "race-neutral" approach to inequality.
The point is, if these details about Kagan bothers liberals, they should be equally troubled by the man who nominated her to the bench.
-- A. Serwer
