Former Supreme Court Pick Robert Bork Opposes Pro-Abortion Nominee Elena Kagan

National   |   Steven Ertelt   |   Jun 23, 2010   |   9:00AM   |   WASHINGTON, DC

Former Supreme Court Pick Robert Bork Opposes Pro-Abortion Nominee Elena Kagan

by Jim Anderson and Steven Ertelt Editor
June 23
, 2010

Washington, DC ( — Former Supreme Court nominee Robert Bork held a conference call with officials from Americans United for Life on Wednesday to officially announce his opposition to President Barack Obama’s nominee Elena Kagan.

Journalists from a vaiety of publications participated in the conference call because of Bork’s credentials and his status as a pro-life nominee who was the subject of considerable controversy.

Bill Saunders, the senior Vice President for Legal Affairs for AUL started off by saying there is more of a story to Kagan than what many media outlets seem to relay.

Saunders admitted that Kagan, as never having been a sitting judge, has no extensive legal opinions by which to discern her judicial demeanor and said each of her written pieces seem to indicate a position on issues like abortion that Americans United for Life would oppose.

“She has written some law review articles, she has given some speeches, she has done some other things that we think, given that we have dug into this as deeply as we have, we think gives important clues as to the kind of justice she would be," he said.
Saunders said, “She opposes the simple choice by Congress to favor childbearing over abortion."

"[She was] very critical of a case called Rust v. Sullivan, in which the Supreme Court upheld the right of Congress to do that. She is also in her documents that have come out of the Clinton White House, it is clear that on partial birth abortion that she was trying to… she was advising the President not to agree to anything that wasn’t at least paid for by the state," he explained.

Judge Bork criticized Kagan’s idea saying that such questioning brings up whether the courts are responsible for the Constitution or whether the Senate is responsible.

Bork pointed out Elena Kagan’s regard for Justice Aharon Barak of Israel and spent most of his time showing how his opposition to Kagan’s appointment is focused on her willingness to bring in legal arguments extraneous to the US constitution or US law.

Bork said Barak “may be the worst judge on the planet” because of his judicial activism.

Bork at one point said Elena Kagan’s judicial temperament was not fully matured. Later Bork jokingly said he should not have called Kagan immature in her judicial temperament but that he did so because it was true.

Bork said he is worried Obama is more interested in a politically correct pick than a good judicial pick.

"“For some reason, the President is all excited about having a ‘first,’ and this would be the first court with three female judges on it,” Bork said.

At another point the Judge, commenting as to why justices do very little debate in their chambers, chided American culture for its lack of intellectual character leading to many jurists being fixed in their opinions and so closed to true argumentation. He said that a judge of moderate judicial demeanor, once seated has never slid to the right over the last hundred years, that all such judges in the last century have been influenced to shift to the left.

Prof Gerard Bradley of the Notre Dame School of Law commented that while Kagan had some credential, she was a stark contrast to the impressive credentials brought by the last three nominees, Chief Justice Roberts and Justices Alito and Sotomayor, in either a judicial or scholarly record.

“I think as things now stand, because of her politicized path to the Supreme Court and because of what we do know about her judicial philosophy," he said.

"I think that a prudent senator should, at this point, provisionally take the view that she has not proved herself worthy of appointment to the Supreme Court, so that provisionally a senator at this point should be withholding confirmation and should go into the hearings with an open mind and require her to answer questions, the kinds of questions, the hard questions that she described in her own law review article," he added.

"And if Elena Kagan refuses or fails to provide answers to those questions, I think a senator should vote no on her confirmation. And if she does provide information to the senators which unfortunately confirm her admiration for Justice Marshall in the specific sense of confirming the impression or the judgment that one has on the record so far that she would be a political judge, then I think a senator should vote no in that case as well," Bradley said.

Saunders agrees the Senate needs to ask Kagan about abortion.

"And among the questions she said they should be able to answer and should be required to answer, and should be required to answer, is abortion. So we feel that it’s completely fair play and something she herself should agree to that she should be questioned on the record, under oath, before the American people, on television about this issue," he said.

After the 2008 presidential elections, Bork said he was certain Barack Obama would appoint judicial activists to the high court who would continue to uphold unlimited abortions.

“The kind of judge he wants is a soft-hearted liberal who will legislate from the bench,” Bork, who now holds a legal scholar position with the Hudson Institute, told NewsMax.

“He never mentions the meaning of the Constitution as it was originally understood or intended. He talks about the personal qualities of judges as if they were politicians – and maybe in his view they are – and how they should behave as politicians," he adds.

Previewing the retirement that led to Kagan’s nomination, Bork said, he and Gingsburg "will be replaced by liberals, so the only change is you will get younger liberals."

He predicted that, with a solidly Democratic Senate, Obama’s Supreme Court picks would likely have an easy confirmation.


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