Bork Says Kagan Lacks Judicial Maturity for High Court

Posted June 23, 2010 at 11:53am

Robert Bork, the conservative ex-judge whose bitter and partisan Supreme Court confirmation fight in 1987 set the tone for subsequent judicial battles, said Wednesday that Elena Kagan should not be confirmed to the high court, saying she lacked a mature judicial philosophy and citing her praise of a liberal former Israeli Supreme Court judge.

Bork said Kagan’s embrace of Aharon Barak, whom she called “my judicial hero” during a Harvard Law School ceremony in 2006 when she was dean of the school, should disqualify her from being confirmed by the Senate.

“Barak may be the worst judge on the planet,” said Bork, speaking on a conference call organized by Americans United for Life, an anti-abortion group that is opposing Kagan. The Senate Judiciary Committee is scheduled to hold hearings on Kagan’s nomination to the high court next week.

Bork said Barak, who was president of the Israeli Supreme Court from 1995 to 2006, was a liberal activist judge who interfered in military and security decisions, and forced changes to the fence that the government had erected in the West Bank.

“He has the most extraordinary activist record that I know of,” Bork said.

Bork’s nomination to the Supreme Court by President Ronald Reagan was rejected by the Senate after a contentious fight. But he remains a hero to conservatives.

Bork criticized Kagan for lacking a mature judicial philosophy, saying she has spent much of her career in academia.

“Miss Kagan has not had the time to develop a mature philosophy of judging,” he said.

Bork also dismissed Kagan’s most recent experience as solicitor general, a position that he held during the Nixon administration, suggesting she had not handled defining issues there.

The retired judge said he had considered supporting Kagan because of her record at Harvard of hiring conservative professors but decided to oppose her because of her support of Barak.

Bork suggested that President Barack Obama nominated her in part because he wanted to be the first president to be responsible for having three women on the high court.

Even though defeating her nomination is an uphill battle, Bork said Republicans should oppose her to gain “credibility or integrity for future battles,” rather than “rolling over every time a woman or liberal is nominated.”

Kagan, however, has been more supportive of Bork, writing in a 1995 law review article that his confirmation hearings should be a model for others.

“Not since Bork,” she said in the article, “has any nominee candidly discussed or felt a need to discuss, his or her views and philosophy.”