Daily Israel Report

Aharon Barak's Activism Figures Heavily in Kagan Nomination

The nomination of Elena Kagan to the U.S. Supreme Court has elicited Jewish reactions on both ends of the spectrum.
By Hillel Fendel
First Publish: 6/29/2010, 4:24 PM / Last Update: 6/29/2010, 4:38 PM

Confirmation hearings for Elena Kagan’s nomination to the Supreme Court began Monday at the Senate Judiciary Committee. Currently the United States Solicitor General – the representative of the official US government’s position in cases heard by the Supreme Court – Kagan has been attacked for being both too conservative and too liberal.

A former Dean of the Harvard Law School, Kagan is the daughter of a former member family of Rabbi Shlomo Riskin’s Lincoln Square Synagogue, and now describes herself as a Conservative Jew.

Comments she made in 2006 in praise of Israeli Chief Justice Aharon Barak have now become controversial. At an award ceremony for Barak in Harvard, she referred to him as her “judicial hero" and said he was the judge who “best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice." 

Some see this as a reason to block her nomination, as Barak's judicial activism has earned him both strong praise and criticism in Israel and abroad. Robert Bork, a US Solicitor General whose nomination in 1987 to the Supreme Court was rejected and who is famous for his opposition to judicial activism, has come out against the nomination. He has called Barak "the least competent judge on the planet."

On the other hand, the Rabbinical Alliance of America – a group of 850 Orthodox rabbis – has called on the Senate Judiciary Committee not to confirm Kagan for a position on the Supreme Court for other reasons. “It is clear from Ms. Kagan's record," a statement by the organization said, "on issues such as abortion-on-demand, partial-birth-abortion, the radical homosexual and lesbian agenda, the 'supremacy' of the anti-family panoply over religious liberties of biblical adherents, et. al., that she will function as a flame-throwing radical, hastening society's already steep decline into Sodom and Gomorrah."

The Orthodox Union wrote a letter to Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.) expressing positive sentiments about Kagan, though it stopped short of a full endorsement..