Where Were You On Christmas?

A bizarre moment in the confirmation hearing of Supreme Court nominee Elena Kagan.

Kagan explains Barak remarks

WASHINGTON (JTA) -- 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!"

Comments

[Yochanan Lavie]

Was it kosher Chinese?

[BaltimoreYid]

I doubt it.

[Catcher50]

It doesn't matter whether the Chinese food was kosher (in the DC area, it is quite possible or purely vegetarian).

The question was so out of order, so off the wall, so irrelevant, and so appallingly in bad taste (I can't think of words strong enough to describe it) that she probably just fell back on what is basically, an old joke.

[Dr. Dave]

I thought she was on a corner in a red suit ringing a bell. From the looks of things, she wouldn't need padding under the suit!!!

[Jay]

The question was presented for one reason only: to bring to light as vividly as possible that she is Jewish.

[effie]

Oh, please! The question was about the Christmas Day Bomber. I don't want a judge who is going to bend into pretzels protecting these murderers "rights." This guy was singing like a bird until the Justice Dept. said mirandize him.

And to those of you who have forgotten, Ruth Bader Ginsburg is Jewish. A Jew on the court is hardly a novelty.

[Neo-Conservaguy]

I found it, and several other exchanges very funny. She handled herself well.

[Abracadabra]

I don't know yet what I think of her political views, but I find her to be impressive as a person. She's bright, articulate and isn't fazed by the intense questioning.

And she's publicly pro-Israel and a proud Jew to boot!

[Reader]

I understand she has never been a judge.
How can she be a Justice of the Supreme Court?

[Shmarya]

I understand she has never been a judge.
How can she be a Justice of the Supreme Court?

Lots of other Supreme Court Justices were not judges before they were appointed to the Supreme Court.

A judge needs to be proficient in the law, meaning s/he needs to have excellent legal training.

In Kagan's case, that training includes everything from clerking for a Supreme Court Justice to serving as a dean of a very prestigious law school to serving as US Solicitor General.

[Jeff Eyges]

Funny how conservatives never give an Orthodox Jew a hard time.

[william e emba]

I understand she has never been a judge.

From Wikipedia:

On June 17, 1999, Clinton nominated Kagan to the U.S. Court of Appeals for the District of Columbia Circuit [...]. The Senate Judiciary Committee's Republican Chairman Orrin Hatch scheduled no hearing, effectively ending her nomination.

A Republican who cites her lack of judicial experience is simply a bald-faced cheater.

For those not in the know, the DC Circuit is generally viewed as one of the most important courts below SCOTUS. It is a common stepping stone to SCOTUS. Indeed, the vacancy that Hatch deliberately let linger was filled by John Roberts, now Chief Justice.

[chabib]

She could have said that she was lighting
her Chankukkah reef.
What do you get if you combine Easter
and Passover ? An egg Matzoh Hunt and
a Passover Parade.

[Mr. Apikoros]

Here are four illustrious Justices who were never judges before being appointed to the Supreme Court.

John Marshall
Earl Warren
Felix Frankfurter
Louis Brandeis

And here are a few who were:

Clarence Thomas
Tom Clark (Ramsey's father, considered by many the worst Supreme Court appointee ever)
Roger Taney (author of the Dredd Scott decision)

[Mr. Apikoros]

Now here are a few of the Jewish justices who have served:

1. Louis Brandeis
2. Felix Franfurter
3. Abe Fortas
4. Arthur Goldberg
5. Stephen Breyer
6. Ruth Bader Ginsburg

I probably missed a few here.

[Chamor Bli Daas]

I suspect that the question was an oblique way of reminding his right wing base of her Jewishness. She took the bull by the horns by bringing her Jewishness into the answer. Also, another very famous (or infamous) Chief Justice who, I understand, had no previous judicial experience, was the previous Chief Justice, Rehnquist

[effie]

No, the question was a lead-in to talk of the airline bombing attempt in 2009 and ask her views on what legal rights do our enemies have during war time.

Would you prefer that the questioning was: What about that 8th of Tevet Day 5770 Bomber, Ms. Kagan? Where were you on 8th of Tevet 5770 Day?

[william e emba]

The last non-judge who was nominated to SCOTUS was Harriet Miers. That didn't work out too well.

[Yankel Yissachar]

An honest response to where Ms. Kagan was on X-mas Day would've been "Eating at the Y." Later, she and her 'friend' watched re-runs of Cagney & Lacey.

[Mr. Apikoros]

Hey Yankel, kiss your boyfriend's wankel.

If I were Elena Kagan, my "friend" and I would rent the movie "Thelma and Louise" to get us in the proper mood. Then, we'd somehow mistake you for Brad Pitt.

[Mr. Apikoros]

BTW, I left out a biggie: Benjamin Cardozo, appointed by Hoover in 1932.

[Dr. Dave]

I suspect she was enjoying candy and chocolate in the factory on Christmas and singing a familiar tune:

Oompa Loompa doompadee doo
I am just another lawyer thats a Jew
Oompa Loompa doompadah dee
If I'm confirmed I'll be court Jew number three

Who do you choose as a court nominee?
A dean with no neck from the law library
Why don't you think before choosing a shnook?
Or could you not bear to look?

You'll get no
You'll get no
You'll get no
You'll get no
You'll get no originalism

Oompa Loompa Doompadee Dah
If you're not a breeder you will go far
You will live in Washington too
Like the Oompa
Oompa Loompa doompadee do

[Yankel Yissachar]

Mr./Ms. Apikoros. Okay, I'll be Brad Pitt, and you get to reprise your Ned Beatty scene from Deliverance. Again. And again. Not for nothing, but you DO have a purty mouth. Ayn kemach, ayn Toirah, meetromem.

[estee]

elena kagan seems biased .

the supreme court board does not like that .

i doubt if she passes the confirmation hearing .

[Mr. Apikoros]

Yankel, you hypocritical POS, I'd bet you'd really enjoy that.

[Mr. Apikoros]

There is no "Supreme Court Board." The Senate confirms the appointment by majority vote, as it would for Cabinet appointees.

And I'll bet she's confirmed, and will be a terrific jurist.

[Dr. Dave]

Mr. A -

That may be, but a little orange tanner and she is a dead ringer for an old school Oompa Loompa.

[Yankel Yissachar]

Mr/Ms Apikoros: For exact specifications about what I'd "really enjoy" pls call your Mom.

[kaylie]

she's a lesbian .

a good jurist, but a lesbian jurist .

she pissed off sen jeff sessions and some other committee republicans .
kagan left them .....' uneasy'...
kagan also exasperated sen arlen specter ,
that he threatened to vote against her .

see the article on nesday, july 1st, 10- page A24

[kaylie]

article on newsday , july 1st, 10 - page A24

[Mr. Apikoros]

Yankel with the Microscopic Wankel:

I guess you're unsure of your own sexuality so it makes you feel more like a man insulting Elena Kagan.

From your posts I'd infer you're about 14. In a couple of years, you'll develop your own sexual identity, and move to the West Village or Chelsea, where you'll feel more comfortable.

[Yankel Yissachar]

Mr/Ms Apikoros: Actually, I was insulting YOU, your politics, your midot, your hashkafah, your world view, your understanding of American jurisprudence, your Yiddishkeit, and your philosophy. As to the size of my wankel, none of your family members have ever complained. (In the spirit of full disclosure, your dog did bark, but just once.) Note that one is a Justice of the SCOTUS, not a jurist, you Luddite.

[Mr. Apikoros]

Hey, Yankel, if you want to insult me, do so to my face. Do you have what it takes, you black-hatted bastard?

Besides, asshat, your knowledge of the Supreme Court is quite limited, as well as your knowledge of English. All judges (and justices) are jurists. Not all jurists are justices. Capice, you stinking little twerp?

But I have to give this to you, putz: You're the first person ever to call me a Luddite. Based upon the context of your asinine posts, I doubt if you have any concept of what a Luddite is.

[kaylie]

elena kagan is a lesbian .

she thinks like a lesbian . her state of mind and integrity is the one of a lesbian .

her decision will be based on her lesbian
way of thinking .

her decisions will not be neutral , or normal . she won't follow the norm .

i hope the panel knows that .

she is not a bachelor . she's a lesbian .
big difference .

[Mr. Apikoros]

Kaylie, do you know this first hand?

[kaylie]

i suspect greatly that she is a lesbian .
no boyfriend, no husband . no male in her life . come on!

even someone who is so involved into a career , has time to spend with a boyfriend .

it's weird .

the media is not saying anything .
she might sue a newspaper , a magazine , a TV station........if they say anything about her .

[Mr. Apikoros]

And if she is, so what?

[Dr. Dave]

Did you ever consider that she has no boyfriend, no husband . no male in her life because she looks just like an Oompa Loompa!!!

[Mr. Apikoros]

Well, nobody would confuse her with Angelina Jolie.

And nobody would confuse Clarence Thomas with Brad Pitt. (Or Will Smith.)

So what? It's not a beauty contest.