Thursday, June 24, 2010

Supreme Court Hijinks

Judge Robert Bork
( – Former federal appellate judge and Supreme Court nominee Robert Bork says Elena Kagan lacks the "mature philosophy of judging" needed to be a Supreme Court justice and that the Supreme Court is "drifting" toward becoming "a committee of ideologues."

In a Wednesday conference call sponsored by Americans United for Life, Judge Bork said Kagan still displays the tendencies of a young constitutional lawyer with “inflated dreams” of what constitutional law can and should accomplish.

“It is 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, as they get experience.”

But Kagan "has not had time to develop a mature philosophy of judging,” he added.

Kagan, 51, is the solicitor general of the United States and the former dean of the law school at Harvard University. She has never served as a judge in any professional or legal capacity.

Bork added that this lack of judicial maturity poses a “danger” for the country should Kagan be confirmed because she cannot have developed in academia the “prudence” needed to be an effective judge.

Solicitor General Elena Kagan was nominated to the U.S. Supreme Court on Monday, May 10, 2010. (AP photo/Susan Walsh)
“Young people, particularly, have dreams of glory, not for themselves necessarily, but dreams of glory for the law and the courts and what they can do,” said Bork. “As they grow older, those visions should mellow, I would hope.”

“That’s the danger of Ms. Kagan is that she hasn’t had any experience that would lead her to develop,” said Bork. “The academic world is not a place in which you learn prudence and caution and other virtues of a judge. She hasn’t had any [judicial] experience anywhere else, that I know of.”

Bork also said that during her confirmation hearings Kagan should be questioned about where she will look when making judicial decisions--whether she will look solely within the American legal tradition or whether she will consult other, foreign legal theories.

“I think she should be called upon to describe the kinds of materials she would look to, to find and answer to a legal question,” Bork said. “That is of course, it’s possible for a nominee to look to conventional legal materials or it’s possible for a nominee to go abroad to sources of foreign law, international law and so forth.”

Bork said that looking to foreign law “really frees the nominee, once confirmed, to do almost anything he or she desires.” He said questioning Kagan about where her views come from could prove illuminating, particularly in regards to issues like abortion.

“I think the first set of inquiries should go into what she considers the materials from which she should draw in deciding, for example, the constitutional right to an abortion, which I don’t think exists,” said Bork. “If she does, she ought to be asked what basis--on what materials--does she base that [opinion].”

Bork also said that Kagan’s nomination marked another step on a road to what he called rule by a “committee of ideologues.” He said the only way to change that would be to change the composition of the Supreme Court.

“We’re drifting toward a committee of ideologues, if anything,” Bork said. “I don’t think there is any legislative check that can change it. The only thing you can change is the composition of the court.”

Bork said that Kagan would be one of those ideologues, saying that she would most certainly be a left-wing, “activist” judge.

“I think the Kagan nomination is part of the shift because the president wants to encourage the shift, whether or not Ms. Kagan is conscious of it,” he said. “She would be an activist, left-wing judge … she’s bound to be activist and quite liberal.”

Bork was nominated to the Supreme Court by President Ronald Reagan in 1987 but the Senate rejected the nomination, 58 to 42, largely along party lines. Bork was judge of the U.S. Court of Appeals in the District of Columbia Circuit (1982-88), the acting U.S. attorney general in the fall of 1973, and the solicitor general of the United States (1973-1977).

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