Is Kagan’s Jewishness Being Used Against Her?

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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