A Tribute To The Ongoing Intellectual, Social, and Moral Legacy of Derrick A. Bell, 1930-2011

Derrick A. Bell, 1930-2011

Patricia J. Williams

http://www.thenation.com/blog/163897/professor-derrick-bell-1930-2011?rel=emailNation

All,

Still another tribute to the profound and lasting legacy of the late, great African American scholar, activist, theorist, and teacher Derrick Bell (1930-2011) by one of his many outstanding, renowned, and deeply appreciative students, African American scholar, law professor, social critic, and writer Patricia Williams...

Kofi


Professor Derrick Bell, 1930–2011
Patricia J. Williams
October 11, 2011
The Nation

I met Professor Derrick Albert Bell when I was 19 years old. I was an undergraduate, but a student of his had invited me to sit in on one of his classes in constitutional law at Harvard. At that point in my life, I was thinking of going on for a PhD in… linguistics? Urban studies? Sociology? Maybe art history. I was lost in the something-or-other stage of my life and couldn’t for the life of me make up my squishy, floaty mind.

Professor Bell’s lecture fixed all that. He had that class divided into interest and advocacy groups, taking various sides in the Supreme Court cases they were studying. The teams were arguing with each other like mad, and the passion and purpose flying around that room were like tangible objects. You had to duck to avoid getting laser-beamed by the sharp, whizzing commotion of high-octane ideas.

When I actually got to law school, I discovered that not every class was like Professor Bell’s. This was around the same time that The Paper Chase came out, which highlighted the harsh questioning of the Socratic Method that then reigned supreme in most of legal academia. I cowered with my classmates in fear of what often felt like mockery or derision. In addition, there were not a lot of women in law school in those days—we were only 8 percent of the class—and sexism was only beginning to be addressed as just possibly inimical to the educational process. I had expected to love law school. Instead, I hated it within the first ten minutes.

Derrick Bell is the only reason I didn’t leave. As he had in that first glimpse of his teaching, he made ideas come alive. He made the dry pages of treatises vivid; he never let us forget the human stories behind every tract, every suit, every appeal. He imbued legal education with a sense of purpose and responsibility: we weren’t there for ourselves alone, but to live up to a calling and to become of service. He helped me reframe the sense of isolation and intimidation I felt as causes, as precisely the reasons there was an obligation to stay the course.

Until Professor Bell, people like me—females, African-Americans, students who weren’t wealthy, who weren’t legacies—were left to our own devices to try to penetrate the Old Boys network. We had to discover that secret societies even existed before we could try to break down the doors; and we had to comprehend how many deals were made in eating clubs before we could understand why invitation to those high tables was not merely about the potatoes au gratin.

There was every manner of institutional insularity in those days, calculated to shut out most of the world. In contrast, Professor Bell’s door was always open. His mind was always open. Always soft-spoken, always polite, he made others’ doors open too—he supported disability, elderly and gay rights long before any of that was part of the national conversation. He worked to get more women on the faculty when few others thought their lack an issue. Over time, his efforts changed not only Harvard but the way all law schools treated students. He spoke truth to power in a way that removed that notion from mere cliché. And he created family in the unlikely setting of a law school.

I had the great fortune to work as a research assistant for him, updating the first two editions of his textbook Race, Racism and American Law. It was the best job I ever had, not only because of what I learned about the practice of law but because he connected me to a practice of being. He was what Malcolm Gladwell has called a “nodal” person: anything worth knowing could be found through him. With all due respect to Kevin Bacon, Derrick Bell was only two or three degrees removed from everyone on the planet.

A few years after I graduated from law school, Professor Bell urged me to think about teaching. It was not a career path I ever would have considered otherwise. This was at a time when there were virtually no women in law teaching—to say nothing of women of color. He said he just saw me as teaching; and so it was. It would be too easy to say he was visionary like that; but the truth is he made things happen. He believed in a broadly inclusive mandate for equality that was boundless and prescient. He pushed and he pulled and he checked in on his students. He made friends with them for life. He was so unqualifiedly selfless that many of us called him Father Derrick—not because he was ever paternalistic but because he was such a wise provider to those of us stumbling about in a professional world that was new, inscrutable and not altogether welcoming. He was a mentor before we had a word for it.

Like legions of others, I felt like a daughter among extensive and extended family. And as such, I, we, suffered constantly from sibling rivalry—we all wanted to be Derrick’s favorite child. We came and we went, we visited and lunched, we darted in and out of his life like hummingbirds eternally hungry for succor. But if he made us feel “as though” we were family, we were always aware of his real family, the vital core that was his pride and joy. His first wife, Jewel, and his second wife, Janet, were true intellectual companions, both as warm, funny and kind as he. And his sons—Derrick, Douglas and Carter—were his heart. I was fortunate—and old enough—to have watched those three remarkable sons grow up. I baby-sat for them, walked the family dogs with them, shared so many lovely moments. They were delightful, polite, thoughtful children; and all three have grown up to be great-souled, good-hearted and gentle human beings. What greater pride can there be.

Derrick Bell touched more people than most of us mere mortals could ever dream. He was a great man precisely because there were no conditions upon his energies. He had a huge capacity for love, for justice and for justice as a form of love. Like all the greatest teachers, his influence remains eternally generative.

DERRICK BELL, 1930-2011: Author, Law Professor, Legal Scholar, Innovative Social Theorist, and Political Activist

Derrick A. Bell: 1930-2011

Steve Liss/Time Life Pictures, via Getty Images
Derrick Bell walking with a group of Harvard law students after taking a voluntary unpaid leave of absence to protest the lack of tenured minority women professors.

http://www.nytimes.com/2011/10/06/us/derrick-bell-pioneering-harvard-law-professor-dies-at-80.html?_r=1&pagewanted=all

All,

The world has just lost another GIANT of great ethical, moral, and political courage and integrity and that rarest and most profound example of the contemporary academic as a committed social activist--a genuine 'public intellectual' in every important and compelling sense of that often greatly misunderstood and distorted phrase. Dr. Bell was also an inspiring intellectual hero of mine whose extraordinary theoretical and practical contributions to legal and historical scholarship and social activism were a major guiding force and influence in the lives of two generations of American college students and legal scholars throughout not only this country but the world. Dr. Bell never wavered in his always highly principled commitment to real democracy, justice, freedom, and equality in the academic and legal worlds as well as the general society and always put his own sterling reputation and actual body on the line for the uniquely radical and innovative ideas, principles, and values that animated all of his tireless work and truly exemplary life. To say that the passing of this African American visionary leader and teacher who embodied the advanced DuBoisian tradition of meticulously fusing the very best in scholarship, critical theory, and political/cultural activism is a tremendous loss is a great understatement. However Dr. Bell's immense legacy will live on in the many students and professional workers in the U.S., Europe, Africa, Asia, and Latin America who were and continue to be deeply affected and transformed by his work and life. Thank you Dr. Bell for the glorious sacrifices rooted in love and discipline that you always insisted on making in spite of the insidious racism and endlessly patronizing tokenism that you so often found among your professional colleagues and adversaries alike. RIP brother...
 
Kofi 
 
Derrick Bell, Law Professor and Rights Advocate, Dies at 80 by FRED A. BERNSTEIN
October 6, 2011
New York Times
 
Derrick Bell, a legal scholar who saw persistent racism in America and sought to expose it through books, articles and provocative career moves — he gave up a Harvard Law School professorship to protest the school’s hiring practices — died on Wednesday in Manhattan. He was 80 and lived on the Upper West Side.

The cause was carcinoid cancer, his wife, Janet Dewart Bell, said.

Mr. Bell was the first tenured black professor at Harvard Law School and later one of the first black deans of a law school that was not historically black. But he was perhaps better known for resigning from prestigious jobs than for accepting them.

While he was working at the Civil Rights Division of the Justice Department in his 20s, his superiors told him to give up his membership in the N.A.A.C.P., believing it posed a conflict of interest. Instead he quit the department, ignoring the advice of friends to try to change it from within.

Thirty years later, when he left Harvard Law School, he rejected similar advice. At the time, he said, his first wife, Jewel Hairston Bell, had asked him, “Why does it always have to be you?” The question trailed him afterward, he wrote in a 2002 memoir, “Ethical Ambition,” as did another posed by unsympathetic colleagues:

“Who do you think you are?”

Professor Bell, soft-spoken and erudite, was “not confrontational by nature,” he wrote. But he attacked both conservative and liberal beliefs. In 1992, he told The New York Times that black Americans were more subjugated than at any time since slavery. And he wrote that in light of the often  violent struggle that resulted from the Supreme Court’s 1954 desegregation decision, Brown v. Board of Education, things might have worked out better if the court had instead ordered that both races be provided with truly equivalent schools.

He was a pioneer of critical race theory — a body of legal scholarship that explored how racism is embedded in laws and legal institutions, even many of those intended to redress past injustices. His 1973 book, “Race, Racism and American Law,” became a staple in law schools and is now in its sixth edition.

Mr. Bell “set the agenda in many ways for scholarship on race in the academy, not just the legal academy,” said Lani Guinier, the first black woman hired to join Harvard Law School’s tenured faculty, in an interview on Wednesday.

At a rally while a student at Harvard Law, Barack Obama compared Professor Bell to the civil rights hero Rosa Parks.

Professor Bell’s core beliefs included what he called “the interest convergence dilemma” — the idea that whites would not support efforts to improve the position of blacks unless it was in their interest. Asked how the status of blacks could be improved, he said he generally supported civil rights litigation, but cautioned that even favorable rulings would probably yield disappointing results and that it was best to be prepared for that.

Much of Professor Bell’s scholarship rejected dry legal analysis in favor of stories. In books and law review articles, he presented parables and allegories about race relations, then debated their meaning with a fictional alter ego, a professor named Geneva Crenshaw, who forced him to confront the truth about racism in America.

One of his best-known parables is “The Space Traders,” which appeared in his 1992 book, “Faces at the Bottom of the Well: The Permanence of Racism.” In the story, as Professor Bell later described it, creatures from another planet offer the United States “enough gold to retire the national debt, a magic chemical that will cleanse America’s polluted skies and waters, and a limitless source of safe energy to replace our dwindling reserves.” In exchange, the creatures ask for only one thing: America’s black population, which would be sent to outer space. The white population accepts the offer by an overwhelming margin. (In 1994 the story was adapted as one of three segments in a television movie titled “Cosmic Slop.”)

Not everyone welcomed the move to storytelling in legal scholarship. In 1997 Richard Posner, the conservative law professor and appeals court judge, wrote in The New Republic that “by repudiating reasoned argumentation,” scholars like Professor Bell “reinforce stereotypes about the intellectual capacities of nonwhites.”Professor Bell’s narrative technique nonetheless became an accepted mode of legal scholarship, giving female, Latino and gay scholars a new way to introduce their experiences into legal discourse. Reviewing “Faces at the Bottom of the Well” in The New York Times, the Supreme Court reporter Linda Greenhouse wrote: “The stories challenge old assumptions and then linger in the mind in a way that a more conventionally scholarly treatment of the same themes would be unlikely to do.”

Derrick Albert Bell Jr. was born on Nov. 6, 1930, in Pittsburgh, to Derrick Albert and Ada Elizabeth Childress Bell. After graduating from Schenley High School near Pittsburgh’s Hill District, he became the first member of his family to go to college, attending Duquesne University in Pittsburgh. He received his bachelor’s degree in 1952.

A member of the R.O.T.C. at Duquesne, he was later an Air Force officer for two years, one of them in Korea. Afterward he attended the University of Pittsburgh Law School, where he was the only black student, earning his degree in 1957.

After his stint at the Justice Department, he headed the Pittsburgh office of the NAACP Legal Defense and Educational Fund, leading efforts to integrate a public swimming pool and a skating rink. Later, assigned to Mississippi, he supervised more than 300 school desegregation cases.

In 1969, after teaching briefly at the University of Southern California, he was recruited and hired by Harvard Law School, where students were pressuring the administration to appoint a black professor. Mr. Bell conceded that he did not have the usual qualifications for a Harvard professorship, like a federal court clerkship or a degree from a top law school.

In 1980 he left Harvard to become dean of the University of Oregon School of Law, but he resigned in 1985 when the school did not offer a position to an Asian-American woman. After returning to Harvard in 1986, he staged a five-day sit-in in his office to protest the school’s failure to grant tenure to two professors whose work involved critical race theory.

In 1990 he took an unpaid leave of absence, vowing not to return until the school hired, for the first time, a black woman to join its tenured faculty. His employment effectively ended when the school refused to extend his leave. By then, he was teaching at New York University School of Law, where he remained a visiting professor until his death. Harvard Law School hired Professor Guinier in 1998.

Mr. Bell said his personal decisions took a toll on his first wife, Jewel, who had cancer when he left Harvard in 1990 and died that year. In 1992 he began a correspondence with Janet Dewart, who was the communications director of the National Urban League. Ms. Dewart proposed marriage before the couple even met. A few months later, Mr. Bell accepted.

In addition to his wife, he is survived by three sons from his first marriage, Derrick A. Bell III and Douglas Dubois Bell, both of Pittsburgh, and Carter Robeson Bell of New York; two sisters, Janet Bell of Pittsburgh and Constance Bell of Akron, Ohio; and a brother, Charles, of New York.

In “Ethical Ambition,” Mr. Bell expressed doubts about his legacy: “It is not easy to look back over a long career and recognize with some pain that my efforts may have benefited my career more clearly than they helped those for whom I have worked.”

But Professor Guinier, who continues to teach at Harvard, differed with that view. “Most people think of iconoclasts as lone rangers,” she said on Wednesday. “But Derrick was both an iconoclast and a community builder. When he was opening up this path, it was not just for him. It was for all those who he knew would follow into the legal academy.”




http://madamenoire.com/…/derrick-bell-esteemed-professor-a…/

Derrick Bell, Esteemed Professor and Civil Rights Advocate, Dies at 80 

OCTOBER 06, 2011  
by Cynthia Wright
Madame Noire

Derrick Bell, a legal scholar who continuously worked to expose the racism that exists within society has passed away. Mr. Bell, 80 died early this morning at St. Luke’s-Roosevelt Hospital with his wife, Janet Dewart by his side. Mr. Bell was born on November 6, 1930 in Pittsburgh, where he eventually ended up attending the University of Pittsburgh Law School. At that time, he was the only black student. He also served in the Air Force for two years, with one taking place in Korea.

Afterward, he briefly joined the Justice Department, soon after he went to work for the N.A.A.C.P. Legal Defense Fund. In 1968, he moved out west to teach at the University of Southern California, where he was courted by Harvard Law but turned them down. During the early 80′s he worked as the dean at the University of Oregon but left when an Asian woman was denied tenure there. He eventually returned to Harvard in 1986, where he stayed until the law school refused to tenure a black female. Bell, then decided to take a position at New York University Law School, where he remained until his death.

Not afraid of being seen as a controversial figure, even though he described himself as not “confrontational by nature”, he always led by example and on his own terms. While in his 20′s, when working at the Civil Rights Division of the Justice Department, he was told to relinquish his ties with the N.A.A.C.P., instead of holding on to his Justice Department position, he opted to quit.

A pioneer of “critical race theory,” in which the law is examined to see how race benefits or hinders those that come into contact with the law or legal institutions. Mr. Bell also believed that whites were not quick to assist with the issues surrounding blacks, unless they had something to gain from the interaction.

Mr. Bell was the first tenured black professor at Harvard Law School and the first black dean of a law school that was not historically black. Yet, even with obtaining such prestigious jobs throughout his career, which never stopped him from stepping away from any position – if he felt that what they were doing was unjust. I cannot continue to urge students to take risks for what they believe if I do not practice my own precepts, he often stated.

That line of thinking led him to leave his tenured position at Harvard Law School, 30 years after accepting their offer, due to the school not being willing to tenure any of other black professors.Ms. Dewart and three sons survive him from his first marriage, Derrick Albert Bell III and Douglas Dubois Bell, both of Pittsburgh, and Carter Robeson Bell of New York; two sisters, Janet Bell of Pittsburgh and Constance Bell of Akron, Ohio; and a brother, Charles Bell of New York.Cynthia Wright is an avid lover of all things geeky. When she isn’t freelancing, she can be found on her blog BGA Life and on Twitter at @cynisright.

http://www.youtube.com/watch?v=0djo2awGsAc&feature=player_embedded#!

"The Space Traders" adapted screenplay by Trey Ellis from an original short story by Derrick Bell. Television film of story was aired on the science fiction omnibus series "Cosmic Slop" on HBO in 1994:









Derrick Bell
Born Derrick A. Bell, Jr.
November 6, 1930
Hill District of Pittsburgh
Died October 5, 2011
Manhattan Island, New York, New York
Nationality American
Education A.B. from Duquesne University
LL.B. from the University of Pittsburgh School of Law
Occupation University Professor, Author
Employer New York University School of Law
Known for Critical Race Theory

Derrick A. Bell, Jr. (Nov. 6, 1930 - Oct. 5, 2011) was the first tenured African-American professor of Law at Harvard University, and largely credited as the originator of Critical Race Theory.

Born in the Hill District of Pittsburgh, Bell received an A.B. from Duquesne University in 1952 and an LL.B. from the University of Pittsburgh School of Law in 1957. After graduation, and after a recommendation from then United States Associate Attorney General William Rogers, Bell took a position with the Civil Rights Division of the U.S. Justice Department. He was the only Black person working for the Justice Department at the time. In 1959, the government asked him to resign his membership in the National Association for the Advancement of Colored People (NAACP) because it was thought that his objectivity, and that of the department, might be compromised or called into question. Bell quit rather than give up his NAACP membership.

Soon afterwards, Bell took a position as an assistant counsel for the NAACP Legal Defense and Educational Fund (LDF), crafting legal strategies at the forefront of the battle to undo racist laws and segregation in schools. At the LDF, he worked alongside other prominent civil rights attorneys such as Thurgood Marshall, Robert L. Carter and Constance Baker Motley. Bell was assigned to Mississippi, the cradle of the deep South, where racism was at its most virulent and entrenched. While working at the LDF, Bell supervised more than 300 school desegregation cases and spearheaded the fight of James Meredith to secure admission to the University of Mississippi over the protests of Governor Ross Barnett. [1]

"I learned a lot about evasiveness, and how racists could use a system to forestall equality," Bell was quoted as saying in the Boston Globe. "I also learned a lot riding those dusty roads and walking into those sullen hostile courts in Jackson, Mississippi. It just seems that unless something's pushed, unless you litigate, nothing happens."[2]

In the mid-1960s Bell took a short term position with the University of Southern California. In 1969, with the help of protests from black students for a minority faculty member, Bell was hired to teach at Harvard Law School. At Harvard, Bell established a new course in civil rights law, published a celebrated case book, Race, Racism and American Law, and produced a steady stream of law review articles. As a teacher, Bell became a mentor and role model to a generation of students of color, but he played a delicate balancing act at the university. Bell became the first black tenured professor in Harvard Law School's history and called on the university to improve its minority hiring record. But shortly after his tenure in 1971, a white university vice-president tried to purchase a house that Bell had been previously offered through university; Bell saw this as a case of discrimination. This was the first case in which Bell's charges of racism would mobilize his supporters, who championed his efforts to stand up for principle, and anger his detractors, who accused him of being too quick with his allegations of bigotry.[2]

Protests over faculty diversity

In 1980 Bell became the dean of the University of Oregon School of Law, becoming the first African American to ever head a non-black law school. He resigned several years later over a dispute about faculty diversity. Bell then taught at Stanford University for a year.

Returning to Harvard in 1986, Bell staged a five-day sit-in in his office to protest the school's failure to grant tenure to two legal scholars on staff, both of whom adhered to a movement in legal philosophy that claims legal institutions play a role in the maintenance of the ruling class' position. The administration, not giving an inch, claimed substandard scholarship and teaching on the part of the professors as the reason for the denial of tenure, but Bell called it an unambiguous attack on ideology. Bell's sit-in galvanized student support but sharply divided the faculty.[2]
Bell reentered the debate over hiring practices at Harvard in 1990, when he vowed to take an unpaid leave of absence until the school appointed a female of color to its tenured faculty. At the time, of the law school's 60 tenured professors, only three were black and five were women. The school had never had a black woman on the tenured staff.[2]

Students held vigils and protests in solidarity with Bell with the support of some faculty. Critics, including some faculty members, called Bell's methods counterproductive, and Harvard administration officials insisted they had already made enormous inroads in hiring.[2] The story of his protest is detailed in his book Confronting Authority.

To some observers, Bell's lament about Harvard amounted to a call for the school to lower its academic qualifications in the quest to mold a diversified faculty on the campus. But Bell argued that academically able faculty were being ignored and that critics of diversity invariably underplay the value of a faculty that is broadly reflective of society, and, more importantly, that the credentials demanded by institutions like Harvard perpetuate the domination of white, well-off, middle-aged men. As he commented in the Boston Globe, "Let's look at a few qualifications--say civil rights experience ... that might allow [a chance at a tenured teaching position for] more folks here who, like me, maybe didn't go to the best law school but instead have made a real difference in the world."[2]

Visiting professorship

In 1992, Bell, who had taken a visiting professorship at New York University, was formally removed from the Harvard faculty. In a speech to Harvard students quoted in the Boston Globe, Bell urged the future scholars and activists to continue the moral fights that he had championed, saying: "Your faith in what you believe must be a living, working faith that draws you away from comfort and security, and toward risk through confrontation."[2]

Harvard ultimately hired civil rights attorney and U.S. Assistant Attorney General nominee Lani Guinier shortly after Bell left. Since resigning from Harvard, he remained at NYU Law where he continued to write and lecture on issues of race and civil rights.

Academic contributions

Bell is arguably the most influential source of thought critical of traditional civil rights discourse. Bell’s critique represented a challenge on the dominant liberal and conservative position on civil rights, race and the law. He employed three major arguments in his analyses of racial patterns in American law: constitutional contradiction, the interest convergence principle, and the price of racial remedies.
Bell continued writing about critical race theory even after accepting a teaching position at Harvard University. Much of his legal scholarship was influenced by his experience both as a black man and as a civil rights attorney. Writing in a narrative style, Bell contributed to the intellectual discussions on race. According to Bell, his purpose in writing was to examine the racial issues within the context of their economic and social and political dimensions from a legal standpoint.

For instance, in The Constitutional Contradiction, Bell argued that the framers of the Constitution chose the rewards of property over justice. With regard to the interest convergence, he maintains that "whites will promote racial advances for blacks only when they also promote white self-interest." Finally, in The Price of Racial Remedies, Bell argues that whites will not support civil rights policies that may threaten white social status.

Bell is also the author of a number of books and short stories, including "Ethical Ambition" and "The Space Traders".

Derrick Bell is a supporter of animal rights.[3]

On October 5th, 2011, Derrick Bell succumbed to Carcinoid Cancer at St. Luke's-Roosevelt Hospital, at the age of 80. [4]

In popular media

His short story The Space Traders was adapted in 1994 by director Reginald Hudlin and writer Trey Ellis. It aired as the leading segment of a three part television anthology entitled "Cosmic Slop" which focused on minority centric Science Fiction.[5]

References

^ Legal History Blog: New Archive: The Derrick Bell Papers
^ a b c d e f g Isaac Rosen. "Black Biography: Derrick Bell". Retrieved 2008-05-23.
^ Kentucky Fried Cruelty :: Celebrity Support :: Derrick Bell
^ Derrick Bell, Law Professor and Rights Advocate, Dies at 80
^ Cosmic Slop (1994) entry on IMDB.com

External links

NYU Law Faculty Profile
Derrick Bell's oral history video excerpts at The National Visionary Leadership Project
The HistoryMakers Biography
Rules Of Racial Standing

Elena Kagan, President Obama, and the Dire Necessity of Integrity and Vision on the Supreme Court

Washington -- President Barack Obama has nominated Solicitor General Elena Kagan to the Supreme Court, saying she will demonstrate independence, integrity and passion for the law.

If confirmed by the Senate, Kagan will become the third woman on the high court. Obama introduced her today in the White House's East Room. He called her "my friend" and one of the nation's foremost legal minds.

The selection of Kagan came after nearly a monthlong process of consideration. Obama always had Kagan on his short list but still considered a broader group of candidates, interviewing four.

The president informed Kagan that she would a Supreme Court nominee on Sunday night. He then called the three federal judges he did not choose for the position, Diane Wood, Merrick Garland and Sidney Thomas.

Never a judge, Kagan is known as sharp and politically savvy and has enjoyed a blazing legal career. She was the first female dean of Harvard Law School, first woman to serve as the top Supreme Court lawyer for any administration, and now first in Obama's mind to succeed legendary liberal Justice John Paul Stevens.

At 50 years old, Kagan would be the youngest justice on the court, which would give her the opportunity to extend Obama's legacy for a generation.

Kagan must first win Senate confirmation. A source close to the selection process said a central element in Obama's choice was Kagan's reputation for bringing together people of competing views and earning their respect.

Republicans have shown no signs in advance that they would try to prevent a vote on Kagan, but they are certain to grill her in confirmation hearings over her experience, her thin record of legal writings and her objections to the military's policy about gays.
When she was confirmed as solicitor general in 2009, seven Republicans backed her: Sens. Tom Coburn of Oklahoma, Susan Collins of Maine, Judd Gregg of New Hampshire, Orrin Hatch of Utah, Jon Kyl of Arizona, Richard Lugar of Indiana and Olympia Snowe of Maine.

Kagan came to the fore as a candidate who had worked closely with all three branches of government, a legal mind with both a sense of modesty and sense of humor. The source spoke on condition of anonymity to discuss factors that led to Kagan's impending nomination.

Kagan has clerked for Thurgood Marshall, worked for Bill Clinton and earned a stellar reputation as a student, teacher and manager of the elite academic world. Her standing has risen in Obama's eyes as his government's lawyer before the high court over the last year.

Yet Kagan would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

All of the three other finalists she beat out for the job are federal appeals court judges, and all nine of the current justices served on the federal bench before being elevated.
Kagan's fate will be up to a Senate dominated by Democrats, who with 59 votes have more than enough to confirm her, even though they are one shy of being able to halt any Republican stalling effort.

For the second straight summer, the nation can expected an intense Supreme Court confirmation debate even though, barring a surprise, Kagan is likely to emerge as a justice.

Supreme Court justices wield enormous power over the daily life of Americans. Any one of them can cast the deciding vote on matters of life and death, individual freedoms and government power. Presidents serve four-year terms; justices have tenure for life.

Democrats went 15 years without a Supreme Court appointment until Obama chose federal appellate judge Sonia Sotomayor last year to succeed retiring Justice David Souter. Just 16 months in office, Obama has a second opportunity with Kagan, under different circumstances.

Obama's decision last year centered much on the compelling narrative of Sotomayor, the first Hispanic Supreme Court justice, who grew up in a housing project and overcame hardship.

This year, Obama particularly wanted someone who could provide leadership and help sway fellow justices toward a majority opinion. The president has grown vocal in his concern that the conservative-tilting court is giving too little voice to average people.

Kagan is known for having won over liberal and conservative faculty at the difficult-to-unite Harvard Law School, where she served as dean for nearly six years.

Her background, including time as a lawyer and a key domestic policy aide in President Clinton's White House, would give the court a different perspective.

The White House is expected to frame Kagan's lack of service as a judge in upbeat terms, underscoring that there are many qualified routes to the top of the judiciary.

Kagan, who is unmarried, was born in New York City. She holds a bachelor's degree from Princeton, a master's degree from Oxford and a law degree from Harvard.

She served as a Supreme Court clerk for one of her legal heroes, Justice Thurgood Marshall. And before that, she clerked for federal appeals court judge Abner Mikva, who later became an important political mentor to Obama in Chicago.

Kagan and Obama both taught at the University of Chicago Law School in the early 1990s.

In her current job, Kagan represents the U.S. government and defends acts of Congress before the Supreme Court and decides when to appeal lower court rulings.
Kagan has the high task of following Stevens, who leaves a legacy that includes the preservation of abortion rights, protection of consumer rights and limits on the death penalty and executive power. He used his seniority and his smarts to form majority votes.

Rick Garnett, a professor of law and associate dean of University of Notre Dame Law School, voiced the concern of many conservatives.

"Future elections might undo some of the president's policies, but his more liberal views about the Constitution, the powers of the national government, and the role of unelected federal judges, are now being locked in securely," Garnett said in a statement.

Kagan would be the fourth woman to serve on the Supreme Court, following current Justices Ruth Bader Ginsburg and Sonia Sotomayor and retired Justice Sandra Day O'Connor.

She would be the third Jewish justice along with six Catholics. With Stevens' retirement, the court will have no Protestants, the most prevalent denomination in the United States.

http://www.nytimes.com/2010/05/14/us/politics/14diversity.html?nl=us&emc=politicsemailema1

All,

Whoa folks...WAIT a damn minute here...let me get this straight: Does Obama and the African American supporters of Ms. Kagan who "just happen to be" some of the President's oldest black friends and colleagues at Harvard Law School (like Professor Charles Ogletree who taught Obama at the Law School during his time there as a student in the late 1980s) really, seriously think that they can get away with their strong and emphatic endorsements of Kagan's clearly abysmal record of hiring African American law professors for tenured positions at Harvard Law just because the President likes her and she too is a longtime friend and colleague of his? This position is absolutely bogus and quite absurd on its face. Kagan is on record of hiring ZERO African Americans (as well as Latinos) while Dean of Harvard Law School during her tenure there out of 32(!) positions. Nor did she hire any blacks of Latinos in her position of Solicitor General which she was selected for by Obama last year. NONE, NADA, ZILCH..C'mon! Let's get real--these numbers are atrocious and frankly indefensible. The President, his black cronies and associates at the Law School, and others who support her in her nomination for the Supreme court must be JOKING if they actually think this record is in any way acceptable. What kind of ludicrous standard for "diversity" is this? If a Republican or southern democratic nominee had this kind of insulting record of (not) hiring African Americans and Latinos at Harvard Law would we give that person a pass the way that the President and her personal friends are asking/demanding that we do on Kagan's behalf? Would this record be considered OK and worthy of support by Professors Ogletree and Kennedy? OF COURSE NOT! In fact they and Obama would be the first to publicly and quite justifiably raise very serious questions and objections if this were the case. So let's not play stupid little games here and give Ms. Kagan, the President, and their supporters at Harvard Law School a pass for pretending that this is fine just because the President is her personal friend...Nah... No way! That would not only be intellectually and morally dishonest but very irresponsible to say the least. Ms. Kagan and the President must be held publicly accountable for this serious problem and critical questions should and must be raised about this with regard to her general nomination, Merely refusing an endowed chair tainted with the blood money of slavery and taking one instead with the great Charles Hamilton Houston's name on it (the legendary Houston was Thurgood Marshall's mentor at Howard University and in his general legal career during the the 1930s and '40s) is simply not enough by a long shot.. Like both Houston and Marshall did during their extraordinary careers as courageous and stalwart legal protectors of social and economic justice Ms. Kagan AND President Obama must PUT UP OR SHUT UP on these crucial matters of genuine public diversity and equal employment opportunities for African Americans and Latinos in our higher education institutions and professions. In other words: NO ONE GETS A PASS ON THAT-- not even the President and a Supreme Court nominee. The ball (and the fate of the Supreme Court) is now in their hands...I sincerely hope they don't blow it...

Kofi



Nominee Scrutinized for Hiring on Race

By KATHARINE Q. SEELYE
May 13, 2010
New York Times

BOSTON — When Elena Kagan became dean of Harvard Law School in 2003, she could have taken the endowed chair named for Isaac Royall Jr. The Royall family had donated more than 2,100 acres to Harvard in the 1700s, but the family had earned its fortune on the backs of the slave trade.

Ms. Kagan declined to take the Royall professorship. Instead, she chose a new chair in the name of Charles Hamilton Houston, the first African-American on the Harvard Law Review and a crusader against Jim Crow laws.

Ms. Kagan’s history on race issues at Harvard has come under scrutiny since President Obama nominated her to the Supreme Court on Monday. Critics say that she did not create enough racial diversity at Harvard, and that in the absence of any writings or opinions, her hiring practices serve as a clue to her thinking. Her supporters counter that she demonstrated a commitment to equality; her claiming the chair in the name of Mr. Houston, they said, is but one example.

In the nearly six years that Ms. Kagan was dean, from 2003 to 2009, she hired a total of 43 permanent, full-time faculty members, 32 of whom were tenured and tenured-track. Of those, 25 were white men, 6 were white women and one was an Asian-American woman. Of the other 11, 6 were white men, 2 were women and 3 were minority men (2 black and one Indian), according to a law school official.

Law school officials said the numbers did not reflect the whole story because offers were made to other minority and women scholars; some were declined and some still open. But others said the record spoke for itself.

“Kagan’s performance as dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups,” Guy-Uriel Charles, a black law professor at Duke, wrote last month in an oft-cited post.

During roughly the same period that Ms. Kagan was at Harvard, Mr. Charles wrote, Yale Law School hired just 10 faculty members; 5 were women, and only one was a minority.

Ms. Kagan’s track record on diversity improved during the last year when she became solicitor general. In that office, she has hired six people — three women and three men (one white, one Asian and one Indian).

Lester K. Spence, a political scientist at Johns Hopkins University, wrote on theroot.com, a Web site devoted to black issues, that Ms. Kagan appeared to be more concerned with ideological diversity than with diversity of race or gender.

“President Obama wants us to support his choice not because she’s got a strong record, not even because she has a particularly visible record, but because he knows her,” Mr. Spence wrote. “I’m not buying it,” he added. “And even if Kagan ends up being the best justice this side of Thurgood Marshall, you shouldn’t either.”

After it was clear that Mr. Obama, the first black president, would nominate Ms. Kagan, several black women wrote to him saying they were disappointed that he had not nominated a black woman.

The women, who included Melanie Campbell of the National Coalition on Black Civic Participation, also said they wanted to learn more about Ms. Kagan’s record on civil rights.

The administration has been pushing back against any suggestion that Ms. Kagan has been insensitive on racial matters, as have some of her black supporters.

Ronald S. Sullivan, a black law professor whom Ms. Kagan recruited to Harvard, wrote on thegrio.com, another site devoted to black issues, that “no elite law school has done enough” with respect to minority hiring. But, he noted, her spurning of the Royall chair “was a significant statement made by the dean of one of the nation’s top law schools.“

And, he said, Ms. Kagan had expanded the clinical teaching program at Harvard so that “thousands of indigent and under-represented citizens received quality legal services that they otherwise would not have been able to afford.”

Randall L. Kennedy, another black professor at Harvard Law, also strongly defended Ms. Kagan’s hiring practices. He said in an article in The Huffington Post that no dean was solely responsible for hiring faculty, with each one requiring a majority if not a supermajority of votes. This, he said, gets to be a complicated proposition.

Still, he said, Ms. Kagan supported programs that have helped advance minorities, and she helped form a committee to identify promising racial minority candidates.

While she was dean, an average of about 30 percent of the entering classes were minorities, up from about 25 percent in the previous six years, according to a Harvard official.

One of Ms. Kagan’s strongest backers has been Charles J. Ogletree Jr., perhaps the most prominent black law professor at Harvard. He has noted in interviews and articles that she has been supportive of men and women of color among both students and faculty.

“If you look at her whole record, ” Mr. Ogletree said in an interview on Thursday with Essence.com, “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.”



http://www.nytimes.com/2010/05/13/us/politics/13marshall.html?nl=us&emc=politicsemailema1


Kagan’s Link to Marshall Cuts 2 Ways

By CHARLIE SAVAGE
May 12, 2010
New York Times

WASHINGTON — In the spring of 1988, Justice Thurgood Marshall assigned a clerk, Elena Kagan, to write a first draft of his opinion in a case considering whether a school district could charge a poor family for busing a child to the nearest school, which was 16 miles away.

















Associated Press

Thurgood Marshall at his Supreme Court confirmation hearings in 1967. Elena Kagan clerked for him 20 years later

A majority on the Supreme Court ruled that the busing fee was constitutional. Justice Marshall, who was 80, was incensed and wanted a fiery dissent. But the 28-year-old Ms. Kagan, now a Supreme Court nominee, thought her boss’s legal analysis was wrong.

Ms. Kagan, recalling the incident in a 1993 tribute after his death, wrote that after she told him that “it would be difficult to find in favor of the child” under legal doctrine, he called her a “knucklehead.” He “returned to me successive drafts of the dissenting opinion for failing to express — or for failing to express in a properly pungent tone — his understanding of the case,” she wrote.

Because Ms. Kagan has never been a judge and has produced only a handful of scholarly writings, clues to her philosophy are rare. In that vacuum, liberals and conservatives alike are attributing special significance to her clerkship year with Justice Marshall, who led the civil rights movement’s legal efforts to dismantle segregation before becoming a particularly liberal Supreme Court justice.

But while Ms. Kagan, a former board member for the Thurgood Marshall Scholarship Fund, clearly relished the experience and admired the justice as a historic figure, she appears to have had a far more ambivalent attitude toward his jurisprudence, according to a review of his papers at the Library of Congress, her comments over the years about him and interviews with her fellow clerks and colleagues.

In analyzing why Justice Marshall was adamant about siding with the poor family in the busing fee case, for example, Ms. Kagan explained in her tribute that he “allowed his personal experiences, and the knowledge of suffering and deprivation gained from those experiences, to guide him.”

But Ms. Kagan did not share those experiences, notes Charles J. Ogletree, a Harvard law professor who heads an institute named after Justice Marshall’s mentor, Charles Hamilton Houston, and who has talked over the years with Ms. Kagan, a former Harvard Law School dean, about her clerkship.

“It’s absurd to compare Elena Kagan’s judicial philosophy to Thurgood Marshall’s philosophy,” Professor Ogletree said. “Their times and life experiences are different. They lived in different worlds. The reality is that Elena Kagan learned a lot from Justice Marshall, but she will not be overly influenced by Marshall or anyone else. She is her own person.”

Some differences in the views of Justice Marshall — who once described his legal philosophy as, “You do what you think is right and let the law catch up” — and of his former clerk are striking. For example, he believed that the death penalty was always unconstitutional. But during the confirmation process when she was named solicitor general last year, Ms. Kagan said she had no quarrel with the death penalty.

“I am not morally opposed to capital punishment,” Ms. Kagan wrote to a senator, adding that she “accepted” the Supreme Court’s precedents upholding “the death penalty as constitutional in a wide variety of cases and circumstances.”

Nevertheless, the political dynamics of Ms. Kagan’s nomination have led figures on the left and the right to gloss over such differences.

After some liberal commentators questioned whether Ms. Kagan could be trusted, President Obama declared that Justice Marshall’s “understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people, has animated every step of Elena’s career.”

Conservative critics, too, have sought to link Ms. Kagan closely to Justice Marshall. Among them, Curt Levey of the Committee for Justice has decried a supposed “Kagan/Marshall judicial philosophy,” noting that in her tribute she described as a “thing of glory” her former boss’s view that courts should show special solicitude for disadvantaged parties.

By 1987, as the Rehnquist court was moving to the right, Justice Marshall was “in his decline and alienated, marginalized” and, in hiring clerks like Ms. Kagan, “looking for really bright people to kind of put a new charge in him” and to help him write dissents, said Juan Williams, a Marshall biographer.

“She didn’t come to him because she was necessarily of like mind, although she was coming out of the same political milieu,” Mr. Williams said.

Justice Marshall nicknamed Ms. Kagan “Shorty” and sometimes referred to her as “Little Bits,” though they all got called “knucklehead” from time to time, recalled Harry Litman, another clerk that year. The musty chambers were crammed with books, African artifacts, red Naugahyde chairs and ungainly desks.

Justice Marshall did a lot of work in an anteroom to his main office. There, he sat in a comfortable chair across a large table from his clerks to discuss cases, sessions that inevitably digressed into stories the justice would tell about his life.

“You’re at the same time laughing because he’s such a great raconteur and also thinking it’s unbelievable that these things happened in the lifetime of this person in whose presence I’m sitting, and their life made such a difference in re-creating a South where he had to be out of town by sunset or his life was in danger,” recalled Carol Steiker, another clerk that year.

One task of the clerks was to write brief memorandums evaluating the thousands of cases appealed to the Supreme Court. Most written by Ms. Kagan are straightforward, but some caution against taking a case because of how the conservative justices might rule or elevate outcomes over the law.

For example, on Oct. 7, 1987, she analyzed a case in which a judge dismissed an immigrant’s guilty plea over a minor infraction because it could jeopardize his application for permanent residency. The Justice Department appealed, saying the district court had exceeded its authority.

Ms. Kagan wrote that the Justice Department’s view was “almost certainly correct.” Still, she recommended against taking the appeal because the judge had “ensured an equitable result” at “no great cost to the Republic.” Justice Marshall scrawled “D” for “deny” at the top of her memorandum.

In her hearing last year, Ms. Kagan distanced herself from those writings, saying her job was to “channel” Justice Marshall’s mind-set.

A clerk to a justice is “trying to facilitate his work, and to enable him to advance his goals and purposes as a justice,” she said, adding: “He knew what he thought about most issues. And for better or for worse, he was not really interested in engaging with his clerks on first principles.”

Indeed, while her 1993 tribute is couched in fond terms, the bulk of her remarks about cases that arose in her clerkship year concerned their disagreements.

In one case, he voted not to let a man pursue a discrimination claim because his lawyer, who was blind, accidentally left his name off an appeal, and a deadline expired. Ms. Kagan and fellow clerks sought to persuade Justice Marshall to change his vote until he grew annoyed and, pointing to his framed judicial commission on the wall, asked them whose name was on it.

But the case Justice Marshall cared about the most that year, she wrote, was the school bus dispute in which she had trouble justifying his dissent. The final draft seems to implicitly acknowledge that his vote rested less on legal doctrine than on his notion of social justice.

The case, it says, asked “whether a state may discriminate against the poor in providing access to education,” adding: “I regard this question as one of great urgency. As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the formal label under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake.”