Elena Kagan explains remarks about Aharon Barak
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U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel.
She offered a similar explanation, if less passionate, for her penchant for Chinese food on Christmas.
Kagan, the U.S. solicitor general tapped by President Obama for the high court, has come under fire from conservatives for a speech she gave welcoming Aharon Barak when she was dean of the Harvard Law School. Barak was her “hero,” she said.
Conservatives say they reject the model of judicial activism set by Barak, who has upheld a judicial role in shaping Israeli laws.
A number of Republican senators said they would bring up her admiration for Aharon Barak during her confirmation hearings, and Sen. Chuck Grassley (R-Iowa) was the first to follow through on Tuesday.
“I am troubled by the fact that you hold up Barak as a judicial role model,” Grassley said. “He’s been described as creating a degree of judicial power undreamed of by most U.S. justices.”
Grassley quoted Barak saying “a judge has a role” in the lawmaking process and asked Kagan if she agreed.
Kagan said she did not, but also noted that Barak operated in a fundamentally different system — one without a written constitution.
“Justice Barak’s philosophy is so different from anything that we would use or would want to use in the United States,” she said.
Instead, she said, she admired Barak for creating an independent judiciary in a young state surrounded by enemies.
“He is very often called the John Marshall of the State of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel — a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution — he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.
She also admired Barak for personal reasons.
“As you know, I don’t think it’s a secret I am Jewish,” she said. “The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he’s done for the State of Israel and ensuring an independent judiciary.”
Sen. Patrick Leahy (D-Vt.), the committee chairman, exercised the rarely used prerogative of rebutting Grassley, quoting conservative judges who have praised Barak.
Kagan’s Jewishness also took center stage later in the day. Graham, probing Kagan on threats to the United States, asked her if she was unnerved by the Christmas Day bomber.
“Where were you on Christmas Day?” Graham asked.
“Like all Jews,” Kagan responded, “I was probably at a Chinese restaurant.”
“I could almost see this one coming,” Leahy quipped.
Then Sen. Chuck Schumer (D-N.Y.) jumped in: “Those are the only restaurants that are open!”
Bork blasts Kagan praise of Israeli judge
Robert Bork criticized U.S. Supreme Court nominee Elana Kagan because of her praise of former Israeli Supreme Court chief justice Aharon Barak.
Bork, a conservative whose 1987 nomination to the U.S. Supreme Court was knocked down by the Senate, was among a number of scholars presented by the anti-abortion group Americans United for Life in a conference call aimed at rallying opposition to Kagan in the U.S. Congress.
Bork said Kagan’s past praise of Aharon Barak was enough to disqualify her, calling Barak “the worst judge on the planet,” according to a story in Politico last week.
The Orthodox Union’s Institute for Public Affairs blog called the attack “bizarre.”
“Kagan praised Barak in the course of introducing him to an audience at the Harvard Law School — when she was Dean,” the blog post said. “Isn’t that typical social convention? Even current U.S. Supreme Court Justice Scalia,” like Bork, an originalist, “did the same for Justice Barak.”
The OU post noted its own criticism of Barak for introducing a broad notion of judicial powers into a system that lacks a constitution.
“It is certainly true that Chief Justice Barak was a proud and aggressive judicial activist who led the Israeli Supreme Court into making decisions many questioned — and we were among the many doing so,” the post said.
In Israel, Barak has been subject to criticism from the left and the right, both for his expansive notion of judicial powers in upholding democratic values, and for deferring to national security considerations in a number of cases involving Palestinians.
Separately, a small umbrella group for haredi Orthodox rabbis issued a statement opposing Kagan’s nomination.
“Ms. Kagan is non-kosher,” said the statement from the Rabbinical Alliance of America, a reference to the fact that Kagan is Jewish.
The statement cited Kagan’s ostensible support for abortion laws. Reports of her views on abortion are based mostly on internal White House memos during her stint as a domestic policy adviser to President Clinton. She helped shaped language that took a mother’s health — and not just her life — into account in permitting late-term abortions. It is not clear from the memos whether Kagan supported late-term abortions or whether she was helping her boss make a law more politically viable.
“It should be clear that Ms. Kagan’s long line of forebearers, presumably tracing back to Sinai, would have sacrificed their lives rather than embrace the anti-G-d, counter-sanctity agenda that she has lived and promoted,” said the Rabbinical Alliance statement. “We are puzzled as to why President Obama would not honor a different minority with this nomination.”
OU, Reform movement weigh in on Kagan
Two major Jewish religious groups weighed in on Elana Kagan’s nomination to the Supreme Court.
The Orthodox Union, while noting that it does not endorse nominees, said in a letter to the U.S. Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) that it found Kagan’s record “encouraging.”
It noted her repudiation in confirmation hearings of her 1987 memo, when she clerked for the late Supreme Court Justice Thurgood Marshall, rejecting any government funding for faith-based charities providing social services.
The OU also noted memos she wrote, as a domestic adviser to President Clinton, backing religious freedoms in the workplace.
“Ms. Kagan has demonstrated a reassuring appreciation for the rights guaranteed by the Free-Exercise clause and a growing respect for a balanced approach to the Establishment Clause which allows for appropriate government support for the work of religious organizations,” the letter said.
The Reform movement, meantime, forwarded to the members of the Judiciary Committee what it considered to be the most compelling questions it solicited from its membership on a website, AskElanaKagan.com.
“What limits does the Establishment Clause place on government funding that flows to faith-based organizations?” was one question.
“Do states have a right to define marriage as solely between a man and a woman? What should be the Federal role concerning marriage?” was another.