Solicitor General Elena Kagan’s “Judicial Hero”, Aharon Barak, is a problem for her confirmation to the U.S. Supreme Court.
In 2006, Elena Kagan, the President’s nominee to the Supreme Court, called Aharon Barak “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”
Aharon Barak retired a few years ago as chief judge of the Supreme Court of Israel after nearly 28 years on the bench. He is considered one of the most activist judges in the entire world by leading judges across the political spectrum.
“[Aharaon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”- The Hon. Justice Richard Goldstone, a former justice of the Constitutional Court of South Africa and chief prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia.
Barak wrote a book in 2006, called The Judge in a Democracy, which sets forth his view on what it means to be a good judge in the 21st century. His judicial philosophy is fundamentally elitist and anti-democratic.
In it, he says a judge “should adapt the law to life’s changing needs” using “the tools that the law provides (such as interpretation, developing the common law, balancing, the use of comparative law).” To interpret law, “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statue remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”
It should be noted that Barak was a Supreme Court judge of a democratic country that does not have a constitution. This is one reason that Judge Richard Posner, in his review of Barak’s book, called it “Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.” Barak endorses the use of comparative law by judges and he hints approvingly that the US Supreme Court may be moving toward its wider use.
- Barak held that the “basic laws” passed by the Knesset, Israel’s parliament, could never be repealed.
- Barak “claim[ed] the right to judge the deployment of troops in wartime.”
- Barak holds that judges “cannot be removed by the legislature but only by other judges.”
- Barak “takes for granted that judges have inherent authority to override statutes.”
- Barak converted the term “separation of powers” into the proposition that “the executive and legislative branches are to have no degree of control over the judicial branch.”
- Barak stated that government action that is “unreasonable” is illegal (“put simply, the executive must act reasonably, for an unreasonable act is an unlawful act”);
- Barak argued that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty;
- Barak held that a court can countermand military orders, decide “whether to prevent the release of a terrorist within the framework of a political ‘package deal,’” and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.
Elena Kagan should explain why such a strident proponent of judicial activism is her hero. As he is her hero, and these are his views, one must ask whether a Supreme Court Justice Kagan would interpret the U.S. Constitution according to Barack’s anti-democratic prejudices.