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Germs of opposition

Supreme Court | Robert Bork says conservatives haven't put up enough of a fight against Elena Kagan

WASHINGTON-Supreme Court nominee Elena Kagan is all but sure to win confirmation this summer, even though Republicans have hinted they might force a filibuster. Despite that, few conservatives have disturbed the relative political calm leading up to her confirmation hearings, which begin Monday.

But one prominent judge has come out openly in his criticism of Kagan-and of Republicans.

"It's typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do. That usually wears off with experience," said Judge Robert Bork, a one-time Supreme Court nominee selected by President Reagan but voted down by the Senate. "Ms. Kagan has not had time to develop a mature philosophy of judging."

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Then he added, "I shouldn't have said that except for the fact that it's true."

Bork also criticized Senate Republicans for their passive response to her nomination: "The Republican attitude is, 'It could have been worse.' Which is not the proper attitude."

Since she has no background as a judge, conservative groups have scrounged for indications of Kagan's positions in her political paper trail as an adviser at the White House. Military groups have criticized her blocking military recruiters at Harvard Law School, where she recently served as dean. Pro-life groups have highlighted her support of legalized abortion. But conservatives' main criticisms of Kagan are that she has spent most of her life in academia and as a political operative in the Clinton White House.

While Bork is discouraged by the "vitriol" surrounding present-day Supreme Court nominations, he thinks Kagan deserves tough questioning about what sources she would draw from in order to make decisions as a judge. He also considers her recent praise for former Israeli Supreme Court Judge Aharon Barak "disqualifying in and of itself."

"Barak may be the worst judge on the planet," Bork said. "He has the most extravagantly activist record that I know of."

Kagan described Barak in 2006 as "the judge or justice 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."

Sen. Orrin Hatch, R-Utah, echoed Bork's concerns on the floor of the Senate: "Will the Constitution control her or will she try to control the Constitution? Will she care more about the judicial process or the political results?"

Kagan's supporters counter that conservative Supreme Court Justice Antonin Scalia has himself said that he has "profound respect" for Barak.

The White House has cleverly orchestrated the lead-up to Kagan's hearings, holding conference calls for reporters with people from all political quarters ready to sing Kagan's praises. Kenneth Starr, solicitor general under President George H.W. Bush and the investigator into President Bill Clinton's troubles, signed a letter endorsing Kagan along with Ted Olson, who served as solicitor general under President George W. Bush. Judge Michael McConnell, who Bush considered nominating to the Supreme Court, has also praised Kagan.

Bork said he hadn't asked them about their reasons for endorsing her, but said he himself initially wanted to support Kagan because he admired the conservative professors she had hired as dean at Harvard Law. But now he believes "it was her way of running for office."

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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