Kagan record on race spurs some doubts

Some groups still are trying to glean Supreme Court nominee Elena Kagan's beliefs from fragmentary evidence.

WASHINGTON -- On the eve of her Senate confirmation hearings, Elena Kagan's record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.

Their reservations have introduced the first substantive division among liberals in what otherwise has been a low-key partisan debate over Kagan's merits to replace Justice John Paul Stevens.

The uncertainty among some on the left is particularly striking, given that she was nominated by the nation's first black president.

Decades after the height of the civil rights movement, questions involving race and ethnicity persist as a recurrent theme before the Supreme Court, and attitudes on those issues remain a significant prism through which nominees are evaluated by those on the left and the right.

The National Bar Association, the main organization of black lawyers, has refrained from endorsing Kagan, giving her a lukewarm rating. The group's president, Mavis Thompson, said it "had some qualms" about Kagan's statements on crack-cocaine sentencing and what it regards as her inadequate emphasis while dean at Harvard Law School on diversifying the school along racial and ethnic lines.

Others have expressed reservations about Kagan's views on affirmative action, racial profiling and immigration.

Several liberal groups that are stalwarts on civil rights matters have uncharacteristically hung back, trying to persuade Democratic senators to press her on such issues during the hearings set to begin Monday.

Some, including the Mexican American Legal Defense and Educational Fund, said they still are trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan's statements and actions and said they are uneasy.

"This is a complicated nomination," said Barbara Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law, which hasn't yet taken a position on Kagan. "There isn't a judicial record to review, indicating her views on critical civil rights matters," Arnwine said.

"And otherwise, the civil rights record that exists is thin and mixed."

Republicans have been critical of Kagan on other grounds, focusing on what they characterize as her liberal philosophy and, more specifically, her refusal to sponsor military recruiters for a period while dean at Harvard Law.

White House officials have said that she would prove to be an impartial justice, and they have rebutted the critique of Kagan on race, noting, for example, that the law school's final hiring decisions were made by committee.

No Senate Democrats have signaled that they are wavering on Kagan's confirmation, but the hesitancy within parts of the civil rights community is a reminder that, when it comes to a lifetime seat on the nation's highest court, presidential allies can prove as vexing as opponents.

In 2005, criticism from conservatives prompted President George W. Bush to rescind the short-lived nomination of White House Counsel Harriet Miers.

Some women's groups have come forward to support Kagan. So have the NAACP and the NAACP Legal Defense and Education Fund.

Still, that group cited "some concerns" and emphasized that the "nature and extent of Elena Kagan's record on civil rights" makes it especially important for the Senate Judiciary Committee to explore "all ... areas affecting equal opportunity and racial justice."