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Kagan and Black America

A Republican senator pledged to turn Barack Obama’s health care bill into his Waterloo, a reference to Napoleon’s defeat which put an end to his reign of conquest in Europe. Of course the mirage-like reform did pass and the Republicans’ prediction didn’t quite pan out as they hoped. Yet Obama is facing the beginning of the end of unqualified support in the black community because of his nomination of solicitor general Elena Kagan to the Supreme Court.

The Kagan choice is an awful one, and the response to the travesty shows the cracks in the teflon that are beginning to form. This nomination is an absolute disaster for black people, for civil rights, for the Democratic party and for democracy itself. The fact that Obama would even attempt to get support for such a bad nomination is proof that he succeeded in dismantling black politics and in making all progressive politics subservient to his whims. But every conqueror goes to the well once too often and sows the seeds of defeat. The nomination of someone whose record ought to make her anathema to his supporters is an insult. The insult is the direct result of silence and acquiescence on the part of those who should have spoken up against Obama policies much sooner. They too bear responsibility for this awful choice.

Kagan is a blank slate careerist with political expediency as her only qualification. She has never served on the bench and has very little history of making legal opinions on any subject. As solicitor general to the president who appointed her she has of course marched in lock step with Obama administration goals of expanding the power of the executive branch at the expense of our constitutional rights.

Her nomination is troubling for many reasons. Once it became widely known that she could not find one black person worthy to hire as a tenure track law professor when she served as dean of Harvard law school, she and her boss began to get if not a cold shoulder, a lukewarm one. Indeed, this white woman could find only six white women to hire, out of a total of 32 positions filled during her tenure.

Obama has gotten public support from some of the usual suspects. Like clock work, Obama toadies like Al Sharpton fell into line. Sharpton declared that Kagan is “worthy of the support of the civil rights community.” The board of the NAACP did endorse Kagan, giving her credit for increased black admissions to Harvard but without making any mention of her indefensible hiring record. Other organizations have been noticeably muted in their responses.

The NAACP Legal Defense and Education Fund released a statement that was not exactly supportive: “As Solicitor General, Ms. Kagan has an exemplary record on most issues important to us. At the same time, we are interested in learning more about her entire civil rights record. We look forward to reviewing this record, as we do with each Supreme Court nomination. It is our hope that, if confirmed, Ms. Kagan would continue the powerful legacy of Justice Stevens, whom she would replace, of upholding the Constitution in a way that has guaranteed equality for all Americans.”

So obvious is the lack of support from usually supportive quarters that the Obama administration has been forced into ham handed efforts to shore up their nominee. When a group of law professors accurately analyzed Kagan’s abysmal hiring record the Obama administration released diversity “talking points” meant to silence critics. They made bizarre claims that black law professors had been offered positions at Harvard but didn’t want them. Randall Kennedy, a black law professor who testified on behalf of a white man convicted of a hate crime, was among the defenders. In order to make a non-issue of a very big issue, Kennedy claimed that Kagan didn’t really have the power to hire professors at the law school she was in charge of leading.

Just as troubling as Kagan’s dismal diversity record is the role she played in the Clinton administration in ensuring the continuation of disproportionate sentencing for crack cocaine convictions. Kagan urged Clinton to ignore the recommendations of his Federal Sentencing Commission which called for an end to the injustices in sentencing. “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites.”

The Obama administration is asking black people to defend the record of someone who played a direct role in swelling jail cells with black people. Shame on all of those who do.

Hopefully the disappointed Obamites will learn a lesson from their past behavior. Why shouldn’t their idol think that he can insult their intelligence?

So far he has had no reason to believe that there are any limits on what he chooses to do. If there is anything positive in the Kagan nomination it is the possibility that the dysfunctional relationship between Obama and his supporters has finally ended.

MARGARET KIMBERLEY’s Freedom Rider column appears weekly in Black Agenda Report. Ms. Kimberley lives in New York City, and can be reached via e-Mail at Margaret.Kimberley(at)BlackAgandaReport.Com.

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Margaret Kimberley writes the Freedom Rider column for Black Agenda Report, where this essay originally appeared. 

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