Another right-wing attack on Kagan is a bust

Looks like another attack on Elena Kagan making the rounds on the right may prove to be a bust.

The latest: Conservative writers are upset because Kagan offered kind words of praise for a retired Israeli judge who is one of the most forthright advocates of judicial activism in the world.

The only problem with this attack line: This judge also received equally effusive praise from a Supreme Court justice who was appointed by a president named Ronald Reagan and goes by the name Antonin Scalia.

The retired Israeli judge in question is Aharon Barak, who is widely derided in conservative legal circles because of his aggressive efforts to advance liberal causes. He interpreted Israeli laws as forbidding discrimination against gays and Arab citizens and offered opinions that formed the basis for laws compelling the government to alleviate poverty -- supposedly a usurpation of the powers of elected officials.

Kagan praised Barak in 2006 as "my judicial hero" and "the judge who has best advanced democracy, human rights, the rule of law, and justice." This, naturally, has conservatives sounding the alarm about Kagan's intentions, and Republican Senators are expected to aggressively quiz Kagan at her hearings as to whether she shares Barak's taste for judicial activism.

But it turns out Scalia offered equally effusive prase for Barak at a 2007 ceremony honoring him, according to The Jewish Daily Forward.



At that event, the Forward reported, Scalia acknowledged his disagreements with Barak, but affirmed "a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements."

The point is that general praise doesn't signal automatic lockstep agreement. This latest attack line, at bottom, reflects the dilemma of Kagan's opponents: There's little to go on to gauge her actual views. So any bit of praise she offered for a judge who conservatives disagree with becomes grist to attack her -- even if the praise is boilerplate.

This one seems likely to gain as much traction as the attack on Kagan for praising Thurgood Marshall did.

