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.
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.
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.