Law

Bork says Kagan lacks 'mature' view of law for U.S. High Court

Former federal judge Robert Bork, whose failed 1987 nomination to the U.S. Supreme Court ignited a partisan battle, said Elena Kagan isn’t qualified for the high court because she has activist leanings and lacks a "mature" view of the law.

"Ms. Kagan has not had time to develop a mature philosophy of judging," Bork said in a conference call today sponsored by Americans United for Life, an anti-abortion group opposing her confirmation. Kagan has the "inflated dreams" of a young lawyer who believes the Constitution should be used to advance individual rights, he said.

Bork, 83, singled out Kagan's description of Aharon Barak, the former president of Israel's Supreme Court, as her "judicial hero." That is reason enough to reject her nomination because Barak is an activist who "may be the worst judge on the planet," Bork said.

Both sides in the debate over Kagan's nomination are turning up the rhetoric as the Senate Judiciary Committee prepares to hold confirmation hearings beginning June 28. A vote by the full Senate probably will take place in July.

Kagan, 50, was nominated by President Barack Obama on May 10 to replace retiring Justice John Paul Stevens on the nine- member high court. A former dean of Harvard Law School who worked for four years in President Bill Clinton’s White House, Kagan is the U.S.'s first woman solicitor general, serving as the Obama administration’s top courtroom lawyer.

Favored for Confirmation

Democrats control 59 of the Senate's 100 seats, and, barring an unlikely Republican filibuster, Kagan is favored to win confirmation. Republicans and conservative groups plan to use the hearings to question her lack of judicial experience and portray her as a Democratic activist.

Today, the White House countered by releasing a letter from 29 Supreme Court clerks who were at the court at the same time Kagan was a clerk for Justice Thurgood Marshall in 1987-88. They said she was open-minded and demonstrated a suitable judicial temperament.

"Each of us came to recognize during our clerkship year that apart from her surpassing legal ability, Elena is remarkably fair-minded and intellectually honest," the clerks wrote.

Bork is a proponent of "originalism," a theory that says judges should base their rulings on the intent of the framers of the Constitution. He described Kagan as a product of academia who would impose her own views.

"The danger of Ms. Kagan is that she hasn't had any experience that would lead her to mellow," he said. "The academic world is not a place in which you learn prudence and caution and other virtues of a judge."

Bork was solicitor general from 1973 to 1977 and a federal appeals court judge in Washington from 1982 to 1988. Nominated to the high court by President Ronald Reagan to succeed Lewis Powell, he was defeated in the Senate after Democrats and liberal groups accused him of threatening the rights and privacy of Americans.

(Published by Bloomberg – June 23, 2010)

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