Civil Rights groups question Kagan's record

Civil rights organizations are questioning Supreme Court nominee Elena Kagan's record on race even though she was nominated by President Barack Obama, along with being former Supreme Court Associate Justice Thurgood Marshall's favorite clerk.

On the eve of Elena Kagan's Senate confirmation hearings, her 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 has otherwise 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.[...]

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, say they are still trying to glean her beliefs from fragmentary evidence. Others have parsed Kagan's public statements and actions and said they are uneasy.

"This is a complicated nomination," said Barbara R. Arnwine, executive director of the Lawyers' Committee for Civil Rights Under Law, which decided last week not to take a position yet 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."[...]

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. The latter issued a detailed report on her record, concluding that she possesses "an impeccable legal biography." Still, the 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."

Other liberal organizations are in an awkward spot, wary of Kagan but reluctant to criticize the White House explicitly. "We really did struggle with this," Thompson said of the National Bar Association's decision to give Kagan the mid-level rating of "qualified" rather than an outright endorsement. "Of course, we want to support President Obama. But . . . I have to make sure I am true to the mission of the National Bar," whose 44,000 members are predominantly African American.