U.S. Supreme Court Nominee Elena Kagan: Israel Means a Lot to Me

Kagan rejects criticism that she seeks to emulate Aharon Barak's judicial activism, but says she admires what he did for Israel.

Natasha Mozgovaya
Natasha Mozgovaya
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Natasha Mozgovaya
Natasha Mozgovaya

U.S. Supreme Court nominee Elena Kagan on Tuesday rejected Republican charges she would be a liberal judicial activist, brushing off complaints she was more interested in politics than legal precedent and promising her rulings would be based solely on the law.

Criticism of the judicial method of Israel's former Supreme Court president, Aharon Barak, featured high on the second day of Kagan's confirmation hearing at the Senate Judiciary Committee.

Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, Tuesday, June 29, 2010, during her confirmation hearing before the Senate Judiciary Committee on June 29, 2010Credit: AP

When asked whether she would follow the method adopted by Barak when deciding cases, Kagan responded with a resounding: "I will not", but added that she admired what he had done for the Israeli judicial system.

"I do admire Justice Barak," Kagan clarified. "He is very often called the John Marshall of the state of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel – a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution –with all those kinds of liabilities would become a very strong rule of law nation.

"And that's why I admire Justice Barak. Not for his particular judicial philosophy, not for any of his particular decisions."

"As you know, I don't think it's a secret I am Jewish," she added. "The state of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he's done for the state of Israel and ensuring an independent judiciary."

If appointed, Kagan would be the third Jewish justice on the nine-member Supreme Court panel.

"My politics would be, must be, have to be completely separate from my judging," Kagan told Republican critics at the hearing. "The question is always what the law says."

Senator Jeff Sessions, the panel's senior Republican, pressed Kagan on whether she would follow Obama's political agenda and whether she was a "liberal progressive."

"I honestly don't know what that means," Kagan said. "This isn't a job, I think, where somebody should come in with a particular substantive agenda and try to shape what they do to meet that agenda."

Kagan, 50, has sparked little controversy compared to other Supreme Court nominees and appears headed to relatively easy confirmation. Her nomination has been overshadowed by recent events, including the Gulf of Mexico oil spill and the removal of Afghanistan war commander U.S. General Stanley McChrystal.

Both parties jockeyed for political advantage during the hearing as November's congressional elections approach.

Democrats have criticized what they say is the court's shift to conservative activism under Chief Justice John Roberts.

Kagan, who is Barack Obama's solicitor general and a former aide in the Clinton administration, refused to take the bait when Republican Jon Kyl asked if she agreed with complaints the court had favored corporations in recent rulings.

"I would not want to characterize the current court in any way -- I hope one day to join it," Kagan said.

"And they said you weren't political," Kyl responded to laughter from Kagan and the crowd.

Kagan, a former dean of the Harvard law school, defended her decisions limiting access to military recruiters under university anti-discrimination rules because of the military's "don't ask, don't tell" policy on gays, which she called unjust.

While dean of the school, Kagan reinstated Harvard's policy preventing military recruiters from using its career office, but allowed them access through student groups.

"I'm confident the military had access to our students, and our students had access to the military throughout my entire deanship," she said, adding she respected and "revered" the military.

"But I also felt a need to defend our school's very longstanding anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy: the gay and lesbian students who wanted to serve in the military," she said.

Sessions said Kagan's decision made the military second-class citizens on campus. "The actions you took created a climate that was not healthy toward the military," he said.

Talking to reporters afterward, he said he was "less comfortable" with Kagan after the exchange.

If Kagan wins Senate confirmation to succeed retiring Justice John Paul Stevens, she will be the first new member of the high court in four decades who has never been a judge. She also would be the current court's youngest member and its third woman.

Kagan was asked several times about a book review she wrote that criticized high court confirmation hearings as a charade because nominees rarely divulged their real views on key cases.

She has adjusted her view now that she is on the other side, she said.
"I skewed it too much," she said of her criticism. "It wouldn't be appropriate for me to talk about what I think about past cases -- you know, to grade cases -- because those cases themselves might again come before the court."

Each of the Judiciary Committee's 19 senators have 30 minutes during the first round of questioning, which is expected to last all day on Tuesday and into Wednesday.

Under questioning from Democratic chairman Patrick Leahy, she said the court's decision on Monday extending gun rights to every city and state was "settled law."

On abortion, she said the court had repeatedly held that a woman's life and health "must be protected."

Kagan also said she supported televising court hearings, and promised to recuse herself from any case where she was the counsel of record as solicitor general. She said there were about 10 cases in that category on next year's court docket.



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