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.