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Elena Kagan seen as brilliant and affable — and a mystery

WASHINGTON – Rabbi David Saperstein runs through a shopping list of superlatives on Elena Kagan — “self-evidently brilliant” and “steady, strategic, and tactical” — before acknowledging that he doesn’t have much of a handle on what President Obama’s choice to fill a U.S. Supreme Court seat actually believes.

In the Jewish community Saperstein, the head of the Reform movement’s Religious Action Center, apparently is not alone.

Community reaction to Obama’s selection of Kagan, the U.S. solicitor general, is enthusiastic until officials consider what it is, exactly, she stands for.

Kagan, 50, has never been a judge — she would be the first Supreme Court justice without bench experience since 1974. It’s a biography the White House touts as refreshing, but also has the convenience of lacking a paper trail of opinions that could embarrass a nominee in Senate hearings.

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President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office last month. Official White House Photo by Pete Souza

“When someone’s a solicitor general, it is really difficult to know what is their own position and what is the position of the state they are charged to represent,” Saperstein said.

A similar murkiness haunts how Kagan handles her Jewishness — she has alluded to it, but has not explicitly stated it since her nomination.

Her interlocutors in the Jewish community say Kagan is Jewish-savvy, but they are hard pressed to come up with her own beliefs.

The White House strategy going into Senate hearings appears to be blame whatever controversy trails her on her employer, on her client — on anyone but Kagan herself.

The first such controversy to emerge since Obama announced the nomination Monday was Kagan’s defense, as dean of Harvard University’s Law School, of the campus practice of banning military recruitment through the main career office (veterans were allowed to recruit independently) because of the military’s discriminatory hiring policies on gays.

Kagan inherited the policy when she became dean in 2003, but she was not shy about agreeing with it. When the Bush administration in 2004 threatened to withdraw funding, she rescinded the ban, but wrote to the student body, according to the authoritative SCOTUS Blog, of “how much I regret making this exception to our anti-discrimination policy. I believe the military’s discriminatory employment policy is deeply wrong — both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have.”

Such stirring defenses are absent from White House materials that have emerged on the matter. Instead, the Obama administration is distributing an opinion piece that appeared Tuesday in the conservative Wall Street Journal by her predecessor at Harvard Law, Robert Clark.

“As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place,” Clark wrote, not mentioning her stated ideological investment in the matter.

Another debate pertains more closely to an issue that divides the Jewish community: federal funding for faith-based initiatives.

Kagan clerked for Thurgood Marshall in the late 1980s, and in a memorandum to the Supreme Court justice, she said there was no place for such funding.

In her Senate hearings last year for the solicitor general post, Kagan outright repudiated the position she had forcefully advanced in 1987.

It was “the dumbest thing I ever read,” she said. “I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who — let us be frank — had very strong jurisprudential and legal views.”

Her defense was convenient — Marshall, of course, is long dead and unable to defend himself — and troubling to Saperstein, whose group joins the majority of Jewish organizations in opposing such funding.

“People aren’t quite sure what to make of that,” he said.

The Orthodox Union’s Washington director, Nathan Diament, on the other hand, knows just what to make of it — hay.

“As strong proponents of the ‘faith-based initiative,’ and appropriate government support for the work of religious organizations, we at the Orthodox Union find Ms. Kagan’s review and revision of her views encouraging,” he wrote on his blog Tuesday.

Saperstein noted that the Religious Action Center — along with other Jewish civil liberties groups, like the Anti-Defamation League and the American Jewish Committee — is preparing questions for Kagan to be submitted to the Senate Judiciary Committee. RAC is soliciting questions from the public as well at a Website, AskElenaKagan.com.

These groups have welcomed the nomination; the National Council of Jewish Women has endorsed it. NCJW President Nancy Ratzan cited Kagan’s affirmation during her solicitor general confirmation hearings of Roe v. Wade as established law protecting a woman’s right to an abortion, and her defense of federal campaign funding restrictions as solicitor general before the Supreme Court — a case the government lost.

“She gave us clarity as a champion for civil rights,” Ratzan said of Kagan. “We think she’s going to be a stellar justice.”

Other groups say that whatever she argued as solicitor general — or whatever she said in seeking the job representing the U.S. government before the high court — might be seen more as reflecting the will of her boss, Obama, and is not necessarily a sign of how she would function as one of the nine most unfettered deciders in the land.

“There’s a lot we have to learn,” said Richard Foltin, the AJC’s director of national and legislative affairs, even after 15 years of interacting with Kagan dating to her days as a Clinton White House counsel on domestic policy.

Foltin and others who have dealt with Kagan say she is affable and easy to get along with, simultaneously self-deprecating and brimming with confidence. She accepts with equanimity the nickname “Shorty” that Marshall conferred upon her, and charmed her Senate interlocutors at her solicitor general confirmation hearings when she said that her strengths include “the communications skills that have made me — I’m just going to say it — a famously excellent teacher.”

In addition to his interactions with Kagan during her Clinton years, Foltin — a Harvard Law alumnus — was impressed as well by her ability as dean of the school to bring conservatives and liberals together.

“This is an incredibly smart attorney who is able to reach out to people, take in diverse perspectives, and bring people together,” he said.

Obama cited Kagan’s outreach in announcing her nomination.

“At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus,” he said.

Saperstein, who also recalls Kagan from her Clinton White House days, says she brings the same deep understanding of all sides of a debate to the Jewish community.

“She was quite aware of where there were differences — aid to education, government funding of religious institutions,” he said.

Kagan, whose nomination is believed to be secure — Republicans have said they are not likely to filibuster over it — would bring the number of Jews and women on the highest bench in the United States to three. That’s unprecedented in both cases. She would join Ruth Bader Ginsburg and Stephen Breyer as Jewish justices. Sonia Sotomayor, like Kagan a native New Yorker, is the third female justice.

Stephen Pease, whose book “The Golden Age of Jewish Achievement” chronicles disproportionate Jewish representation in the law, in academe, and in the arts, said a third Jewish justice was not remarkable. Kagan would be seen as getting the job on her merits: clerking to two famous judges, teaching at the University of Chicago, advising the Clinton White House, heading Harvard Law, and then as the administration’s second most important lawyer, all by the age of 50.

“She’s done some pretty incredible stuff fairly quickly in her career,” Pease said.

Despite Kagan’s familiarity with the Jewish community, there are few clues as to her Jewish preferences. Her late father was on the board of West End Synagogue, a Reconstructionist shul in Manhattan, where she grew up on the Upper West Side. She had a bat mitzvah at the synagogue and, according to a New York Times profile, argued with the rabbi — over what it’s not clear.

Like Obama, she is close to Abner Mikva, a former federal judge and a law professor at the University of Chicago. It’s not clear, however, whether she shared Mikva’s deep involvement in the Jewish community. During her years as a lecturer at the University of Chicago, from 1991 to 1995, she was not involved with the local federation.

The White House did not shy away from Kagan’s Jewishness in making the announcement, nor did it make her faith explicit. Invitees to the announcement included the usual array of representatives from Washington offices of national Jewish groups: the AJC, ADL, NCJW, and RAC, along with the National Jewish Democratic Council and the Jewish Council for Public Affairs.

“Elena is the granddaughter of immigrants whose mother was, for 20 years, a beloved public schoolteacher — as are her two brothers, who are here today,” Obama said.

Kagan added that “My parents’ lives and their memory remind me every day of the impact public service can have, and I pray every day that I live up to the example they set.”

JTA

 
 

Bork turns Kagan process into fight over Israeli justice

It was an unexpected headline in an otherwise relatively mundane U.S. Supreme Court confirmation process: Bork tries to Bork Barak’s Elena Kagan with Barak card.

Like a ghost from confirmations past, failed Reagan nominee Robert Bork grabbed headlines last week when he spoke out against President Obama’s nomination of Elena Kagan to the high court. At the top of his complaint list: As dean of Harvard Law School, Kagan once referred to former Israeli Chief Justice Aharon Barak as her “judicial hero.”

Conservative bloggers quickly ran with Bork’s complaint, painting Barak as the prototypical liberal activist judge and insisting that Kagan’s praise of the Israeli justice was grounds for rejecting her nomination. By the weekend, a few Republican lawmakers were giving voice to the concerns, albeit in less absolute terms. Next, at least two GOP members of the Senate Judiciary Committee, Sens. Lindsay Graham (R-S.C.) and Jeffrey Sessions (R-Ala.), floated the issue in their opening statements on the first day of Kagan’s confirmation hearings.

And on Tuesday the issue took center stage, as Sen. Chuck Grassley (R-Iowa) put the question directly to Kagan — who then unapologetically affirmed and explained her praise of Barak, saying it was rooted in her Jewishness and admiration for Israel.

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Aharon Barak, formerly Israel’s top justice, recently became an issue in Elena Kagan’s Supreme Court confirmation process. Yossi Zamir/Flash 90

“I am troubled by the fact that you hold up Barak as a judicial role model,” Grassley said. “He’s been described as creating a degree of judicial power undreamed of by most U.S. justices.”

Grassley quoted Barak as saying that “a judge has a role” in the lawmaking process, and asked Kagan if she agreed. Kagan responded that she did not, but also noted that Barak operated in a fundamentally different system — one without a written constitution.

“Justice Barak’s philosophy is so different from anything that we would use or would want to use in the United States,” she said.

Instead, Kagan added, she admired Barak for creating an independent judiciary in a young state surrounded by enemies.

“As you know, I don’t think it’s a secret I am Jewish,” Kagan said. “The State of Israel has meant a lot to me and my family. And — and I admire Justice Barak for what he’s done for the State of Israel and ensuring an independent judiciary.”

Sen. Patrick Leahy (D-Vt.), the committee chairman, exercised the rarely used prerogative of rebutting Grassley, quoting conservative judges who have praised Barak.

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.

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said during a June 23 conference call organized by the anti-abortion group Americans United for Life in an effort to rally opposition to Kagan in the U.S. Senate. “That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

Following Bork’s comments, liberals in the United States rushed to defend Barak and Kagan by noting that the Israeli justice has received praise as well from judicial conservatives, most notably U.S. Supreme Court Justice Antonin Scalia. A darling of conservatives, Scalia glowingly introduced Barak in March 2007 when he was honored by the American Association of Jewish Lawyers and Jurists (with the Supreme Court’s two Jewish members, Stephen Breyer and Ruth Bader Ginsburg, in the audience).

In its report on the introduction, the Forward paraphrased Scalia as saying that “no other living jurist has had a greater impact on his own country’s legal system — and perhaps on legal systems throughout the world.” According to the report, Scalia went on “to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man — one that trumped their fundamental philosophical, legal, and constitutional disagreements.”

Told of Scalia’s remarks, Bork dismissed them as sounding “like politeness offered on a formal occasion.”

At the National Review Online, Ed Whelan argued that Scalia’s comments about Barak could not be compared to Kagan’s use of the phrase “my judicial hero.”

In an e-mail to JTA, David Twersky, a veteran journalist and analyst for Jewish organizations, recalled that at a New York Sun editorial dinner at the Harvard Club he asked Scalia about Barak.

“To my great surprise, he had nothing but good things to say and said he would never second-guess Barak,” Twersky said. “So I can tell you from personal experience that Bork is wrong.”

Twersky recalled Scalia as saying, “I mean they don’t even have a constitution over there.”

The Israel-lacks-a-constitution theme has been echoed in recent days by Barak’s defenders, who argue that the different legal traditions in Israel and the United States make it difficult to read too much into Kagan’s praise of Barak.

“Kagan wasn’t saying that she would decide every U.S. issue the same way Barak would decide the same matter in Israel,” Aaron Zelinsky wrote in a column for the Huffington Post. Instead, added Zelinsky, an American who once clerked for Barak, Kagan “respected what he stood for and had accomplished, in particular the furtherance of ‘democracy, human rights, the rule of law, and justice.’”

The Orthox Union has taken issue with Barak’s record, accusing him of improperly attempting to “impose his ideological vision” on matters when Israel’s Jewish and democratic values are seemingly in conflict. But even as it reiterated those criticisms, the organization on its Washington blog dismissed Bork’s attack on Kagan, like oter Jewish groups, suggesting her praise was merely “social convention.”

“Israel gets pulled into enough disputes around the world these days, and its Supreme Court continues to spark debates too,” the OU blog declared. “Can’t Judge Bork and the rest of Kagan’s opponents find something else — and less bizarre — to attack her with?”

Both the OU and the Reform movement waded into the confirmation process, though they stopped short of taking an actual position on the nominee.

In a letter to U.S. Senate Judiciary Committee Chairman Sen. Patrick Leahy (D-Vt.), the OU said it found Kagan’s record “encouraging.” It noted her repudiation in confirmation hearings of her 1987 memo, when she clerked for the late Supreme Court Justice Thurgood Marshall, rejecting any government funding for faith-based charities providing social services.

The OU also noted memos she wrote as a domestic adviser to President Clinton backing religious freedoms in the workplace.

The Reform movement, meantime, forwarded to the Judiciary Committee members what it considered to be the most compelling questions it solicited from its membership on the website AskElanaKagan.com.

“What limits does the Establishment Clause place on government funding that flows to faith-based organizations?” was one question.

“Do states have a right to define marriage as solely between a man and a woman? What should be the Federal role concerning marriage?” was another.

Nancy Ratzan, the president of the National Council of Jewish Women, issued a statement rejecting Bork’s criticism of Kagan and promised that the NCJW would continue to push its members to take action in support of her nomination.

Kagan’s Jewishness also took center stage later in the day. Graham, probing Kagan on threats to the United States, asked her if she was unnerved by the Christmas Day bomber.

“Where were you on Christmas Day?” Graham asked.

“Like all Jews,” she responded, “I was probably at a Chinese restaurant.”

“I could almost see this one coming,” Leahy quipped.

Then Sen. Chuck Schumer (D-N.Y.) jumped in: “Those are the only restaurants that are open!”

JTA

Ron Kampeas contributed to this report.

 
 
 
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