Failed U.S. Supreme Court nominee and former judge Robert Bork said today that Elena Kagan's admiration of an Israeli judge is "disqualifying in and of itself" for Kagan's own nomination to the Court.
In remarks at Harvard Law School in 2006, Kagan praised Aharon Barak, who was then the chief of the Supreme Court of Israel. Kagan told Barak that he is her “judicial hero” and the judge who, in her lifetime, “best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”
Bork, on a conference call with reporters, sharply criticized Barak’s approach to judging.
“He has the most extravagantly activist record that I know of,” said Bork, who has served as solicitor general and as a judge on the U.S. Court of Appeals for the D.C. Circuit. “His prescription makes the Warren Court look like a restrained court.”
The criticism echoes similar statements about Barak from other conservatives, including Sen. Jeff Sessions (R-Ala.), who is the top Republican on the Senate Judiciary Committee, and Ed Whelan, a former Justice Department lawyer who writes for National Review Online. Judge Richard Posner of the 7th Circuit has written unfavorably about Barak’s expansion of judicial powers in Israel.
Bork said that Kagan’s high regard for Barak “is disqualifying in and of itself” and reflects her lack of experience as a judge or litigator.
“It’s typical of young lawyers going into constitutional law to develop inflated dreams of what constitutional law can do, what courts can do,” he said. “That usually wears off as time passes and they get experience, but Ms. Kagan has not had the time to develop a mature philosophy of judging.”
Kagan’s confirmation hearing, where she will have a chance to rebut the criticism from Bork and others, begins June 28.
UPDATE (1:07 p.m.): The Washington Post notes that Justice Antonin Scalia has had some kind words for Barak.