As the commentariat today grapples with President Barack Obama’s nomination of Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens, questions about Kagan’s tenure at Harvard Law are bubbling to surface as a point of contention for both Republicans and Democrats.

Kagan, whose leadership at Harvard Law marked an unprecedented expansion of the program’s faculty, hired 32 tenured and tenure-track faculty. With one exception, all were white; only seven were women.

“Because Kagan does not have a record and because her tenure at Dean is offered as one of her qualifications for the Supreme Court, it is more than fair to ask where racial inclusion figures in her judicial philosophy,” wrote Guy-Uriel Charles, the founding director of the Duke Law Center on Law, Race and Politics. “Kagan’s hiring at Harvard is one of the few data points that we have on how she might think about racial inclusion.”

To be sure, conservatives, who as a matter of principle oppose racial quotas for the purposes of hiring or admitting, will be wary of legitimizing such an attack. But with a limited body of published work to her credit–which is to say, nothing at all–the metrics by which the Senate may judge Kagan’s judicial temperament are limited.

After years of decrying racial politics but having now surrendered to the reality that Democrats will forever claim moral ascendancy over their conservative colleagues, such an offensive would largely fail: After all, who wants to waste their time when they know it would be better spent elsewhere? And so Kagan will get a free pass — from the press, from Congressional Democrats and from the special interest groups who purportedly aim to increase racial, ethnic and gender diversity.

But imagine the political melee had a white Republican president nominated a white Supreme Court justice whose record on hiring showed only 3 percent of all hires were non-whites.

“Demanding accountability about diversity isn’t a one-way street meant only for Republicans,” CNN political contributor and Democratic strategist Roland Martin wrote in an editorial for the network’s website. “Democrats should never get a pass either.”

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