Both sides of the fence step up their efforts on Kagan

Anti-choice group National Right to Life Committee writes to senators, urging them to block nominee

Published June 23, 2010 6:37PM (EDT)

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 confirmation just days away.

Bork said Kagan's admiration for the liberal former president of Israel's Supreme Court, Aharon Barak, disqualifies her to serve on the nation's highest court.

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 enormously 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.

At the same time, a broad 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 Justice Antonin Scalia, the court's conservative icon, 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 a White House-organized conference call to praise Kagan.

"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."

Senate Republicans, however, have worried aloud that Kagan's political background as a Clinton administration lawyer and domestic policy adviser makes her ill-suited to the job of an impartial justice.

The National Right to Life Committee, another 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.

By Julie Hirschfeld Davis

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