Congressional Black Caucus Has Questions For Kagan On Race, Criminal Justice

WASHINGTON, D.C. – As Senate hearings began, the Congressional Black Caucus sent questions to Senate Judiciary Committee Chairman Patrick J. Leahy requesting that Supreme Court nominee Elena Kagan be asked to respond. The letter signed by CBC Chair, Barbara Lee (D-CA) and Congresswoman Eleanor Holmes Norton (D-DC), Chair of the CBC Judicial Nominations Taskforce, applauds Kagan’s outstanding background and President Obama for nominating “a person who understands the real-world consequences of judicial decisions.” However, the CBC submitted questions to clarify issues related to race and criminal justice.

The complete letter is below.

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Senator Patrick J. Leahy

Chairman

Committee on the Judiciary

224 Dirsken Senate Office Building

Washington, DC 20510

Dear Chairman Leahy:

        The Congressional Black Caucus (CBC) believes that Elena Kagan possesses outstanding academic and professional credentials, and applauds President Obama for nominating a person who understands the real-world consequences of judicial decisions.  However, the CBC has questions about the nominee’s views on issues of particular importance to African Americans.  The CBC respectfully requests that the Senate Judiciary Committee pose the following questions to the nominee:

1.      In a 1997 memorandum to President Clinton, you supported reducing the sentencing disparity between crack and powder cocaine to 10:1.  Do you support eliminating the sentencing disparity?

2.      In a case pending before the Supreme Court in 1997, Piscataway Bd. Of Education v. Taxman, in which a school district used its affirmative action policy to lay off a white teacher instead of a black teacher with the same seniority, the then Solicitor General wrote a memo that suggested filing a brief arguing that the teacher should not have been laid off in this particular case, and that if the court adopted this position, it would not have to address whether Title VII “always precludes non-remedial affirmative action.”  You wrote on that memo, “I think this is exactly the right position – as a legal matter, as a policy matter, and as a political matter.”  Are race-based remedies ever permissible?  If left to you alone, would you have applied the “mend it, don’t end it” affirmative action policy to race-neutral remedies only?

3.      Please explain why you apparently opposed the formation of a commission on race by President Clinton during his second term.

4.      During your tenure as Dean of Harvard Law School, the law school faculty grew by almost 50%, with the hiring of 43 full-time faculty, including 32 tenured or tenure track.  Of those 32, please explain why only one minority, an Asian American, and only seven women were hired, and, of the 11 non-tenure track faculty, why only three minorities – two black and one Indian – and only two women were hired.

5.      While Dean, you apparently offered faculty positions to several minority candidates who turned down the offers.  How many were African American?

Barbara Lee                                                                 Eleanor Holmes Norton

Chair, CBC                                                                  Judicial Nominations Taskforce Chair, CBC

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