The NY Times, Elena Kagan and Batson

The New York Times has an article up that will appear in the front section of Wednesday’s print edition decrying the fact that racial selection and exclusion still maintain in jury selection for trials in the South.

Arguments like these were used for years to keep blacks off juries in the segregationist South, systematically denying justice to black defendants and victims. But today, the practice of excluding blacks and other minorities from Southern juries remains widespread and, according to defense lawyers and a new study by the Equal Justice Initiative, a nonprofit human rights and legal services organization in Montgomery, Ala., largely unchecked.
While jury makeup varies widely by jurisdiction, the organization, which studied eight Southern states — Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina and Tennessee — found areas in all of them where significant problems persist. In Alabama, courts have found racially discriminatory jury selection in 25 death penalty cases since 1987, and there are counties where more than 75 percent of black jury pool members have been struck in death penalty cases.
The Equal Justice Initiative study argues that jury diversity “is especially critical because the other decision-making roles in the criminal justice system are held mostly by people who are white.” In the eight Southern states the study examined, more than 93 percent of the district attorneys are white. In Arkansas and Tennessee, all of them are white.

Race based selection and exclusion in the formation and empanelment of juries is prohibited, and rightly so. It is considered improper, unethical and a violation of duty to the court, bar and public. And rightfully so. There mere inference of it, as is made clear by the numerous instances discussed in the NYT article can bring strong questions of propriety, especially for representatives of the people, i.e. prosecutors. And, as the Equal Justice Initiative points out, the systematic exclusion of people of color from public leadership roles, like prosecutors, is just as problematic and disgraceful.

It is a righteous thing the New York Times has emphasized and drawn attention to the depressing report by the Equal Justice Initiative on racial exclusion in the law. Which makes it all the more distressful that the famed Gray Lady of the Times never evinced the same concern about analogous inferences which could just as easily be drawn about Elena Kagan’s record of faculty hiring at Harvard Law School.

First raised by Duke Law Professor Guy Uriel Charles, and noted by other bloggers like Glenn Greenwald and yours truly (but never substantively addressed or reported by the New York Times or other major media), Kagan has a record that puts the examples in the New York Times article on Southern jury biases to shame. From Professor Charles:

But what about people of color? How could she have brokered a deal that permitted the hiring of conservatives but resulted in the hiring of only white faculty? Moreover, of the 32 new hires, only six seven were women. So, she hired 25 white men, six white women, and one Asian American woman. Please do not tell me that there were not enough qualified women and people of color. That’s a racist and sexist statement. It cannot be the case that there was not a single qualified black, Latino or Native-American legal academic that would qualify for tenure at Harvard Law School during Elena Kagan’s tenure. To believe otherwise is to harbor troubling racist views.

Third, what is the justification for putting someone on the Supreme Court without a demonstrated commitment to opening barriers for women and people of color? Kagan’s performance as Dean at Harvard raises doubts about her commitment to equality for traditionally disadvantaged groups. I am eager to be convinced that she is committed to full equality for marginalized groups, but I’d like to see the evidence.

As I noted in the above linked post, the seminal Supreme Court case on racial selection and exclusion in jury empanelment (voir dire) is Batson v. Kentucky. If Elena Kagan’s Harvard hiring record were considered under the Batson standard, it would raise immediate serious questions. While, as the Times article points out, there have been weaknesses in the application of Batson (in fact, that is the point of the article and the Equal Justice Initiative report), the fact remains serious ethical questions are raised by an appearance of violation.

So, why is it that the New York Times is suddenly up in arms about racial selection and exclusion in Southern Juries, but has no similar lofty concerns about the same inferences about the putative next Supreme Court Justice? Democrats, including then Senator Barack Obama, groused about the nomination of Sam Alito and John Roberts as it was; can you imagine the shrieking and howling that would have occurred if either Alito or Roberts had a record with the negative racial exclusionary inferences of that possessed by Elena Kagan? Why are they all so silent and credulous now in the face of damning inference?

32 replies
  1. oldoilfieldhand says:

    Well, no wonder she is such a capable consensus builder! Also, too…Were there any other denominations besides Catholics and Jews hired?

  2. JTMinIA says:

    (bmaz – may we have a new daily oil-spill thread, please? I don’t want to clutter up threads that concern issues that will be moot when we all die. tee hee)

    • bmaz says:

      Meh, use the old one for a bit; it is only up to 250 some odd comments. We now have a pattern of running the oiler threads up to 500+ comments you know! And can I say, I really do not like this Lubschenko lady who is head of NOAA

      • substanti8 says:

        And Kagan was nominated by a black President.  Irony makes the world go ’round …

        I really do not like this Lubschenko lady who is head of NOAA.

        Please tell us why.  I’ve been under the impression that she is one of Obama’s better appointees.

        BTW … the NOAA web site has been an excellent source of satellite photographs of the oil spill.

      • substanti8 says:

        I really do not like this Lubschenko lady who is head of NOAA.

        Here’s some glowing praise for Jane Lubchenko (no ‘s’) from The Seminal:


        “This may be his most important administrative appointment yet.

        Dr. Lubchenco first came to my attention in the summer of 2002, when she was being interviewed about the dead zones showing up off the Oregon coast.  She is a professor of oceanic biology and zoology at Oregon State University, so not only was she then one of the best-versed experts on the effects of climate change on the oceans, she had a high level of local knowledge….

        By and large, the oceanic science community is extremely positive about her appointment.  She is an incredible networker, has experience testifying in front of congressional committees, and may be one of the best academic/scientific administrators active today.

        Perhaps most importantly, she understands that we need to act soon, particularly on ocean acidification, and on stopping the massive amounts of pollutants entering our oceans from rivers, large and small.  Many of her talks describe holistic approaches that would throttle the actions of industrial giants producing oil-based fertilizers, and of such crops as those from Monsanto-produced seeds which are made to work hand-in-hand with products like Roundup.”

  3. klynn says:

    Great post. Eyebrow raising due to the seriousness of the content IRT the Supreme Court.

  4. BoxTurtle says:

    Why are they all so silent and credulous now in the face of damning inference?

    Because she was nominated by a black president, which gives a certain amount of protection to accusations of racism. Also, if NYT wants to keep access to high level white house sources for unattributed information *cough* Rahm *cough* they’d better not say anything mean about Kagin.

    Around here, lawyers don’t seem to care as much about color. They want jurors of slightly below average intelligence with no backbone who can be lead to the desired conclusion by any sharp dresser. One juror pool I was in, the prosecutor seemed to want to exclude anybody with a degree.

    Boxturtle (Disclaimer: Because I worked for Lexis, I was rarely allowed to serve anyway)

  5. SouthernDragon says:

    Arrest a young AA/Latino male, charge him with a felony (simple possession of over 20 grams of weed will suffice), get a conviction and you have a man who, if and until his civil rights are restored, cannot vote, cannot serve on a jury and cannot get a decent job. Until 2 years ago it was almost impossible for a person of colour to have their civil rights restored under Florida’s system, which was designed for just that purpose.

    • posaune says:

      on top of which, the AA/Latino must know beforehand to ask to “remain silent,” as of today, that is.

  6. victoria2dc says:

    While I wouldn’t count on it, but maybe Ms. Kagan will just float away/roll away from the scene in a big (and I mean BIG) ball of oil that’s on its way to Florida.

    However, there is some real OT action taking place on Facebook. Go and see how you can make some trouble for the former president and war criminal, G.W. Bush, who is not online with his cigarette smoking wife Laura! My… my.!/georgewbush?v=wall&ref=mf

  7. bayofarizona says:

    I think Nate Silver did some kind of statistical calculation on Kagan’s record and found it in-line with other law schools. He did admit that we are supposed to be holding liberals to a higher standard, but didn’t go into details.

    Basically as long as Obama does the minimum acceptable for a member of the Democratic Party, we are supposed to be okay with it.

    • bmaz says:

      Like Nate Silver knows his ass from a hole in the ground on such an issue. It is a fucking hilarious conclusion considering that the University of Chicago refused to rehire her as a tenured professor after her Clinton Administration stint specifically because she had such a pitifully thin work record as an academic.

      • earlofhuntingdon says:

        Doubly unusual in that top governmental work experience (in this case, for an administrative law specialist) usually enhances an academic’s credentials. It seems that Ms. Kagan’s gummint work displayed her political acumen, whatever that may be, but wasn’t related to her academic specialty. Hence, she was moonlighting doing something that failed to enhance her academic expertise, though it may have enhanced her political street cred. Her rights as a tenured professor expired after the normal up to two year sabbatical and Chicago cut her loose, a result she expected and/or desired.

        She may have liberal tendencies, well-hidden for the most part, but she has not promoted progressive causes in two decades. As has been said ad nauseum, she is an Obama clone, right-center, with a penchant for pleasing the powerful around her rather than assuming the mantel as one of the powerful. In the rarefied atmosphere of credible Supreme Court nominees, that makes her a relative bureaucrat rather than a force to be reckoned with.

        That’s hardly the picture of change or even a drawing that might maintain the status quo. Welcome to the Right seems much more likely an outcome of her appointment.

        • bmaz says:

          To the extent Kagan is any “force to be reckoned with” on the Big Bench, I find it very hard to believe it will be in any direction progressives or even true liberals (whatever the distinction is) cherish. I had issues with Sotomayor, mostly due to her history of being reasonably conservative on law and order type of fundamental and procedural criminal issues; however, across the board, Sotomayor is a combination of Stevens, Douglas and Brennan compared to Kagan. If there were not three such young butt naked right wing Federalist Society hard core conservatives like Roberts, Alito and Thomas, with a still relatively young Scalia on the Supremes, I would not recoil in as much horror at the dereliction of Obama in elevating a mushy, bullshit plutocrat ladder climber like Kagan. But considering that such a situation does indeed exist, it may be as unforgivable, if not more so, than any of the dishonesty and fraud with which he sold himself to a still shockingly lemming like public to get elected.

      • bayofarizona says:

        I still think Kagan would be a decent pick next year with a sub-55 D majority. But this was our chance for somebody great, just like after 2008 conservatism was discredited – huge opportunities just thrown away.

        • bmaz says:

          I respect that; however without some experience, of any kind, in the regular court system (as opposed to a couple of last second spoon fed guest appearances in the snotty rarified air of the Supreme Court), or any kind of traditional experience or link to the law that citizens have to deal with, I think Kagan is patently unfit for duty. There has NEVER, EVER been a Supreme Court Justice with the complete absence of any traditional experience in the people’s legal system as Elena Kagan. Only a detached arrogant entitled elitist like Barack Obama would appoint her, and only a detached arrogant self entitled person like Kagan would think she is worthy. It is sickening to me.

        • bmaz says:

          Back to your comment @11, I probably owe you and Silver an apology here. I assumed for some reason, stupidly because the subject of this post is racial exclusion in hiring, that Silver had evaluated Kagan’s academic output as others have attempted to do. But having now gone and read his old post on this in full, he indeed took a look at Kagan’s hiring record. But to my eye, the best Silver accomplishes is to maybe give a possible partial explanation for some of the atrocious record, but still leaves it looking pretty shaky for Kagan. I agree it is hard to draw hard conclusions as to her motivations, but the hard numbers sure lend the appearance of being pretty damning.

          And, to be honest, I just thought this was an interesting dichotomy on the NYT’s part in how and when they get up in arms over racial exclusionary situations. As to Kagan herself, I am disturbed by her hiring record, but honestly that is probably not as big an issue for me as her relative lack of any experience in the common court system I have discussed at length in previous posts.

    • earlofhuntingdon says:

      I agree that Nate Silver’s progressive credentials are more than tarnished. He’s wrong, for example, about his major conclusion: Kagan’s track record is not on par with her peers. The proper comparison group is the deans of the nation’s top ten law schools, not the scores of the top 50 or top 250. Harold Koh when at Yale beat Kagan’s diversity in hiring by a mile.

      Another thing Silver also misses is that if it requires such careful parsing of her record, to give it a progressive color, then by definition her record is not progressive. Nate is just jumping on the ObamaWagon.

      • bmaz says:

        Oh crap, anybody pitching that line of total horseshit, including the legal know nothing Nate Silver, is totally full of dung. There; I used about every iteration of poop in describing the statement, which is exactly what it is. Any idiot pitching this bunk ought to just go take a look at the academic record of Goodwin Liu, who is a full decade younger than Kagan and compare it to the thin gruel of Kagan’s academic record. Arguing that Kagan’s performance as an academic is on par with peers that have been elevated to the stratospheric heights Kagan has undeservedly been, is insane and a duplicitous joke.

  8. BMcGarth says:

    Why isn’t there more out cry about this woman.

    Illustrative that the Corporate libruls,Nate Silver,Rachel Maddow & Olberman have their pick….so screw grassroots progressives.

    Kagan is no progressive never was one…Just like the guy who appointed her,a corporate shill.

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