Image: Robert Bork
Alex Wong  /  Getty Images file
Former Supreme Court nominee Robert Bork listens during a panel discussion about the U.S. Senate's role on judicial nomination process. Bork spoke out against Kagan's nomination in a phone conference setup by the Americans United for Life.
By news services
updated 6/25/2010 1:03:25 PM ET 2010-06-25T17:03:25

A conservative judge whose Supreme Court nomination was once famously derailed by Senate Democrats criticized Obama court pick Elena Kagan on Wednesday for her judicial "immaturity" and inexperience.

Robert Bork joined anti-abortion group Americans United for Life in a conference call to discuss Kagan's upcoming confirmation hearings, which begin Monday.

"Ms. Kagan has not had time to develop a mature philosophy of judging," said Bork, adding that the former Harvard dean's tenure in academia did not offer her the experience necessary to serve on the high court.

"The academic world is not a place in which you learn prudence and caution, and other virtues of a judge, and she has not had experience anywhere else that I know of," Bork said.

Bork's career progression shares some commonalities with Kagan's. Both worked in academia before being selected for the position of solicitor general. Bork went on to serve on the U.S. Court of Appeals for the D.C. Circuit for five years.

Much of Bork's criticism centered on Kagan's admiration of Aharon Barak, the former president of the Supreme Court of Israel, whom Bork considers "the worst judge on the planet." Barak has been derided by American conservatives as the prototype of an "activist" jurist.

Bork believes that Kagan’s nomination was rooted in the president’s desire to make history with the nomination of an additional woman to serve on the high court. "For some reason, presidents get all excited for having 'firsts', and this would be the first court with three female judges on it," Bork said.

In 1987, Bork was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected the nomination. In 1995, Kagan wrote a law review article praising Bork's confirmation process as the standard by which all should be met.

While Bork opposes Kagan's nomination, one of his former clerks – whose later nomination to a federal judgeship was also blocked by Senate Democrats – spoke in her defense Wednesday.

Peter Keisler, who clerked for Bork shortly before Bork's nomination to the high court, joined a White House conference call to praise Kagan’s temperament and urge her confirmation.

"The most important thing to think about when evaluating the nominees for the Supreme Court, or for that matter for any court, is what qualities of temperament, integrity, open-mindedness, and fair-mindedness they have," Keisler said. "And if you trust yourself to people who have those qualities — as I really think Elena does — then over the long haul, we will be well served."

Keisler is the second of Kagan's supporters whose nomination by President George W. Bush was blocked by Democrats. Former appeals court nominee Miguel Estrada signed a letter of support from 28 former Supreme Court law clerks who served alongside Kagan. The Supreme Court nominee clerked for Justice Thurgood Marshall from 1987 to 1988.’s Tom Curry contributed reporting

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Explainer: Elena Kagan on the law, conservatives

  • The 50-year-old solicitor general earned seven GOP votes when she was confirmed to her current position last year. Read on for more on her previous interactions with Republican lawmakers.

  • Views on the law

    During her confirmation hearing to be solicitor general, Judiciary Committee chairman Sen. Patrick Leahy, D-Vt., asked Kagan whether she believed that "the courts, rather than the elected branches, should take the lead in creating a more just society," Her answer: "I do not agree with this view. I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so."

    As dean of Harvard Law School, Kagan told students and faculty that Harvard would risk losing its federal funding if it refused to allow military recruiters on campus. She denounced the armed forces' ban on openly gay members. "This action causes me deep distress," Kagan said. "I abhor the military's discriminatory recruitment policy." It is, she said, "a profound wrong — a moral injustice of the first order."

  • Support for conservatives

    In 2002, Kagan wrote a letter to Judiciary Committee chairman Sen. Patrick Leahy, D- Vt., supporting President George W. Bush's nomination of conservative legal scholar Michael McConnell to serve on the United States Court of Appeals for the 10th Circuit.

    As dean of Harvard Law School, Kagan defended the hiring of former Bush administration Justice Department official Jack Goldsmith, despite criticism from some administration critics at Harvard.

  • Praise from conservatives

    In the Senate vote to confirm her as solicitor general, she got seven Republican votes, including votes from conservatives Sen. Tom Coburn of Oklahoma and Sen. Jon Kyl of Arizona.

    "She is a superb lawyer and an awesomely intelligent person. In discussion with students and in conference and dispute with colleagues she has a deftness, a quickness and an aptness of phrase — with no tincture at all of pomposity or self-importance — that show she will be able to argue to the Court with consummate skill ... She is a wonderful person, direct, honest, and fearless." - Charles Fried, Harvard Law School professor who served as solicitor general from 1985 to 1989 under President Reagan.

    "Her success at Harvard resulted from her shrewd ability to bridge disagreement ... It might seem over the top to say that Kagan combines principles, pragmatism and good judgment better than anyone I have ever met. But it is true." - Jack Goldsmith, Harvard Law School professor who served as assistant attorney general in the Bush administration.


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