Elena Kagan’s “diversity problem” and Jewish privilege

Patrick Slattery Ph.D.


The reaction to the appointment of Elena Kagan to the Supreme Court in 2010 was a case study in how taboos are maintained in our society regarding the 600-pound gorilla of Jewish power. It is not just that little was said about the fact that she would be the third Jewish justice on the nine-member court in a country barely two percent Jewish, leaving the majority-Protestant country without a Protestant on the high court. It is not just that she was generally lacking in qualifications for the appointment and for pretty much every other job she has ever gotten. What was really interesting was how the Jewish media diverted attention from the phenomenon of Jewish power and privilege by raising the specter of White privilege. And when I say specter, I really mean ghost, because White privilege for all intents and purposes is dead and gone, as the Elena Kagan nomination “controversy” illustrates.

When Obama was set to make his second nomination for the Supreme Court, Kagan’s selection was neither a surprise nor ever seriously in doubt. She had already been on the short list of candidates to fill the first vacancy, which eventually went to Sonia Sotomayor. There were some voices raised, mostly on the “right,” regarding Kagan’s complete lack of judicial experience and her relative lack of courtroom experience. However, the truly interesting objections were raised by observers on the “left” regarding the lack of “diversity” in her recruitment of professors while she was the dean of Harvard Law School.

The liberal on-line magazine Salon published an article by four law professors from less prestigious schools noting that all but one of the 32 tenure-track professors hired while Kagan was dean were White. These professors, two of whom were black, one south Asian, and one with a half-Hispanic hyphenated surname (Luis Fuentes-Rohwer), make seven references to Whites in their 1679-word piece, yet never once use the word “Jew.”

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I first heard about this controversy on Democracy Now! during a discussion between Harvard Law Professor Lawrence Lessig and progressive blogger Glenn Greenwald. I immediately searched for a list of the professors to get an idea of the ethnic background. My internet search turned up a mass of discussion of the “race” of the professors, but not a list of names or any other indication as to their ethnic background. It was noted on some sites that the faculty at leading schools like Harvard were largely Jewish, and there was a list of all current law professors at Harvard, but nobody had a list of the 32 professors that Kagan hired. So, using the internet archive service called “the Wayback Machine,” I found a list of Harvard Law School’s tenured or tenure-track professors shortly before Kagan’s appointment and another shortly after her departure. Naturally, it came as no surprise to find that easily half of the list had Jewish-sounding surnames. Of course, surnames are not rock-solid indicators of someone’s ethnicity, so I went down the list one-by-one to see if I could find any reliable sources demonstrating that a professor either was or was not Jewish. Working alphabetically, at first it seemed it would be easy as two of the first professors whose backgrounds I checked were not just Jewish but Israeli. But it then started becoming tedious, as many of the younger recent hires have little biographical data on the internet. My preliminary results thereby are as follows:

Confirmed Jews: 8
Probable Jews: 7
Married to a Jew: 2
Probable non-Jew: 5
Confirmed non-Jew: 3
Uncertain: 7 

The eight confirmed Jews are Noah Feldman, Yochai Benkler, Gabriella Blum, Robert H. Sitkoff, Cass R. Sunstein, Mark Tushnet, Jesse M. Fried, and Jed Shugerman. Benkler and Blum are Israelis. The seven probable Jews are I. Glenn Cohen, Jody Freeman, John C.P. Goldberg, William Rubenstein, Michael Klarman, Daryl Levinson, and Benjamin Sachs. In the cases of Klarman and Levinson there were probable indications in addition to their surnames. The two professors married to Jews were Anne Alstott and Jeannie Suk. Alstott was married in a synagogue and her mother’s maiden name was Kincaid, so she also should be considered a probable Jew. Jeannie Suk is Korean (the lone “non-White”) and is married to Noah Feldman. There was quite a lot on the internet regarding this marriage, as Feldman is Orthodox and was lambasted by other Orthodox Jews for having married outside his group. He in turn complained that he and his wife were Photoshopped out of a picture of his Orthodox high school reunion. It is unclear whether Suk has converted to Judaism.

I could not make a determination regarding seven others — D. James Greiner, Adriaan Lanni, Benjamin Roin, Matthew Stephenson, George G. Triantis, Rachel Brewster, and Gerald L. Neuman. Even so, we have at least 16 on the Jewish or probably Jewish list, plus Suk. That means that non-Jewish Whites likely account for less than half of the appointments made by Kagan. However, Non-Jewish Whites make up 70% of the population of the United States. So where is the White privilege? Clearly, non-Jewish Whites were underrepresented among Kagan’s appointments, just as they are underrepresented at Kagan’s new workplace, the Supreme Court. Meanwhile, Jews, who make up only 2% of the U.S. population, get at least half of the appointments. In other words, their share of Kagan’s hirings was 25 times their share of the U.S. population. But all we heard in the media was that “all but one of her appointments was White.” This is a good illustration that for many of the most important jobs, fears of Whites being passed over in favor of Blacks benefiting from affirmative action are simply misplaced. It is clearly Jewish privilege that is crowding Whites out of these jobs. It may well be that the biggest harm to Whites caused by affirmative action is to distract Whites with a red herring.

In case you are wondering why it is that the media mislabels Jewish privilege as White privilege, it is because the media itself, of course, is to a large extent run by Jews and is itself a bastion of Jewish privilege. Rick Sanchez’s fall from grace the moment he alluded to this truth is just the most recent confirmation. The Jewish gatekeepers of the media keep this topic absolutely taboo. The discussion I mentioned earlier on Democracy Now! was telling. All three parties to the discussion about the lack of “diversity” among Kagan’s appointments certainly knew full well the preponderance Jews among those appointments, yet failed to mention it. Lawrance Lessig, who is not Jewish, certainly is aware of the massive over-representation of Jews among his colleagues at Harvard Law School. Glenn Greenwald, who is Jewish and a graduate of New York University Law School, must also have been aware. And Amy Goodman, as “alternative” as she is on so many issues, is one of the major Jewish media gatekeepers herself.

The Jewish predominance in the media is well documented. Jewish writers from Ben Stein to Joel Stein have published articles bragging about the extent of Jewish control over the media. Not only is ownership of the major media firms to a large extent in Jewish hands, there are enough Jewish editors, reporters, producers, and other media professionals that anyone who breaks the taboo of Jewish privilege can easily be weeded out and blacklisted. The corporate media’s Jewish gatekeepers have squashed all discussion of Jewish privilege. Moreover, except for a small number of internet sites, the same is true in the “alternative” media. Democracy Now! is an example.

As important as Democracy Now! is in pointing out many of the failings of the media and the political establishment in many issues, Amy Goodman walks in lock step with the rest of the media not just in keeping discussion of Jewish privilege taboo, but in actively promoting it. Her program is as stacked with Jewish guests as the rest of them. She has been very important in promoting the careers of Jewish writers, like Greenwald, who then go on to become the leading voices of the show’s progressive audience. While these Jewish guests may take very harsh stances on Zionist atrocities against Palestinians, they will not touch Zionist (let alone Jewish) power within the United States, except an occasional mention of its distortion of U.S. foreign policy. Indeed, the more someone has benefited from Jewish privilege, the more likely they are to keep the taboo. Otherwise they expose themselves as having advanced for reasons other than (or at least in addition to) qualification.

Academia has its own gatekeepers. They insure that important professions have significant Jewish over-representation and weed out people who are viewed as hostile to Jewish privilege. Kagan was an academic gatekeeper at Harvard. Her career advancement was always based as much, if not more, on Jewish privilege than on merit. Her appointments of Jews to at least half of the posts she filled while dean of Harvard Law School would seem to be her way of paying back those who paved the Easy Street of her career to date. (Larry Summers, who as President of Harvard appointed Kagan dean of the law school despite her lack of scholarly publications is particularly noteworthy.) The appointments also helped to preserve the effective Jewish veto over who gets into and who gets out of America’s most prestigious law school, a veto which certainly exists in other leading universities and in other academic departments. These privileges can continue without public outrage because of the Jewish gatekeepers of the media stifle discussion of it and anyone who tries to break the taboo does so at the risk of career loss.

Shortly after President Obama nominated Kagan to the Supreme Court, the New York Times published a biographical article about her entitled “A Climb Marked by Confidence and Canniness.” The article contains numerous quotes from Kagan’s supporters, but also mentions, albeit less prominently, her relative lack of accomplishments. What is notable is that most of the people mentioned in the article, whether they are her friends or her mentors, are Jewish. This leaves no doubt that Kagan was helped considerably along the way by fellow Jews (see also here). Her senior thesis advisor at Princeton was Sean Wilentz. She worked as a summer intern for Congressman Ted Weiss. She was later given a job as assistant press secretary for Congresswoman Elizabeth Holtzman. Her first clerk job was for Judge Abner Mikva. She was hired as a full-time tenure track professor by University of Chicago Law School Dean Geoff Stone at the age of 31. Four years later Stone gave her tenure. Shortly thereafter, Judge Mikva, who was at that time White House Counsel for Bill Clinton, brought Kagan into the Clinton administration. After Clinton left office, Kagan joined the faculty of Harvard Law School and in just two years was appointed Dean by Harvard President Lawrence Summers. Notice that all of these people who paved the way for her — Wilentz, Holtzman, Weiss, Mikva, Stone, and Summers — are Jewish.

One could say that what difference does it make, as long as she was qualified. Well, she did get good grades as a student, but how far should that get you? The article pointed out that there were some objections to her getting tenure at the University of Chicago because “surprisingly for someone so prominent in academia, Ms. Kagan published very little.” Her publishing track record had not improved much when she got her Harvard position. When Mikva brought her into the Clinton administration as Associate White House Counsel, she brought with her all of two years of experience practicing law. The article points out that when Obama appointed Kagan as United States solicitor general, she had argued no cases in the United States Supreme Court and had only recently become a member of its bar. And of course, until her appointment to the Supreme Court, she had never been a judge, and her opinions on the major issues of the day were a mystery.

So, Kagan’s demonstrated propensity for giving plum jobs to Jews as a dean at Harvard was matched by her having benefited considerably throughout her career from employment offered to her by Jews. And just as she often did not meet the standard prerequisites for the jobs she was offered, is it so unreasonable to think that the Jewish professors she hired were not receiving at least some preferential treatment? And if that is the case, did she extend the same preferential treatment to Jewish students? Was she more likely to assign readings written by Jewish authors? Likewise, is it unreasonable to suppose that her mentors, including Wilentz, Holtzman, Weiss, Mikva, Stone, and Summers, only showed preferential treatment to her, or did they also smooth the way for other promising young Jews, just as the Jewish media gatekeepers promote the careers of other Jews?

Should it be any wonder that an ethnic group with well-documented tendencies for avoiding intermarrying with others and for forming ethnic-based organizations would also promote the careers of other Jews? By making sure that there are a plethora of Jews in the most important professions, the Jewish gatekeepers of the media and of academia can keep the entire issue of Jewish privilege taboo by making sure that anyone who breaks the taboo will incur damage to their careers. And in a society where racial, ethnic, and religious discrimination otherwise is illegal, this Jewish exemption has resulted in higher and higher concentrations of Jews in positions of power in the United States and many other countries with each passing generation. Unless the taboo is broken and Jewish privilege and its implications are discussed, there will be no way to stem the tide.

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