President Obama’s Supreme Court nominee has no track record on the bench as she’s yet to ever wear a robe. But her judicial philosophy is no mystery, and that is troubling.
You can tell a lot about people by their role models. For prospective judges, the convictions and philosophy of their heroes tells even more.
The President’s nominee to the Supreme Court, Elena Kagan, called Aharon Barak “my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.”
One of the troubling things about Kagan’s 2006 statement is her assumption that the role of judges is to “advance” abstract concepts and values, rather than faithfully apply the law that they have been given by the people through the Constitution or statutes passed by legislatures.
So who is Aharon Barak? Barak is the retired chief judge of the Supreme Court of Israel, and is considered one of the most liberal activist judges in the entire world, according to leading judges across the political spectrum. Consider the following:
• “[Aharon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”—The Hon. Justice Richard Goldstone, a liberal 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.
• “I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak ‘establishes a world record for judicial hubris,’ he came very near the truth.”—Judge Richard Posner, a prominent federal appeals court judge in Chicago.
Barak’s book, The Judge in a Democracy, has been called “a textbook for judicial activists.”
In his review of Barak’s book, entitled “Enlightened Despot,” Judge Posner called the book “Exhibit A for why American judges should be extremely wary about citing foreign judicial decisions.” Posner concluded that Barak “created out of whole cloth … a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.”
Given that our current nominee for the Supreme Court thinks that Barak’s “advancement” of legal doctrine is heroic, we must pay particular attention to the novel rules of law he created in his judicial opinions:
• Barak held that the “basic laws” passed by the Knesset, Israel’s parliament, could never be repealed.
• He claimed “the right to judge the deployment of troops in wartime” and that a court can countermand military orders.
• He argued that judges “cannot be removed by the legislature but only by other judges.”
• He “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.”
• He also argued that “any government action that is "unreasonable" is illegal and that in the name of “human dignity” a court can compel the government to alleviate homelessness and poverty.
Kagan’s admiration for Barak should be no surprise, since she worked for Abner Mikva, one of the most liberal activist judges in American history.
Kagan is so admiring of judicial activists that she sought to silence congressional critics of activist judges. While dean of Harvard Law School in May 2005, Kagan joined a letter by law school deans that rebuked members of Congress as “irresponsible” and asserting that their criticism of activist judges was “harmful to our constitutional system and to the value of a judiciary.”
Apparently, no matter how political judges get, they should be beyond criticism. But it’s precisely when judges begin to act like politicians that they should be subject to the same open criticism that politicians are.
Back in 1995, Elena Kagan proposed a higher standard for Senate evaluation of Supreme Court nominees:
“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution.”
Senators should keep this standard in mind in evaluating where Kagan would “move” the court. As she has so openly embraced judge’s legislating from the bench, Kagan should be questioned about what matters she will take into her own hands. Will she advance her pro-abortion viewpoints or expand the power of judges to override pro-life laws they don’t approve of personally?
Americans have a right know. And the senators have a duty to ask whether Kagan plans to follow in Barak’s footsteps.