Bork: Burden of Proof Now Shifts onto Kagan

Thursday, 24 Jun 2010 10:33 PM

By David A. Patten

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According to conservative legal scholar Judge Robert H. Bork, questions about Supreme Court nominee Elena Kagan are so significant that the burden will now shift onto her to defend her nomination during confirmation hearings.

Bork's remarks came in a teleconference hosted by Americans United for Life (AUL), a pro-life organization that staunchly opposes Kagan's nomination.

"When she's nominated, I think the presumption is she should be confirmed," Bork told the media Wednesday in response to a question from Newsmax. "It's only a presumption, it's not an iron rule.

"But if issues are raised that cast doubt upon that, then I think the burden does shift to her to dispel the doubt," Bork said.

Asked if enough doubt has been raised about Kagan to shift the burden of proof to her, Bork, who opposes her nomination, responded: "Oh yes, I do indeed."

The AUL news conference is part of a larger effort by conservatives to encourage a vigorous challenge to Kagan. Among the many criticisms leveled at her:
  • She has a limited scholarly record and lacks judicial experience.
  • During her term as dean of Harvard Law School, she blocked the U.S. military from conducting on-campus recruitment.
  • In her positions in various Democratic administrations, Kagan, who currently serves as U.S. Solicitor General, never served as a legal counsel.
  • According to Bork, Kagan lacks sufficient experience to develop a mature judicial philosophy.
  • During her time at Harvard, Kagan praised Israeli Justice Aharon Barak as "my judicial hero." Barak, Bork said, "may be the worst judge on the planet, the most activist-leaning."
It remains to be seen whether such criticisms can slow Kagan's momentum. Her confirmation hearings are set to begin Monday.

Of course, Bork has first-hand experience with the trials and tribulations of the confirmation process.

In 1987, President Ronald Reagan nominated him to serve on the Supreme Court. During his confirmation hearings Bork offered a brilliant but blunt evaluation of the soundness of the Roe V. Wade decision. He encountered bitter partisan opposition and the Senate rejected his nomination.

Learning from that experience, subsequent nominees have avoided detailed discussions of their views in order to avoid saying anything opponents could use against them.

Kagan addressed this phenomenon in a 1995 article she wrote for the Chicago Law Review. She praised the Bork hearings for offering "a serious discussion of the meaning of the Constitution."

"Subsequent hearings," Kagan complained, "have presented to the public a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

That "vapid and hollow charade" is now expected to be the precise approach Kagan will use in a bid to win confirmation – a strategy based on the assumption that barring a serious gaffe senators will accede to her nomination.

But Bork's perspective is that so much doubt has been raised about Kagan's qualifications, it will be her responsibility to prove she's up to the job.

Also participating in the AUL event was Notre Dame law professor Gerard Bradley. He too said Kagan must allay senators' concerns if she hopes to win the nomination.

"I think that a prudent senator should at this point provisionally take the view that she's not proved herself worthy of appointment to the Supreme Court," Bradley said.

"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," the law professor said. "And if … Elena Kagan refuses or fails to provide answers to those questions, I think a senator ought to vote no on her confirmation."

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