Kagan attacked for idolizing judge Barak

US Supreme Court nominee's confirmation hearings open in DC.

By HILARY LEILA KRIEGER
Elena Kagan 311 (photo credit: Associated Press)
Elena Kagan 311
(photo credit: Associated Press)
WASHINGTON – Republican senators used US Supreme Court nominee Elena Kagan’s regard for a former Israeli justice as a major line of attack in confirmation hearings that opened Monday.
If Kagan is confirmed, the Supreme Court would for the first time have three justices who are Jewish and three who are female. The hearings over her nomination are due to last throughout the week with a vote expected later in July.
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While most observers predict that Kagan will be confirmed, Republican opponents used their opening statements to raise a wide range of concerns, including the assertion that Kagan would be a liberal, activist judge who wouldn’t give enough deference to the text of the US Constitution.
To buttress that claim, GOP senators repeatedly referred to Kagan’s praise for former president of the Israeli Supreme Court, Aharon Barak. Introducing him at a 2006 awards ceremony, she called Barak “my judicial hero” and said he was the judge “in my lifetime whom I think best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.” In his opening statement, Judiciary Committee Ranking Member Jeff Sessions (R-Alabama) charged that Kagan had associated herself with activist judges throughout her career.
“She has called Israeli judge Aharon Barak, who has been described as the most activist judge in the world, as her hero,” he said.
Later, Lindsey Graham (RSouth Carolina) called her judicial hero “an interesting guy.” He continued, “You’re going to have to do a lot of explaining to me why you picked Judge Barak as your hero, because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole.” While Monday’s session only consisted of opening statements, later in the week Kagan will have the opportunity to address questions posed by the senators, which will presumably include queries about her praise of Barak.
Kagan’s defendants have pointed out that Supreme Court Justice Antonin Scalia, widely regarded as one of the court’s most conservative members, also praised Barak at an awards ceremony, and that Kagan herself praised Scalia in a similar setting.
And Barak critic Nathan Diament of the Orthodox Union’s Washington office, noted the context in which she had spoken.
“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,” he posted on his blog.
“But it is also true that Kagan praised Barak in the course of introducing him to an audience at the Harvard Law School – when she was dean,” he wrote. “Isn’t that typical social convention?” He added, “Israel gets pulled into enough disputes around the world these days, and its Supreme Court continues to spark debates too. Can’t… Kagan’s opponents find something else – and less bizarre – to attack her with?” Seth Stern, a Washingtonbased legal analyst, said that Barak’s role in the confirmation hearings is not due to his nationality.
“I don’t think it’s because he’s Israeli, but because he’s viewed as an activist judge,” he said, adding that though “Republicans will raise it, I don’t think it will sink her.”
He also anticipated that her Jewish faith wouldn’t be an issue in the hearings, just as it has attracted little notice since her selection was announced.
“It’s striking the degree to which is hasn’t been an issue,” Stern said, noting that, if confirmed, the court will for the first time be composed entirely of Catholics and Jews, without a single Protestant justice.
Stern pointed out that religion was at one time a key issue, with Jews limited to a single seat until the 1960s and Catholics questioned for their ability to act independently of the Vatican.
“It used to be an issue. It’s not as relevant as it once was,” said Stern, whose forthcoming book, “Justice Brennan: Liberal Champion,” chronicles the life of the court’s only Catholic justice from 1956-1986.
On Monday, references to Kagan’s background – aside from Graham’s comment that she “grew up in a liberal household” – focused on her gender.
“Today for the first time, we begin a hearing on a nomination that could result in three women sitting on the Supreme Court at one time. We’ve come a long way,” said Russ Feingold (D-Wisconsin).
“I also hope that we’ll continue to see greater diversity on the court in other ways, including representation from Midwestern and Western states,” he said in one of the few statements Monday that caused Kagan to smile.
“It’s important that all Americans feel the court represents their life experiences and values,” he maintained.