Judge Bork warns against Elena Kagan's activist comments

Judge Bork warns against Elena Kagan's activist comments

Supreme Court nominee Elena Kagan and Judge Robert Bork.
Supreme Court nominee Elena Kagan and Judge Robert Bork.


Judge Robert Bork spoke out today to oppose the Supreme Court nomination of Elena Kagan. Bork, the former Supreme Court nominee and Circuit Judge of the U.S. Court of Appeals, spoke about Kagan's appointment in a conference call today sponsored by pro-life group Americans United for Life (AUL).

Joined by two experts in constitutional law, Bork warned that Kagan's outspoken admiration of activist judges, along with her lack of judicial experience, should raise great concern from the American people.

William Saunders, Senior Vice President of Legal Affairs and Senior Counsel for AUL, dismissed the image of Kagan as a moderate nominee with little track record. Although she is not a judge with hundreds of legal opinions, her articles, speeches and actions give important clues about the type of justice she would be, he said.

Saunders argued that  Kagan's track record reveals her to be an activist who endorses an agenda-driven judicial philosophy, as well as a strong abortion advocate.  He pointed to documents from Clinton's presidency that show Kagan opposed placing limits on partial birth abortion. The evidence, the AUL attorney argued, indicates that Kagan believes a woman should be able to have an abortion at any time for any reason, and that the government should pay for abortions. 

Saunders also noted that Kagan clerked for Justice Thurgood Marshall and called his jurisprudence “a thing of glory.” Marshall was one of the most extreme justices on the court in regard to abortion, opposing parental involvement and supporting tax-funding, he explained, saying that Kagan should be asked if she considers those decisions by Marshall to be “a thing of glory.”

Professor Gerard Bradley of the Notre Dame School of Law told reporters that while Kagan has shown herself to be both dedicated and capable, her credentials as a nominee for a lifetime appointment to the nation's highest court are lacking, especially when compared with the credentials of  recent nominees.

“Her credentials are especially notably lacking in prior judicial experience and also in the lack of a substantial scholarly record,” Bradley said, noting that Kagan has not worked in the more strictly legal and analytical areas of administration.

Speaking on the nomination and answering questions from the press, Judge Bork explained that the American people should be very concerned about Kagan's admiration for Israeli Supreme Court Justice Aharon Barak, who is described by his friends as one of the world's leading judicial activists.

As Dean of Harvard Law School, Kagan praised Barak, calling him her “judicial hero” and saying that of all the judges associated with Harvard Law, his is the association of which she is most proud.

When Barak's record is considered, these comments are extremely troubling, said Bork. “Barak may be the worst judge on the planet.”

He described Barak's “extravagantly activist record,” which includes taking over both military decisions and the office of the Attorney General in Israel. He spoke of Barak's claim that the Court had the authority to decide any issue, removing limitations on the judicial branch and giving it power to reorder Israeli life as it sees fit.

While claiming to be acting in name of democracy, Barak has in fact created a “parody of a court,” Judge Bork said. He described the Israeli court under Barak as “the most activist court I've ever seen” and warned that Kagan will likely follow the Barak's example.

In addition, Bork expressed other concerns about Kagan, including her lack of judicial experience.

“It is typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, of what courts can do. 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.”

“The academic world is not a place in which you learn prudence and caution and other virtues of a judge,” he added.

Asked what kinds of questions should be posed to Kagan in her upcoming Senate hearing, Bork said, “I think she should be called upon to describe the kind of materials she would look to to find an answer to a legal question.”

Whether or not she looks to conventional sources will be crucial in evaluating what she will be like as a judge on issues such as abortion, he explained. Bork said he does not believe that a constitutional “right” to abortion exists, but if Kagan does, she should be asked for the basis of this belief.

Speaking on the correlation between abortion and other constitutional issues, Bork said that a potential judge's support for abortion reveals a dangerous “willingness to write in values that are not in the Constitution.”

“Abortion as a constitutional value requires a judge who is willing to legislate without regard to anything in the Constitution,” he said.

Such a judge is more likely to decide other cases in the same spirit, he explained. “For example, a judge who thinks there's a constitutional right to abortion almost certainly will decide that there's a constitutional right to same-sex marriage.”

If Kagan's nomination is approved, Americans can expect “a judge who does not give any special weight to the original meaning of the Constitution or to precedent,” Bork said, emphasizing the danger of allowing such a mindset to take over the court.

 “You'll have a court that is much more to the left than we have today.”