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Sunday, May 09, 2010

On Kagan and HLS Hiring, Again...

I've been off the box the last few days but, as I'm catching up, I see that there's a bit of a tempest lately over the hiring record of Elena Kagan while she was Dean at Harvard Law School. A year ago, as Kagan's name was on the shortlist for the seat that would become Sotomayor's, I called attention on this blog to some comments from apparatchik Wendy Long, who argued that Kagan shouldn't receive credit for creating intellectual diversity on the HLS faculty since only 3 of her hires were conservatives or libertarians (Goldsmith, Vermeule, and Manning).  Now a number of profs are challenging (if not exactly attacking) Kagan because her hiring record at HLS is viewed as sub-optimal with respect to women and minorities. UPDATE: Kagan is now being reported as nominee for SCOTUS.

When I wrote my initial post, I noted that the arguments against Long would also be relevant to the arguments that could be made on other grounds related to diversity even though some differences between the two sets of arguments could plausibly be advanced. Now that those challenges have come to pass, it seems there are a few points worth reiterating and bearing in mind before casting aspersions on Kagan's commitment to diversity.

First, the dean of HLS (like other law schools) cannot simply appoint persons to the faculty of her choosing.  There's a sausage factory hiring process usually influenced if not controlled by an appointments committee. While the dean may appoint the chair and members of the committee, anyone familiar with academic politics knows it's unlikely that the chair will simply push through whichever candidates the dean may be excited about. Moreover, deans are usually leery of getting entrenched in appointments matters for fear of stepping on the toes of the committee and the faculty when they make their respective votes. Deciding membership on the faculty, after all, is often at the core of faculty governance. 

Second, if the number of conservatives or libertarians (or women or minorities) hired is thought relevant to gauge the open-mindedness or moderateness of a dean, then so too (if not equally in weight) would be the number of offers made by faculties and deans--one can't always lure every conservative away, even to a place like HLS. But Long (just like the new batch of critics) provide no information on the number of offers made but rejected to the target groups. Third, if a faculty wishes to improve itself, it is trying to think about hiring in terms of whether the prospective candidate is "above the median" of the existing faculty. That's a pretty high standard for a school like HLS and it may well be that the people who satisfy those criteria (whether conservatives or others) are so valued by the institutions where they are currently that going to HLS would require a substantial paycut (since, bracketing toys such as housing deals, HLS pays roughly along the lines of seniority). Now perhaps seniority is a dumb way to calibrate compensation, but one can imagine that it has some benefits too, such as helping protect the institution from claims that it discriminates (via pay differentials) against faculty members on the basis of race/ethnicity or ideology. 

In sum, taking credit or blame for faculty hiring is a bit like Presidents taking too much credit or blame in the managing of the economy. Senators (or citizens) should not think that Kagan's potential merits as a Justice are diminished in any substantial way on the grounds of the faculty hired during her tenure as dean. Problems in faculty hiring are the product of a "they," not a she. (Conversely, if Kagan were to trumpet her faculty hiring as an achievement that redounds only to her credit, such claims should be also dismissed.)

That's not to say Kagan's experience as HLS dean is utterly irrelevant. There may be some qualities that map well between dean and Justice.  Indeed, one fruitful line of inquiry would ask whether, for example, conservative and libertarian (or female or minority) student groups, professors, and individual students reacted positively to Kagan's deanship? Did they feel they were listened to, treated fairly, and included in the relevant realms of decision making? If the answers to those questions are yes, then those are marks of a good dean. (There are some suggestions the answer is no, here, btw.) And those signals of open-mindedness might indicate some of the liberal virtues we hope judges also exercise. But we should be careful in the end not to conflate the achievements  and virtues of a good dean with the achievements and virtues that conduce to being a good Justice.   

 

 

Posted by Dan Markel on May 9, 2010 at 11:51 PM in Article Spotlight, Blogging, Constitutional thoughts, Current Affairs, Dan Markel, Life of Law Schools | Permalink

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With respect to the hiring of women and minorities at HLS, I wouldn't let Kagan off the hook that easily. First, given that deans hand-pick members of the appointments committee, Kagan could have "stacked" it with folks who were committed to hiring women and minorities if diversity was truly a priority in her mind. Second, I'm confident that there are ample women and minority profs who meet or exceed the intellectual median at HLS. Importatnly, this includes folks who write in a variety of areas. Third, Harvard's name/elite status and relatively deep pockets make the odds of recruiting someone away from another school pretty good.

Posted by: anon law prof | May 10, 2010 5:03:42 AM

Anon,
you're right not to let Kagan off the hook entirely, but on each of those points consider:
a) even if the committee is stacked with diversity-firsters, you still have to get the rest of the faculty to agree on that agenda
b) not that it portrays a complete picture, but it might be helpful: Leiter's recent citation impact study shows that Harvard's median was 360. There are definitely a number of women who are above that number during the period measured, but most are at Harvard or Yale or other top 5 schools and/or near retirement. Of those, it would be worth knowing how many have been considered by Harvard, and what the relevant comparison looks like for minority superstars also.
c) The point about the Harvard name/deep pockets doesn't really address the point made in the post about Harvard's lock-step salary structure; moreover, the elite schools where most of these other superstar profs are also have deep pockets and are at least equally motivated to retain their superstars. Once you factor in the dual career/geography/personal preferences for climate or action (vis-a-vis Stanford/NYU/Columbia), etc., it's not surprising that the odds of luring that person are hard. Cf. the recent difficulties Yale has had in retaining people who would rather be living in NYC.
Anyway, I wonder if the arguments the anon law prof makes also apply to conservatives or libertarians. Maybe Wendy Long should get more credit!

Posted by: anonanon | May 10, 2010 11:25:59 AM

Also worth asking -- how many african-american hires did Yale, Stanford, and Chicago make collectively during the Kagan regime? I count one, but probably I'm missing some. If the number is nonetheless extremely low, the point stands -- it's not especially fair to blame one dean for a systemic failure.

Posted by: just the messenger | May 10, 2010 9:42:54 PM

Anonanon: Fair enough. But as folks have posted elsewhere, if Kagan can take credit for (increasing) the ideological diversity at HLS, she can also take the blame for the lack of racial diversity there.

Posted by: anon law prof | May 11, 2010 4:55:59 PM

I think that's fair. I think Markel's point is that she shouldn't be able to take much credit (or criticism) for that either.

Posted by: anonanon | May 11, 2010 8:34:34 PM

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