Dr. Charles Ogletree clearly knew, after I left a general message at his Harvard Law School office, that I wanted to talk about the criticism gaining traction against President Barack Obama's Supreme Court nominee, Solicitor General Elena Kagan. In Kagan's six years as dean at Harvard Law School, for example, with the exception of one Asian-American woman, all of the tenure-track professors hired there were White. There's also sparse evidence of her views on important legal issues--and much grumbling that the President failed to further diversify the Court and nominate a Black woman.
Ogletree was gamely prepared to take on these concerns. The renowned Harvard law professor, who has known her for 25 years (and has also been a longtime mentor to President Obama), rapidly, and at length, listed diversity-related facts about Kagan. And, though he agreed that the time is ripe for a Black woman to serve on the Supreme Court, Ogletree also explained why he approves of the nominee.
CYNTHIA: What do you think of Elena Kagan as the President's Supreme Court pick?
CHARLES OGLETREE: I think Elena Kagan is a superb nominee. I started my teaching career at Harvard Law School in 1985, when she was a student there. I watched her work as an editor on the Harvard Law Review, and saw the phenomenal edits she did on a classic article by Professor Derrick Bell, the first African American to receive tenure at Harvard Law School, that addressed civil rights in the Constitution. She was also able to get a new Chair in the name of Charles Hamilton Houston, the first African American on the Harvard Law Review in 1922. Every aspect of her life--her push for diverse students and faculty, her being the first woman dean of Harvard Law School and the first woman solicitor general--just reinforces my sense that President Obama picked someone who can meet challenges and exceed them.
CYNTHIA: Yet questions have been raised about Kagan's record on diversity during her deanship at Harvard Law School, with just one professor of color hired on the tenure track. Shouldn't she be held accountable for that?
OGLETREE: Anyone who's involved in faculty hiring, particularly at a place like Harvard Law School, quickly understands that it's not the dean, but the 80 or so tenured members of the faculty who decide who's hired and who receives tenure. The dean can try to persuade his or her colleagues to support a particular line of candidates, but she only has one vote. Having said that, her record is actually one that I applaud.
She was very helpful in pushing a number of diverse candidates to come to Harvard. Annette Gordon Reed, who she persuaded to visit, has been granted tenure and is now a member of the faculty, and the second Black woman tenured at Harvard. Ken Mack [an African-American] was given a position as an assistant professor, and he became tenured faculty during the deanship of Elena Kagan. Other racially diverse candidates were offered tenure during Dean Kagan's term, but chose to stay at their home institutions. She's also had unprecedented success in increasing the number of African-American students at the law school during her years as dean, from 10 percent up to 13 percent.
If you look at her whole record I think it tells you that she worked diligently to make opportunities available for others. The questions about who she recommended and who was tenured are fair, and I think she'll be able to respond to them.
CYNTHIA: President Obama has been criticized too, for failing to nominate a Black woman--particularly when there are many qualified candidates, and the Supreme Court has never had an African American woman justice. What are your thoughts on this disappointment?
OGLETREE: I share that concern, and I have said publically and privately that there is a large number of talented African-American women who should be considered. I applaud the remarkable accomplishments of people like Judge Ann Claire Williams on the Seventh Circuit and Leah Ward Sears, who was extraordinary as Chief Justice of the Georgia Supreme Court. I also think it is disgraceful that in the year 2010, when over half of the members of the legal profession are women, that we have only two women on the Supreme Court, and we've never had more than that.
CYNTHIA: So, are you saying that the President has added diversity with his Supreme Court pick, in that Elena Kagan is a woman, and people shouldn't fixate on race?
OGLETREE: No. I think complaints are completely appropriate and necessary. We need to have more diverse people on the Supreme Court, including women of color. There's no question about the qualifications that African-American women have; the question is having the moral courage to further diversify in that accord. I am disappointed that no one in the history of this country has ever done it. And I'm not giving up on the prospect that this President will be able to do that.
CYNTHIA: There's also concern from the left wing over the lack of information on Elena Kagan's views, and that she may not be liberal enough. Many hoped the President would have picked someone decisively liberal to ensure that viewpoint is represented. Do you think that's the right approach to take?
OGLETREE: Let me be frank in my assessment--there are no liberals on the Supreme Court. I say that with all due respect to the current justices serving, but we don't have a Thurgood Marshall or a William Brennan on the Court today. I don't know that we'll be able to have one in the foreseeable future, in light of the fact that so much has been made about politics. We have conservatives--we have ultra-conservatives--but we don't have liberals. I think that Elena Kagan's views are hard to predict. The reality is that none of us know, not even Elena Kagan at this point, how she's going to vote on each issue because they're not before her yet. That's part of the challenge. I think she's going to be a terrific justice and has the capacity to be persuasive to those that she'll be working with, and I am encouraged by her nomination.