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
raise a wide range of concerns, including the assertion that Kagan would
liberal, activist judge who wouldn’t give enough deference to the text
of the US
To buttress that claim, GOP senators repeatedly referred to
Kagan’s praise for former president of the Israeli Supreme Court, Aharon
Introducing him at a 2006 awards ceremony, she called Barak “my judicial
and said he was the judge “in my lifetime whom I think best represents
best advanced the values of democracy and human rights, of the rule of
of justice.” In his opening statement, Judiciary Committee Ranking
Sessions (R-Alabama) charged that Kagan had associated herself with
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
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
his writings, it’s a bit disturbing about his view of what a judge is
to do for society as a whole.” While Monday’s session only consisted of
statements, later in the week Kagan will have the opportunity to address
questions posed by the senators, which will presumably include queries
praise of Barak.
Kagan’s defendants have pointed out that Supreme Court
Justice Antonin Scalia, widely regarded as one of the court’s most
members, also praised Barak at an awards ceremony, and that Kagan
praised Scalia in a similar setting.
And Barak critic Nathan Diament of
the Orthodox Union’s Washington office, noted the context in which she
“It is certainly true that Chief Justice Barak was a proud and
aggressive judicial activist who led the Israeli Supreme Court into
decisions many questioned – and we were among the many doing so,” he
“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
he wrote. “Isn’t that typical social convention?” He added, “Israel gets
into enough disputes around the world these days, and its Supreme Court
continues to spark debates too. Can’t… Kagan’s opponents find something
and less bizarre – to attack her with?” Seth Stern, a Washingtonbased
analyst, said that Barak’s role in the confirmation hearings is not due
“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
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
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
the court will for the first time be composed entirely of Catholics and
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
Catholics questioned for their ability to act independently of the
“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
On Monday, references to Kagan’s background – aside from
Graham’s comment that she “grew up in a liberal household” – focused on
“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
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,
representation from Midwestern and Western states,” he said in one of
statements Monday that caused Kagan to smile.
“It’s important that all
Americans feel the court represents their life experiences and values,”
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