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Bork Knocks Kagan for Her Support of Israeli Judge

Robert Bork criticized U.S. Supreme Court nominee Elana Kagan because of her praise of former Israeli Supreme Court chief justice Aharon Barak.

Bork, a conservative whose 1987 nomination to the U.S. Supreme Court was knocked down by the Senate, was among a number of scholars presented by the anti-abortion group Americans United for Life in a conference call aimed at rallying opposition to Kagan in the U.S. Congress.

Bork said Kagan’s past praise of Aharon Barak was enough to disqualify her, calling Barak “the worst judge on the planet,” according to a story in Wednesday’s Politico.

The Orthodox Union’s Institute for Public Affairs blog called the attack “bizarre.”

“Kagan praised Barak in the course of introducing him to an audience at the Harvard Law School – when she was Dean,” the blog post said. “Isn’t that typical social convention? Even current U.S. Supreme Court Justice Scalia,” like Bork, an originalist, “did the same for Justice Barak.”

The OU post noted its own criticism of Barak for introducing a broad notion of judicial powers into a system that lacks a constitution.

“It is certainly true that Chief Justice Barak was a proud and aggressive judicial activist who led the Israeli Supreme Court into making decisions many questioned – and we were among the many doing so,” the post said.

In Israel, Barak has been subject to criticism from the left and the right, both for his expansive notion of judicial powers in upholding democratic values, and for deferring to national security considerations in a number of cases involving Palestinians.

Separately, a small umbrella group for haredi Orthodox rabbis issued a statement opposing Kagan’s nomination.

“Ms. Kagan is non-kosher,” said the statement from the Rabbinical Alliance of America, a reference to the fact that Kagan is Jewish.

The statement cited Kagan’s ostensible support for abortion laws. Reports of her views on abortion are based mostly on internal White House memos during her stint as a domestic policy adviser to President Clinton. She helped shaped language that took a mother’s health – and not just her life – into account in permitting late-term abortions. It is not clear from the memos whether Kagan supported late-term abortions or whether she was helping her boss make a law more politically viable.

“It should be clear that Ms. Kagan’s long line of forebearers, presumably tracing back to Sinai, would have sacrificed their lives rather than embrace the anti-G-d, counter-sanctity agenda that she has lived and promoted,” said the Rabbinical Alliance statement. “We are puzzled as to why President Obama would not honor a different minority with this nomination.”


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