Bench Memos

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What Happened to the Consensus-Builder?


Elena Kagan is said to be an amazing consensus-builder and to deserve credit for Harvard law school’s hiring of three or four conservative professors.  But when her hiring record as dean is criticized on racial-diversity grounds—no blacks or Hispanics among the 29 faculty hires while she was dean—suddenly she’s not responsible:  The White House “emphasizes that Kagan did not have the final say in hiring at Harvard, where such decisions are made by committee.”

Kagan’s hiring record reminds me of the tension between Justice Ginsburg’s employment practices (at least as of the time she was nominated to the Supreme Court) and her own aggressive support for disparate-impact statistics as evidence of intentional discrimination:  At her 1993 confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary.  Out of 57 employees, zero blacks.


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