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Bork takes on Kagan's 'immature theory of judging'

Former judge and unsuccessful 1987 Supreme Court nominee Robert Bork officially opposed the nomination of Elena Kagan today, joining a conference call sponsored by Americans United for Life to argue that her admiration for former Israeli Supreme Court justice Aharon Barak disqualified her for the job.

"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. "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."

Bork went on to give a history of Barak's tenure, accusing him of creating a "parody of a court." This left most of the people on the call fairly cold, and the first questions to him pivoted immediately away from the Barak issue. But I asked Bork what he thought of the fact that other jurists, including Justice Antonin Scalia, had praised Barak and even praised his version of "judicial activism." Was praise for Barak really a disqualifying factor?

"That sounds like politeness offered on a formal occasion," Bork said dismissively. "Scalia's career does not square with Barak's at all."

Bork was asked to hone in on what the problems with the modern confirmation process were -- Kagan has, in the past, complained that post-Bork hearings have been dry, and that his hearings were a boon for "constitutional democracy." He responded to that by criticizing all of the hearings since his own.

"The vitriol of our politics has been unprecedented," he said. "Well, I shouldn't say that, because there was the Civil War." What did he want to make sure senators found out from Kagan, if they could get her to answer? "The materials she'd look to to find an answer to a legal question."

I asked Bork whether he thought the case against Kagan was so strong that Republicans would be justified in filibustering her.

"I'm not prepared to decide that," Bork said, "but the judicial filibuster is ordinarily to be avoided."

By David Weigel  |  June 23, 2010; 11:53 AM ET
Categories:  Supreme Court  
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