Bork aims to Bork Barack’s Kagan with Barak
Robert Bork has taken center stage in the brewing fight over the Supreme Court nomination of Elena Kagan. Ronald Reagan's failed court nominee is making hey over the fact that as Harvard Law School dean Kagan once introduced former Israeli Chief Justice Aharon Barak as "my judicial hero." (She proceeded to say he "is the judge who has best advanced democracy, human rights, the rule of law, and justice.”)
For those unfamiliar with Barak's historic and controversial tenure as Israel's top justice ... the short version: He's exactly the kind of judge that drives the Borks of the world crazy. (And for those of you who want the longer version, check out this article in the Forward from 2007.)
Here's how Bork put it Wednesday on a conference call with reporters:
"It's typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do," Bork said. "That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I've said before, Barak might be the least competent judge on the planet."
Again, for those looking for the longer version... check out Bork's lengthy attack on Barak in a 2007 piece in the right-leaning Israeli journal Azure.
Kagan's defenders are fighting back by noting that the judicial darling of the right, Justice Antonin Scalia, also offered heavy praise for Barak, when introducing him. Once again, check out that 2007 Forward story by Benjamin Soskis:
Last March, when the American Association of Jewish Lawyers and Jurists decided to give its 2007 Pursuit of Justice Award to Aharon Barak, the recently retired chief judge of the Israeli Supreme Court, they chose a surprising colleague to present the honor: Antonin Scalia. The ceremony was held in the august interior of the Supreme Court of the United States, and in his introductory remarks, Scalia, quite comfortable on his home turf, quickly dispensed with one element of incongruity: He was not Jewish, he conceded, merely the most senior justice available. Yet he contended that his Queens upbringing provided him with a sufficient endowment of Yiddishkeit to justify the selection.
In singing Barak’s praises, Scalia then addressed the other obvious disparity between himself and the honoree. After 27 years of service, 12 as chief judge, Barak had established himself as one of the world’s foremost advocates of judicial activism. As perhaps the world’s leading expert on comparative constitutional law, he has also served as a lightning rod for those protesting the willingness of some American jurists to look toward foreign laws for instruction. Scalia happens to be one of the most vocal of those protesters, as well as one of the nation’s leading opponents of judicial activism. With the court’s two Jewish justices looking on (Stephen Breyer and Ruth Bader Ginsburg, also two of the most enthusiastic champions of foreign court decisions as juridical resources), Scalia offered a moving tribute to his “good friend” Barak. No other living jurist has had a greater impact on his own country’s legal system -- and perhaps on legal systems throughout the world -- Scalia argued. He went on to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.
Don't be silly, Bork said on the conference call, according to David Weigel, author of the Washington Post's "Right Now" blog:
"That sounds like politeness offered on a formal occasion," Bork said dismissively. "Scalia's career does not square with Barak's at all."
Of course, one could argue, what's good for the Bork is good for the Kagan. And that's exactly where the Orthodox Union's D.C. blog comes down, suggesting that this particular line of attack is not kosher:
Now, it is certainly true that Chief Justice Barak was a proud and aggressive judicial activist who led the Israeli Supreme Court into making decisions many questioned – and we were among the many doing so.
But it is also true that Kagan praised Barak in the course of introducing him to an audience at the Harvard Law School – when she was Dean – isn’t that typical social convention? Event current U.S. Supreme Court Justice Scalia did the same for Justice Barak.
Israel gets pulled into enough disputes around the world these days, and its Supreme Court continues to spark debates too.
Can’t Judge Bork and the rest of Kagan’s opponents find something else -- and less bizarre -- to attack her with?
Over at National Review Online, Ed Whelan rejects the Kagan-Scalia comparison:
Sargent somehow contends that Scalia’s comments about Barak and Kagan’s acclaim for him as “my judicial hero” amount to “equally effusive praise.” Indeed, he uses the phrase “equally effusive praise” twice in his short blog post. The equivalence he posits is absurd on its face (even apart from the fact that the very report that Sargent cites credits a complaint that Scalia “had celebrated his friend only to sequester him within the exceptionality of the Israeli legal system”).
Sargent also tries to dismiss Kagan’s acclaim for Barak as “general praise” and “boilerplate” -- as though Kagan routinely lauds judges of all stripes as her judicial heroes. And he makes the straw-man argument that Kagan’s acclaim “doesn’t signal automatic lockstep agreement” -- s though anyone had contended, say, that Kagan would be closely mimicking Barak’s order requiring the Israeli army to distribute more gas masks to residents of the West Bank.
Finally (well, at least for now) the folks at Media Matters note that another Republican legal figure -- former Reagan administration Solicitor General Charles Fried -- has praised Barak.
Jump ahead to 42:45 of this CSPAN video or read an excerpt.
UPDATE: Just in case your looking for Kagan discussion unrelated to the Aharon Barak issue:
- The Reform movement and the Orthodox Union send separate letters to Senators about Kagan and her confirmation hearings.
- A group claiming to represent 850 Haredi Orthodox rabbis says Kagan is not kosher.
Share
6 Comments
Comments RSS Feed Reader Comments
AS I Read this re: Judge Bork vs Ms Kagan, all I care to say is Judge Bork is a sour man, giving off sour grapes!
Seems to me that you are forgetting a long standing rule in DC. “It’s OK if you are a Republican.” If not, it is at least a crying shame or if not a felony.
Regarding retired Justice Barak - this discussion is nonsense and evades a real issue that Dean Kagan should be forced to address.
DEAN KAGAN owes us an explanation of why she rejected ROTC on Harvard’s campus because of the Clinton Administration’s “don’t-ask-don’t-tell” policy for the military, while she stood by silently as Harvard accepted a multi-million dollar gift from Saudi Arabia to endow a chair for Saudi and Sharia studies. Saudi style Sharia mandates death for convicted homosexuals!
Re Retired Chief Justice Barak - Bork is off base. Kagan is off base. Scalia - i’m not sure.
Barak headed Israel’s Supreme Court which has NO constitution to consult - only common law. Which to choose? the Talmud and it’s 2,000 years of questions and responses? - as Justice Menachem Elon did; Turkish Common law and its 500 years of Q & As?; British common law? and its 29 years of rule. Other country’s common law? So Barack chose everything in sight - except Jewish common law! Shame on him!
Robert Bork’s analysis (see the link to the “lengthly attack on Barak in a 2007 piece” in the JTA article) is spot-on, and raises some fundamental questions about democracy versus judicial activism that most other posters here ignore and hope will just go away. The problems are real. As most authorities affirm, Israel has the most activist Supreme Court in the world, and many of its decisions are arguably not reflective even of Jewish ethics nor, incontestably, of Israeli views generally. They reflect only the very left-liberal views of the judges themselves, who by the way choose their successors so even the nominees to the Supreme Court do not go through a parliamentary vetting and are not in the slightest responsible to nor democratically subject to the Israeli people. Instead, the nominees are merely chosen to perpetuate the ideology, for we must call it that, of the present Supreme Court. There is no advise-and-consent here, nor check-and-balance between the various branches of government, and thus no democracy in any proper understanding of that term. Barak, as Bork points out, claims that extreme judicial rewriting of Israeli law constitutes “substantive democracy” as opposed to “formal democracy,” as if elections, the checks and balances of branches of government, etc., are merely “formal democracy,” not “substantive,” while ideological decrees determined only by a judicial elite answerable to no-one are “substantive” REAL democracy. Shades of the “people’s democracies” of North Korea, the USSR, China, and the like, I say.
It is an entirely legitimate topic of concern that Ms. Kagan seems to endorse this sort of undemocratic judicial activism, rather than the duty of judges to sustain the explicit restrictions and limitations both on judicial power and on interpretation of the Constitution of the United States.
To suppose, in addition, that international law as arrived at by the too-often kangaroo court of the U.N. is superior to and should have any bearing on American law is merely to travesty both U.S. constitutional obligations and, too often, morality itself. The U.N., with its highly authoritarian block of 57 Muslim nations that have not even been able to arrive at a clear definition of terrorism, and which has gotten the U.N. to rule that Islam is exempt from all democratic criticism, is no moral nor impressive legal authority, and should not set the pattern for American law. The U.N. Human Rights Council itself legitimates blatant and innumerable human rights violations around the world, while attacking chiefly Israel whose standard of human rights is far above most of the members on the HRC itself.
Leave a Comment
To leave a comment, you must first be logged in to JTA. If you are not registered, please click here.
Already a JTA member?
Need to know? Get JTA's free e-newsletters!
Fred
06/24/10 05:30 PM
I have to disagree with Judge Bork. What makes Justice Barak great, is the role he played in the separation and independence of the Israeli Supreme Court. Under his leadership it was above and beyond politics, unlike the US Supreme Court as we saw in the Gore-Bush situation and countless others. Under Justice Barak, the Supreme Court of Israel was established as the highest moral authority in the land. While my political views may be “more” in line with the right (Judge Bork) as opposed to the left (Ms. kagan) Judge Barak, makes me proud of the role he and his court played in cementing Israeli democracy and respect for the law- even if his decisions were not always popular. That is probably why Justice Scalia could proudly associates himself with the fromer Israeli Chief Justice.