Bork, former clerks weigh in as critics and backers make final arguments on Kagan

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Critics, supporters step up their efforts on Kagan

WASHINGTON — Conservative critics of Elena Kagan recruited failed former Supreme Court nominee Robert Bork to brand her unfit to serve on the high court Wednesday, as former colleagues from both ends of the ideological spectrum praised her qualifications to be a justice.

Opponents and backers of President Barack Obama’s choice to replace retiring Justice John Paul Stevens stepped up their efforts with Senate Judiciary Committee hearings on Kagan’s less than a week away. Republicans are increasingly under pressure from conservative activists to oppose Kagan or block a vote to confirm her, while the White House is working with Democrats to dispel doubts that could mar her so-far smooth path to a lifetime spot on the nation’s highest court.

Bork said Kagan’s admiration for the liberal former president of Israel’s Supreme Court, Aharon Barak, disqualifies her to be a justice.

Barak “may be the worst judge on the planet — the most activist,” said Bork, the conservative former judge whose 1987 nomination to the Supreme Court by Ronald Reagan was rejected by the Senate after a partisan battle.

“If people understood that an American Supreme Court nominee was going to follow the example of Barak, there would be grave misgivings and probably a refusal to confirm,” Bork said.

Barak is acknowledged by critics and admirers as an influential jurist who took an activist approach to judging. He once declared a series of human rights laws enacted by Israel’s legislature to be the country’s constitution, and said it was up to the court to review future measures to ensure they complied.

He drew praise from Kagan in 2006, who at an award ceremony honoring him called Barak “my judicial hero,” and said he was the judge “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.”

Justice Antonin Scalia, the court’s conservative icon, also spoke glowingly of Barak during a 2007 award ceremony at the Supreme Court, although he acknowledged deep legal and philosophical differences with him.

Bork spoke during a conference call organized by the anti-abortion rights group Americans United for Life, which has been outspoken in its opposition to Kagan.

Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary panel, dismissed Bork’s criticism as a distraction.

“We see a lot of people putting up red herrings and grasping at straws” to try to defeat Kagan, Leahy said, predicting that Kagan would be confirmed.

“Here’s a woman who understands the Constitution, understands the law, understands the effects of the decisions on ordinary, hard-working Americans,” Leahy said at a news conference.

He and fellow Democrats portrayed Kagan as a counterweight to what they called an activist conservative majority currently dominating the court.

Republicans continued to raise concerns about her ability to be an impartial justice.

“The more we learn about Ms. Kagan’s work as a political adviser and political operative, the more questions arise about her ability to make the necessary transition from politics to neutral arbiter,” said Sen. Mitch McConnell of Kentucky, the Republican leader.

Anti-abortion activist Randall Terry announced plans to protest Thursday morning outside the offices of McConnell and his No. 2 Republican Sen. Jon Kyl of Arizona “to draw attention to the cowardice and treachery of Senate Republicans” regarding Kagan’s nomination.

According to a news release, protesters plan to confront Senate aides with the question, “Why does your boss pretend to be pro-life, but he has not committed to filibuster Kagan?”

The White House, working to blunt criticism of Obama’s nominee by highlighting broad support for her, arranged for former colleagues to praise her in a conference call with reporters.

A group of former law clerks who worked with Kagan at the Supreme Court some 20 years ago called her exceptionally well-qualified to be a justice. Twenty-nine people who were fellow clerks from 1987 to 1988, when Kagan worked for former Justice Thurgood Marshall, wrote to the Senate Judiciary Committee to endorse her. They span the ideological spectrum, including former clerks to Scalia and to one of its most liberal stalwarts, former Justice William Brennan.

Vice presidential chief of staff Ron Klain was one of the signers, as were conservative lawyers Miguel Estrada and Peter Keisler, two of former President George W. Bush’s failed judicial nominees.

Keisler joined two other clerks on the call.

“She’s an independent and open-minded person, someone of great accomplishment in the law who’d approach issues fairly and with integrity,” Keisler said. “When you approached Elena about a case and were talking to her about it, that conversation was free of ideological baggage.”

Still, outside groups from the right and left were venting doubts about Kagan. The National Right to Life Committee, an anti-abortion rights group, on Wednesday wrote to senators urging them to vote against Kagan, saying that she was “first and foremost a social engineer, animated primarily by a desire to shape public policy.”

The group cited Kagan’s advice to former President Bill Clinton’s to oppose a ban on a procedure critics call partial-birth abortion unless it contained a health exception for the mother. The position, the letter said, helped keep the “brutal” practice legal for an additional decade.

And Americans United for Separation of Church and State wrote the Judiciary panel urging senators to question Kagan closely about her “church-state philosophy.” The group suggested that documents from Kagan’s past raise concerns that she might favor religious liberty claims over civil rights protections, or condone the use of taxpayer dollars to fund religion.