Is Kagan’s Jewishness Being Used Against Her?

Her background surfaces even as Jewish groups mostly silent on wider nomination battle.

06/30/10
Washington Correspondent
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 A Jewish community divided over key constitutional questions is watching closely but mostly silently as a hyper-partisan Senate debates President Barack Obama’s nomination of Elena Kagan to succeed the retiring Supreme Court Justice John Paul Stevens — and as hints that the nominee’s Jewishness is being used against her surface.

In recent days the debate has included disparaging comments by Republican senators about her “Upper West Side” background, references Anti-Defamation League National Director Abraham Foxman called “disturbing.”

“To the extent that the Upper West Side is used as a euphemism for ‘Jewish,’ these kinds of comments are inappropriate in the confirmation process,” Foxman told The Jewish Week Tuesday evening.

In a Monday column in the online publication Salon, Editor-in- Chief Joan Walsh accused Republican members of the Judiciary Committee of “trying to make the case she’s outside the mainstream of American jurisprudence by attacking her clerking for (and admiring) legal giant Thurgood Marshall ... while singling her out as a denizen of  ‘Manhattan’s Upper West Side’ — you know, the neighborhood know for Zabar’s and bagels and, well, Jews.”

Last week there was a minor flap as some opponents, led by former Supreme Court nominee Robert Bork — whose nomination was ultimately rejected by the Senate — attacked Kagan for calling former Israeli Chief Justice Aharon Barak “my judicial hero” when introducing him before a Harvard speech.

The ADL’s Foxman said hitting Kagan for her praise of the Israeli jurist “seems like a reference to [Kagan’s] Jewishness that does not belong in these discussions.”

But many analysts said those objections seemed based mostly on Barak’s reputation as a paragon of judicial activism — something conservatives have railed against for years — and not his status as an Israeli jurist. 

In response to a question on the Barak issue by Sen. Charles Grassley (R-Iowa) on Tuesday, Kagan reaffirmed her admiration for the Israeli jurist, who she said was “central in ensuring that Israel ... would become a very strong rule-of-law nation.”

And, perhaps firing back at those making veiled allusions to her Jewishness, she added this: “As you know, I don’t think it’s a secret I am Jewish. 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.”

The low-key flap over references to Kagan’s Jewish background provided a small spark of controversy in a nomination fight that most Jewish groups are watching closely — but not as vocal participants.

Holocaust restitution, church-state separation, the recent material support for terrorism case and her admiration for an Israeli jurist were expected to come up in this week’s confirmation hearings, but there’s little indication Jewish-themed issues will be much more than sidebars in a process hampered by Kagan’s lack of a judicial record.

As usual, the Anti-Defamation League, the Orthodox Union, the American Jewish Committee and the Religious Action Center of Reform Judaism have sent members of the Senate Judiciary Committee questions for the nominee focusing on their top issues, with church-state matters at the top of the list but also including questions on the tension between civil liberties and national security, civil rights, affirmative action and the limits of federal powers.

Among major Jewish groups, only the National Council of Jewish Women (NCJW) has endorsed Kagan. Analysts offer varied explanations for that widespread silence ranging from a legitimate concern about adding to the politicization of what should be a purely constitutional debate to the political costs of  taking on high-profile battles in which their influence is likely to be very limited.

Adding to the reticence of many Jewish groups: a confirmation process that has devolved into predictable battles between partisan lawmakers and nominees well schooled in the art of saying as little as possible that can be used against them.

“Look, these nominees have been coached to keep away from anything that might be remotely controversial,” said an official with another Jewish organization who was not authorized to speak on the record. “And a lot of what we hear from senators involved in the process is purely partisan. So these hearings aren’t particularly informative, and it’s not particularly helpful for us to weigh in in such a process.”

Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, has long advocated a more active role by Jewish groups in judicial nominations, especially at the Supreme Court  level. 

Saperstein said he sees “small indications” that more Jewish groups are paying attention to confirmation debates that will affect almost every communal priority, from religious freedom controversies to the fight against terrorism — but that progress is slow.

“The Jewish community is becoming a little more engaged, as it should be,” he said. “As a community we fought for years for more expansive interpretation of our fundamental rights, more assertive protections against discrimination, for more robust government protection of the environment, for the provision of economic opportunity for people — and all of that work can be undone by a Supreme Court that swings in a different direction. So to sit on the sidelines and watch decades of effort being eviscerated is disturbing.”

The problem is, the Jewish community is increasingly divided on some of those key issues, starting with church-state separation.  And an increasingly Israel-focused communal establishment seems less willing to expend scarce resources on judicial fights in which they are unlikely to have much of an impact, anyway.

“I just don’t see any energy for First Amendment rights, in particular, that we used to see,” said Jacques Berlinerblau, director of the Program for Jewish Civilization at Georgetown University.  “It’s fading as a priority; it’s no longer an issue that animates anybody besides our mothers and grandmothers. There’s an energy drain in American Jewish concern on the issue.”

Richard Foltin, legislative director for the American Jewish Committee, said it’s a matter of resources.

“There’s no question we’re dealing with a time of great challenge for Jewish groups — in fact, for all nonprofits — in terms of resources,” he said. “At the same time, there are enormous challenges for us on the international front. Organizations have to make decisions about where they’re going to put their resources.”

Kagan has the usual Ivy-covered credentials of recent Supreme Court nominees and status as a genuine groundbreaker — she was the first woman selected as dean of the Harvard Law School and the first woman solicitor general. 

But her lack of a record as a judge — she is the first non-judge appointed since former Chief Justice William Rehnquist was appointed by President Richard Nixon in 1971 — has added to the reluctance of Jewish groups to do much more than discuss in general terms the issues facing the court.

As usual, Jewish groups will be paying particularly close attention to what Kagan says on church-state matters. While specific answers will be few, there were early indications she could satisfy both the Orthodox Union and the Reform movement, groups that differ on critical church-state issues like government funding for religious institutions but agree on some issues relating to the need for government protections for the free exercise of religion.

Last week the OU issued a statement calling her views on church-state jurisprudence “encouraging” and praising her “repudiation of ‘an extreme, dogmatic and outdated view’ of the Establishment Clause in the course of her Solicitor General confirmation hearings last year.”

The OU was particularly interested in memos Kagan wrote while serving as solicitor general in the Obama administration and during her tenure in the Clinton administration that revealed “a vigorous view for expanding Free Exercise rights and pragmatic and balanced approach to Establishment Clause issues.”

Still, her record on the issue — and others dear to the hearts of Jewish leaders — is scanty.

“On Establishment Case law, there’s very little — just scribbles here and there,” said an official with a Jewish group active in church-state fights. “It’s all tea leaves. And all indications are that she won’t take the opportunity of this week’s hearings to educate the country about her views.”

Barring dramatic revelations in the Judiciary Committee this week, Jewish groups will do what they’ve done in most Supreme Court confirmation battles since Bork: watch and discuss, but not endorse or oppose.

“There’s a recognition that most of these people will be confirmed, anyway,” said Mark Silk, director of the Greenberg Center for the Study of Religion in Public Life at Trinity College in Hartford.  “So why tick people off on either side when it won’t affect the outcome?”

Jewish groups may be even more silent than usual because Kagan, if confirmed, would be the third Jew at one time on the Supreme Court — an historic first.

Brandeis historian Jonathan Sarna said Jewish groups tend to be quieter when the nominee is Jewish.

“Privately, there’s a residual concern that maybe if we’re noisy, we could hurt the nominee and that it might raise anti-Semitic comments about the candidate.”

In Kagan’s case, MSNBC commentator Pat Buchanan has already complained that “if Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats. Is this the Democrats’ idea of diversity,” leading the Anti-Defamation League to call the columnist a “a recidivist anti-Semite.”

 

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07/06/2010 - 09:28

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I do not think the Kagen being Jewish does not have a darn thing to do with her being appointment or non appointment. I think that her being a radical progressive, socialist is what is stirring the pot. It would not matter if she was Jewish or not. She could and probably would legislate from the bench if given the chance.
This article is one of the most pathetic, but not unexpected case of grievance politics that i have seen. No one has attacked Kagan for being Jewish, other than a few crank antisemites and Pat Buchanan. And Buchanan's point that there would be no white Protestants in the Supreme court despite them being 50% of the population is not unreasonable in the grievence game. Articles like this tell us to support Kagan because she is Jewish. And if there the last Jewish Justice were replaced by a gentile, I'm sure that there would be grumbling. We are 2% of the US population, and are “represented” by 22% and soon 1/3 of the court. “Represented” that is if we look at the court like an affirmative action game, in which case we shouldn't even have one justice. But the US Supreme Court is not supposed to represent anyone, in which case, the presumption behind this article, that Kagan as a Jew deserves to be on the court, is asinine. Pointing out that Kagan grew up on the Upper West Side is not a racial thing. I'm an upper East Side Jew and saying that I grew up there is a description of a circumstance that partially formed my views. Hence pointing out that Kagan grew up in an area known for it political radicalism, one that she represents, is completely legitimate. Foxman et all are making unsubstantiated slanders of antisemitism in order to really say that Kagan is Jewish and therefor we can't judge her qualifications or opinions. Condemning Kagan for holding Aharon Barak as her hero is antisemitic, it is holding people equal. That Aharon Barak was an Israeli Supreme Court Justice does not mean that we can't condemn him. Plenty of Jews do so. And lets not remember that this paper runs leftists attacking Israel' politicians and government decisions with every issue. So being Jewish or Israeli clearly isn't the issue. What has prompted the hysteria is the assualt on a lox-loving leftist. Barak was one of the most controversial Supreme Court justices, who all but declared himself head legislature when he started declaring laws unconstitutional or mandating other laws, in country without a constitution. And he was no protector of liberty, overturning a law that protected Arutz Sheva/Israel National News and other radio stations largely because he opposed their political opinions. So it is fitting that Kagan, who recently argued to the US Supreme Court that the printing of political books may be legally banned because the FEC would not enforce this, is a fan of Barak. It is not fitting for her to sit on the US Supreme Court. And it is even less fitting for Jews to scream racism when she is attacked for her legal opinions and contempt for the Constitution. I notice that the author of this hit piece, forgot to note that the Rabbinical Alliance of America condemned Kagan. I suppose it didn't fit with his agenda of declaring Kagan a victim of his imagined conservative antisemitism. Perhaps he should take a look at the anti-conservative prejudice of his class and the contempt he has for the Constitution.
Yep...could be a LOT of Saudi money made an impact on Kagan. AND, the lefties sure seem to love the Islamists post 9-11.
I'd concur and also point out that "...Israel has meant a lot to me and my family" really is a non-statement. It also meant a lot to Haj Ali Husseini (Grand Mufti of Jerusalem, Nazi agent, career Jew hater) and his nephew (Yassir Arafat). But what did it mean to her? This statement is not only suspiciously evasive, but gratuitously mentions her family, as if to reassure us that she does have a family and therefore isn't a clone. Well, I want more proof.
Kagan: "The state of Israel has meant a lot to me and my family." Interesting, and perhaps revealing, that this sentence is in the PAST TENSE. Carefully unmentioned in Besser's article is the fact that Kagan, as Harvard Law School dean, took massive sums of money from the Saudi royal family for student aid and scholarships. She clearly benefited from the Saudi contributions, at least to the extent that they built her a reputation as a "master fundraiser." Did the Saudi money corrupt her views on the Israel-Islamist conflict? Given the present soured relationship between Israel and the Obama administration, anyone maintaining loyalty to that administration, like Kagan, who professes an admiration for Israel must be looked at with skepticism.
It is an interesting semantic choice to state that "Israel MEANT" (past tense) a lot to her. Obama's open alliances with anti-semites his entire career (from Israel-is-a-dirty-word Rev. Wright, under whom he sat for 20 years) to his first act being a call to PA terrorists is cause to suspect every action of the Obama administration with regard to the Jewish people, and Israel, in particular. Obama's reluctance to share the F-35 in a meaningful way with Israel; his defacto arms embargo of Israel; and his aid to Israel's enemies confirm his intent. With regard to Kagan specifically; her ancestors may be Jewish, but she is, at best, an open apostate. She is quite open about how she rejects the Torah. Apostate Jewish people are always the most dangerous to their fellow tribesman.
I guess the oldest Jewish women's organization in the country is not a major American Jewish organization?? As the Jewish Week surely knows, the National Council of Jewish Women endorsed Elena Kagan last month and has been working hard across the country for her confirmation. We did not take Kagan's religion into account when we considered whether to endorse her. The innuendos about her Jewishness are indeed disturbing as have been comments made about key constitutional rights and the slurs against the legacy of Justice Thurgood Marshall. Those in the Jewish community who continue to ignore judicial nominations do so at their peril -- the peril to the issues about which we care so much. Fortunately, there are those like NCJW who are deeply and actively involved.
Elena Kagan is against the first and second amendment which automatically makes her unfit to a judge in the highest court in the land!!!
Elena Kagan is not qualified for the supreme court! She is nothing but an Obama operative who will do his biding if she is confirmed! She is against free speech, she thinks the government should be allowed to ban books they disagree with. Hitler burned books too! When she was solicitor general she blocked the 9/11 victims families from suing the Saudis!! She is a socialist and the last thing we need is some radical left wing activist on the supreme court and who gives a damn that she's jewish! just because she's Jewish, doesn't make her qualified for the highest court in the land! She's against the 1st and 2nd amendment which makes her unfit to be a judge!!! Affirmative action is reverse racism which is also in favor of!!
Jew or non-Jew, she should not be ratified. Her religion should not be held against her, for sure, but also, she should not be ratified because she is Jewish (or Hispanic, or a female, or African-American, etc.) nor should we believe (if she is not ratified) that she didn't get it because she is Jewish.
Like Larry Schatt, I also wondered what was in Sen. Graham's mind when asking where she was on Xmas. But, by now I'm wondering why that's never asked or written about. At least, I've never seen anything on that subject.
Buchanan's point is valid and does NOT indicate he is a "recidivist anti-Semite." I think the ADL should disband. Its usefulness or need is long since passed. Jews thrive in the USA. There is very little anti-Semite hatred in this nation. Get over yourselves and quit being snide name-callers, hyper alert to anything that can be somehow twisted into being a racial slur against Jews. The ADL's comment in this story is sophomoric and stupid. For shame, for shame, ADL. "In Kagan’s case, MSNBC commentator Pat Buchanan has already complained that “if Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats. Is this the Democrats’ idea of diversity,” leading the Anti-Defamation League to call the columnist a 'a recidivist anti-Semite.'"
I wish to remind the readers of this column that Pat Buchannon has spent most of his life trying to diversify our government. He was always willing to let non-catholics serve in any position they desired so long as they were male and christian.
Did anyone notice that Senator Lindsay Graham asked Ms. Kagan where she was on Christmas? Huh? While Ms. Kagan's retort "at a Chinese restaurant like all Jews" was laugh provoking, you have to wonder what was in Senator Graham's mind when asking this question.
To Larry Schatt: "Did anyone notice that Senator Lindsay Graham asked Ms. Kagan where she was on Christmas?" What was in Graham's mind when he asked that question was nothing sinister or antisemitic. He prefaced it with a specific reference to the African Muslim underwear bomber who was apprehended last Christmas at Detroit Metro Airport after failing a suicide bombing attempt on an American plane. The question was relevant in the sense that Kagan, as Solicitor General at the time, might have engaged in discussions relative to prosecuting the suspect.
I found it strange to hear this comment:" a Jew from the upper West Side". I was a German Jewish refugee, who grew up in Washington Heights , went to George Washington High School which was also attended by Kissinger and Greenspan.

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