Supreme Court Nominee Elena Kagan: Israel Means a Lot to Me


us-supreme-courtSupreme Court nominee Elena Kagan today rejected Republican charges she would be a liberal judicial activist, brushing off complaints she was more interested in politics than legal precedent and promising her rulings would be based solely on the law.Criticism of the judicial method of Israel’s former Supreme Court president, Aharon Barak, featured high on the second day of Kagan’s confirmation hearing at the Senate Judiciary Committee.

When asked whether she would follow the method adopted by Barak when deciding cases, Kagan responded with a resounding: “I will not”, but added that she admired what he had done for the Israeli judicial system.

“I do admire Justice Barak,” Kagan clarified. “He is very often called the John Marshall of the state of Israel because he was central in creating an independent judiciary for Israel and in ensuring that Israel – a young nation, a nation threatened from its very beginning in existential ways and a nation without a written constitution -with all those kinds of liabilities would become a very strong rule of law nation.

“And that’s why I admire Justice Barak. Not for his particular judicial philosophy, not for any of his particular decisions.”

“As you know, I don’t think it’s a secret I am Jewish,” she added. “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.‬”

If appointed, Kagan would be the third Jewish justice on the nine-member Supreme Court panel.

“My politics would be, must be, have to be completely separate from my judging,” Kagan told Republican critics at the hearing. “The question is always what the law says.”

Senator Jeff Sessions, the panel’s senior Republican, pressed Kagan on whether she would follow Obama’s political agenda and whether she was a “liberal progressive.”

“I honestly don’t know what that means,” Kagan said. “This isn’t a job, I think, where somebody should come in with a particular substantive agenda and try to shape what they do to meet that agenda.”

Kagan, 50, has sparked little controversy compared to other Supreme Court nominees and appears headed to relatively easy confirmation. Her nomination has been overshadowed by recent events, including the Gulf of Mexico oil spill and the removal of Afghanistan war commander U.S. General Stanley McChrystal.

Both parties jockeyed for political advantage during the hearing as November’s congressional elections approach.

Democrats have criticized what they say is the court’s shift to conservative activism under Chief Justice John Roberts.

Kagan, who is Barack Obama’s solicitor general and a former aide in the Clinton administration, refused to take the bait when Republican Jon Kyl asked if she agreed with complaints the court had favored corporations in recent rulings.

“I would not want to characterize the current court in any way — I hope one day to join it,” Kagan said.

“And they said you weren’t political,” Kyl responded to laughter from Kagan and the crowd.

Kagan, a former dean of the Harvard law school, defended her decisions limiting access to military recruiters under university anti-discrimination rules because of the military’s “don’t ask, don’t tell” policy on toeivah, which she called unjust.

While dean of the school, Kagan reinstated Harvard’s policy preventing military recruiters from using its career office, but allowed them access through student groups.

“I’m confident the military had access to our students, and our students had access to the military throughout my entire deanship,” she said, adding she respected and “revered” the military.

“But I also felt a need to defend our school’s very longstanding anti-discrimination policy and to protect the men and women, the students, who were meant to be protected by that policy: the [toeivah] students who wanted to serve in the military,” she said.

Sessions said Kagan’s decision made the military second-class citizens on campus. “The actions you took created a climate that was not healthy toward the military,” he said.

Talking to reporters afterward, he said he was “less comfortable” with Kagan after the exchange.

If Kagan wins Senate confirmation to succeed retiring Justice John Paul Stevens, she will be the first new member of the high court in four decades who has never been a judge. She also would be the current court’s youngest member and its third woman.

Kagan was asked several times about a book review she wrote that criticized high court confirmation hearings as a charade because nominees rarely divulged their real views on key cases.

She has adjusted her view now that she is on the other side, she said.

“I skewed it too much,” she said of her criticism. “It wouldn’t be appropriate for me to talk about what I think about past cases — you know, to grade cases — because those cases themselves might again come before the court.”

Each of the Judiciary Committee’s 19 senators have 30 minutes during the first round of questioning, which is expected to last all day today and into Wednesday.

Under questioning from Democratic chairman Patrick Leahy, she said the court’s decision on Monday extending gun rights to every city and state was “settled law.”

On abortion, she said the court had repeatedly held that a woman’s life and health “must be protected.”

Kagan also said she supported televising court hearings, and promised to recuse herself from any case where she was the counsel of record as solicitor general. She said there were about 10 cases in that category on next year’s court docket.

{Haaretz/Yair Israel}


  1. (footnote on last comment)

    B’Ezras HaShem, let me explain what this “‘don’t ask, don’t tell’ policy on toeivah,” mentioned here in this article is about.

    For very many years, despite the spreading of the Toeiva rights business, the armed forces of the United States (the Army, the Navy, the Marine Corps, the Air Force, and the Coast Guard) still formed a little bit of an island of decency. They would not accept Toeiva people as recruits, and if a soldier was discovered to be a Toeiva person, he was expelled.

    In 1993, former President William Clinton took office. He was very strong for Toeiva rights; one of his major moves was to make the armed forces change their policy to instead fully accept Toeiva people. However, the military commanders and the Congress fiercely opposed this pro-Toeiva directive. Finally though, both sides agreed to a middle ground compromise, which was called “Don’t ask, don’t tell.” This meant, that the military officers will not ask any recruits any questions about their private lives — “Don’t ask” (and thus a Toeiva guy will be able to enter the armed forces and the officers will “look the other way”). At the same time though, there is also “Don’t tell” — in other words, the military is in effect saying to a Toeiva guy: “We are going to let you into the military; however, you will have to be quiet about it and keep it to yourself. If you will start blabbing about it and start bragging ‘I am G—Y!’ then, we will throw you out!” (See the text of the law at

    The Toeiva people and their fanatic liberal supporters though, were not satisfied with this compromise. Just recently, led by President Barak Obama, the Congress repealed the law, and now, the new policy is going to be that even a Toeiva guy who comes into the military and openly brags about it must be fully accepted!!

    Miss. Kagan was one of those people who was vehemently against this “Don’t ask, don’t tell” compromise. She was so fanatic about it that, as is related in this article here, when she served as the Dean of the Harvard University School of Law, she would not allow military recruiting representatives to take part in the school’s career office. She did this because she felt that the US military (which followed the “Don’t ask, don’t tell” directive and thus would not accept a person who openly bragged that he was Toeiva) was doing discrimination!!

  2. #1

    It is discrimination. By definition. You clearly feel it is justified, but that doesn’t make any difference.

    While our tradition does not allow for a Toeiva lifestyle, there’s nothing to say that such a person can’t serve in the military. The two are unrelated. In fact, the Torah stipulated which types of people should not be allowed to take part in a battle, and last I checked, Mishcav Zachar was not one of them. Shouldn’t we be as open and accepting as our tradition allows us to be? If something is not forbidden, don’t try to be frummer than Chazal and God.

  3. Why couldn’t she restrain herself? America simply needs leaders and judges who put America first, second and third, and don’t have loyalties to any state. Period.

  4. To Comment #2 from “icomeanon”:

    First of all, in the instructions for who should not serve in the army, the Torah (Devarim-Deuteronomy, chapter 20, verse 8) states: “And the officers shall continue to speak to the people and say, ‘What man is there who is fearful and fainthearted? Let him go and return to his house, that he should not cause the heart of his brothers to melt, as his heart.'” Rashi on that verse states: ” . . . [What man is there] who is fearful and fainthearted: . . . Rabbi Jose the Galilean says that [it means] one who is afraid of his sins [that they will cause him to fall in war, as he is unworthy] . . . ” (translation at

    The Talmud, Mesecta Sota, folio 44b, explains that a sin that a person should be afraid of can be (even) a minor infraction of that he interrupted the Tefillin proceedure when he chatted a little between placing on the hand Tefillin and the head Tefillin.

    So certainly, a person who is, very tragically, involved in the very worst sin of Toeiva definately has more than plenty to be afraid of and thus does not belong with his brothers who are going to war.

    Furthermore, the Torah (Devarim-Deuteronomy, chapter 23, verses 10-15) also states: “When a camp goes out against your enemies, you shall beware of everything evil . . . For the Lord, your God, goes along in the midst of your camp, to rescue you and to deliver your enemies before you. [Therefore,] your camp shall be holy, so that He should not see anything unseemly among you and would turn away from you.” (Translation at

    The phrase “anything unseemly” that G-D does not want to see in us is the English translation of the Lashon HaKodesh phrase in the verse “Irvas Davar.” As is well known, this Lashon HaKodesh word “Erva” refers to items of immoral corruption; thus the translation here expressed it in very refined terminology: “anything unseemly.”

    Anyway, the Torah here very clearly states that G-D does not want to see any “Irvas Davar” – “anything unseemly” in our army camp. So obviously, something of Toeiva, which is of the very worst levels of “Irvas Davar” – “something unseemly,” G-D certainly does not want to see in our army camps.