- By Joshua Keating
Joshua Keating was an associate editor at Foreign Policy
Looking at the opening statements of the Republican members of the Senate judiciary committee, it appears that, as expected, Elena Kagan’s description of former Israeli Supreme Court President Aharon Barak as her "judicial hero" is going to be the "wise Latina" of her confirmation hearings.
Here’s Jeff Sessions (R-Ala.):
She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.
These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire.
“Ms. Kagan has called Israeli Supreme Court Justice Aharon Barak her ‘judicial hero.’ Justice Barak is widely acknowledged as someone ‘who took an activist approach to judging.’
“One respected judge, Richard Posner, described Barak’s tenure on the Israeli Supreme Court as ‘creat[ing] . . . a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.’
Your judicial hero is an interesting guy. You’re going to have a lot of explaining to do to me about why you picked Judge Barak as your hero because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I’m sure you’ll have good answers and I look forward to that discussion.
I’m not. In fact I’m willing to bet good money that Kagan and the White House have prepared aswers to the Barak question that shed absolutely no light on her views on judicial activism. The whole Barak issue may be a little strange, but if the Obama administration is going to pick a Supreme Court nominee whose views on a range of key issues are largely a mystery, they can’t really complain when Senators go on these fishing expeditions.