Kagan explains Barak remarks

U.S. Supreme Court nominee Elena Kagan said her admiration for a former Israeli chief justice was rooted in her Jewishness and admiration for Israel.

She offered a similar explanation, if less passionate, for her penchant for Chinese food on Christmas.

Kagan, the U.S. solicitor general tapped by President Obama for the high court, has come under fire from conservatives for a speech she gave welcoming Aharon Barak when she was dean of the Harvard Law School. Barak was her “hero,” she said.

Conservatives say they reject the model of judicial activism set by Barak, who has upheld a judicial role in shaping Israeli laws.

A number of Republican senators said they would bring up her admiration for Aharon Barak during her confirmation hearings, and Sen. Chuck Grassley (R-Iowa) was the first to follow through on Tuesday.

“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 saying “a judge has a role” in the lawmaking process and asked Kagan if she agreed.

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

“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—he was central in ensuring that Israel, with all those kinds of liabilities would become a very strong rule of law nation,” she said.

She also admired Barak for personal reasons.

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

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,” Kagan 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!”