Update: 5/13/10 - 5:12 pm - Dr. Boyce appears on MSNBC to discuss Elena Kagan's nomination.


I want to cheer for President Barack Obama. I want to believe that his decisions are sound, intelligent and good for our nation, but that trust is undermined at times, and to the ire of some of my friends, I can't help but share what's truly on my mind. My discomfort with Obama's decision-making ability comes to the forefront of my conscience when I evaluate Elena Kagan, Obama's most recent nominee to the Supreme Court.

On the surface, Kagan seems okay. She presents herself as the standard liberal who we would expect Obama to nominate, someone who might be a small step toward filling the incredibly large shoes of retired Justice John Paul Stevens. As they say in the military, "Check." Kagan has also shown the ambition and focus necessary to make herself into a star in the legal profession, opening doors for women everywhere she went. "Double-check." Finally, her experience as solicitor general means that she has worked closely with the Supreme Court in the past, and that she would also be good at building a consensus among other members of the court. "Check, check, check."

1) Kagan was a professor at the University of Chicago: Isn't Obama also out of Chicago and didn't he also teach at that same university? Didn't he recruit nearly half of the city of Chicago to Washington when he was elected? Does that mean that every qualified politician must live in Chicago at some point in his or her life?

2) Kagan was dean of Harvard Law School: Didn't Obama also graduate from Harvard? Wasn't Kagan appointed by Lawrence Summers, Obama's chief economic adviser (the same guy who disrespected the scholarship of Cornel West and said that women might possibly be intellectually inferior to men)? Does this mean that we sought out the best person for the job or the best Obama crony for the job? It appears that either attending school or playing basketball with President Obama is more important than actually having solid credentials.

Also, did we make a law stating that Harvard and Yale are the only legitimate law schools in America? Does it make any sense whatsoever that eight out of nine of the current justices went to Harvard or Yale for their law degrees? If Kagan is selected, that will be a Harvard-Yale sweep, completely undermining the ability of the court to connect to the common man and woman in our country. If you somehow think that every bright person in the United States comes out of Harvard or Yale, you should only remember that former President George W. Bush graduated from both of these schools. Yes, my friends, getting all of our justices (and most of our presidents) from the same two universities means that we are not interested in finding the best people for the job. Excluding 99 percent of America from these opportunities severely weakens our nation.

3) Did you know that Kagan has ties to Goldman Sachs, the company now accused of ripping off investors? In 2008, Kagan was a member of the Research Advisory Council for the Goldman Sachs Global Markets Institute. No, this doesn't imply that Kagan is as dirty as the rest of the dirty bankers, but we are reminded of (again Obamaesque redundancy) the Wall Street ties of many of Obama's best political buddies. As Obama claims to fight Wall Street during his time as president, just wait to see how many members of his team take Wall Street jobs when their political careers are over.

4) No experience on the bench? Are you kidding me? Again, I am not here to say that Kagan is incapable of serving as an adequate Supreme Court justice. After all, Clarence Thomas can do the job, so pretty much anyone can handle it. But don't you think for one second that there might be another brilliant legal mind out there who has actually served on the bench who might also be an adequate or perhaps (surprise!) better nominee than Kagan? But this hypothetical candidate doesn't have the benefit of hanging out with President Obama at Harvard or the University of Chicago, which makes her inherently unqualified for the job. Unfortunate.

5) Here's the kicker - Kagan didn't hire one single African American professor while serving as dean of Harvard Law School. Yes, my friends, that's racist. Given all the racism in academia (black professors are always passed over for positions for which they are qualified, since the elitism of academia is very Jim Crow-like in nature), it is quite telling that President Obama would be willing to nominate someone who has shown a clear bias against hiring people of color. Ethnic diversity was clearly at the bottom of the Kagan priority list, since you can't convince me that Harvard University isn't receiving scores of applications from top black attorneys and law professors from throughout the nation. According to Duke University Law professor Guy-Uriel Charles, Kagan had 29 hires during her tenure, and none of them were black, Latino or Native American (28 were white and one was Asian). So we can either believe, as Kagan appears to think, that there is no black person on earth qualified to be hired at Harvard Law School or that she sat idly and allowed a racially discriminatory set of hiring practices steal opportunities from promising young legal minds. Given that only Harvard and Yale grads need apply for the Supreme Court under Obama, Kagan (like Thomas) will gladly accept the benefits of affirmative action, and then pull the ladder up behind her. As a black man, it does me no good to support the idea of having yet another Harvard-educated liberal on the Supreme Court who seems to think that black and brown people are second-class citizens. I've seen enough of that.

The White House is in defense mode, attempting to argue that Kagan is the best that black folks can expect to receive. An article by black Harvard Law professor Randall Kennedy tries to defend Kagan's abysmal hiring record by explaining the intricacies of the Harvard Law School hiring process. I honestly wonder if Kennedy's arguments are focused on seeking racial justice or about maintaining the political power of the Harvard University Law School. A deeper investigation of Kagan's hiring record, though, shows that she hired, "one white man, three white women, one Asian man and one Indian man." So, if we buy in to the idea that Kagan was somehow the most powerless Harvard Law School dean in history (and thus had no power to decide who the school chose to hire), I would presume she had some say in the hiring of her staff when she served as solicitor general of the United States.

Also, if Kagan was not able or willing to promote diversity for underrepresented minority faculty while serving as (in the words of Randall Kennedy) "the single-most influential member of the faculty," why would she be expected to get the job done while serving on the Supreme Court? Salon.com does an excellent analysis of Kagan's poor hiring record, explaining why the White House really has no defense on this issue. The truth is that Kagan may have cared for black and brown people in her heart, but she didn't have the courage or desire to risk her personal success for the sake of supporting people of color. That makes her no different from Thomas Jefferson, who despised slavery but did not have the moral courage to fight it. I am tired of African Americans simply taking what we can get. We deserve the same respect as everyone else.

I do not support the nomination of Kagan to the Supreme Court. Perhaps next time, we can find the best person for the job. If America is truly a melting pot and meritocracy, then why does the brown stuff always seem to get left at the bottom? Perhaps if I were a white male from Harvard University, I might understand the secret.

Dr. Boyce Watkins is the founder of the Your Black World Coalition and the author of the new book, "Black American Money." To have Dr. Boyce commentary delivered to your email, please click here.