- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
I think some of the concerns about Elena Kagan’s "blank slate" judicial record are understandable, but if this is the best line of attack Senate Republicans have against her, I don’t think she has a whole lot to worry about:
[Aharon] Barak, the retired president of the Supreme Court of Israel, has advocated an expansive role for the judiciary in his home country. But in this country, he has emerged over the past few days as a kind of liberal judicial villain for Republicans and conservatives, who are trying to turn Ms. Kagan’s praise for him against her.
In 2006, while dean of Harvard Law School, Ms. Kagan introduced Judge Barak during an award ceremony as “my judicial hero.” She added, “He is the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.”[…]
Senator Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee, on Thursday called Ms. Kagan’s introduction “very troubling” and suggested it “might provide real insight into her approach to the law.”
On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”
First of all, Barak advocates an expansive role for the judiciary in a country without a written constitution, so his views aren’t really analogous to the U.S. court system. And noted judicial activist Antonin Scalia has also praised him.
Secondly, can Robert Bork really believe that Barak is the "worst judge on the planet"? That would mean that Iran’s "judge of death," Abolghasem Salavat is a superior jurist to the former chief justice of the Israeli Supreme Court. I’d love to hear what the good folks at AIPAC have to say about that one.