New video of Supreme Court nominee Elena Kagan praising an activist Israeli Supreme court judge as “my judicial hero” has Republican senators and conservative groups doubting administration claims that the former Clinton aide has an open mind and isn’t interested in changing the Constitution. [Read 10 Things You Didn't Know about Kagan.]
Coming on the eve of Senate Judiciary Committee confirmation hearings, the video provided to Whispers by Americans United for Life shows Kagan in 2006 praising retired Judge Aharon Barak during a ceremony at Harvard when she was dean of the Harvard Law School. At the event, he was presented the Peter Gruber Foundation 2006 Justice Prize. According to the group, the $500,000 award “acknowledges individual efforts and encourages further advancements toward bringing about a fundamentally just world.” [See a slide show of the members of the Supreme Court.]
In a call with reporters today, failed Reagan court pick Robert Bork called Barak dangerous to those who are worried about activist judges. “Barak may be the worst judge on the planet,” said Bork. Barak’s court, added Bork, was “the most activist court I have ever seen.”
Republican Senate aides say Kagan’s praise for the self-described activist judge will be one of two key issues the GOP will press Kagan on. The top Republican on the Judiciary Committee, Sen. Jeff Sessions, has told conservatives that he will focus on Kagan’s support for Barak and her efforts to bar military recruiters from Harvard Law. [See who contributes to Sessions's campaigns.]
Constitutionalists shudder at Barak’s view of the law. According to Americans United, in his 2006 book The Judge in a Democracy, Barak wrote that “a good judge is a judge who, within the bounds of legitimate possibilities, makes law that, more than other law he is authorized to make, best bridges the gap between law and society and best protects the constitution and its values. He also says that judges should go “beyond actually deciding the dispute.”
The issue of Kagan’s praise for Barak received some push back from Democrats who noted that three of Bork’s former law clerks have endorsed Kagan. They are also providing praise for Barak from the court’s most conservative member, Antonin Scalia. At a 2007 event for Barak, Scalia said he had disagreements with Barak but also had a “profound respect for the man, one that trumped their fundamental philosophical, legal, and constitutional disagreements,” according to the Jewish Daily Forward.
Americans United for Life is pushing the Barak issue hard. Besides compiling the video, they have also sent memos to supporters about Barak’s positions and plan to ask senators to press Kagan on her view of his judicial philosophy.