According to an article in the Washington Post today, “The White House rushed Tuesday to allay concerns raised by some civil-rights groups about Supreme Court nominee Elena Kagan and the hiring record of Harvard Law School when she was dean.” The problem is that, while she was dean, the faculty hires were all white except for one Asian. The administration’s defense is that a hiring committee, not Kagan, had the final say; that Kagan made other appointments that enhanced diversity; and that her recruiting efforts at Harvard and hiring record as solicitor general show that she does so have a “commitment” to “diversity.”
But providing this reassurance is a tricky enterprise for the administration, since for the civil-rights groups in question a commitment to diversity requires a willingness to discriminate on the basis of race, ethnicity, and sex in order to reach politically correct results (i.e., quotas). And if, as dean and as solicitor general, a lawyer like Kagan had this commitment, one of two things must be true: (a) She thinks such discrimination is perfectly legal, or (b) she knows it isn’t legal but is willing to break the law. If the answer is (b), then she is ethically unfit to be a justice; if the answer is (a), then it follows she will be willing to uphold such discrimination as a justice.