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Kagan's hero: 'Most liberal activist judge' in world

Posted By Aaron Klein On 05/13/2010 @ 5:00 pm In Front Page | Comments Disabled


Aharon Barak

NEW YORK – President Obama’s nominee for the Supreme Court, Elena Kagan, once called a judge universally regarded as one of the most extreme liberal activist high court justices in history “my judicial hero.”

“He is the judge who has best advanced democracy, human rights, the rule of law and justice,” stated Kagan in September 2006 introductory remarks at a Harvard University award ceremony.

Kagan was referring to Aharon Barak, the retired president of the Supreme Court of Israel, who at the time was receiving the Peter Gruber Foundation 2006 Justice Prize at Harvard.

Barak has been recognized across the political spectrum as one of the most liberal activist judges.

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Richard Goldstone, a left-leaning South African judge who infamously penned a United Nations report accusing Israel of war crimes, termed Barak “unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”

Jerusalem Post columnist Caroline Glick commented that under Barak’s judicial leadership “the country was effectively transformed from a parliamentary democracy governed by law into a judicial tyranny governed by the preferences and prejudices of a fraternity of lawyers that Barak empowered.”

“Barak has presided over the Court for eleven years. As a self-declared ‘judicial-statesman,’ he used his position on the bench to reshape Israeli society and politics in his own image through his “constitutional revolution,” Glick wrote.

Amnon Rubinstein, a liberal Israeli law professor and former Knesset member, stated that “in many respects the Supreme Court under Barak has become an alternate government.”

Continued Rubinstein: “Thus a situation has arisen whereby the Supreme Court may convene and decide on every conceivable issue. … This was a total revolution in the judicial thinking which characterized the Supreme Court of previous generations, and this has given it the reputation of the most activist court in the world, causing both admiration and criticism.”

Barak worked tirelessly to place the judicial branch over the executive and legislative, subjecting even the Israel Defense Forces to judicial scrutiny on matters of self-defense.

For example, he famously ruled numerous times in favor of the Palestinians and against the IDF, which petitioned to construct the country’s security fence on private Palestinian land in areas that had been used by terrorists to infiltrate Israeli population centers.

Barak’s rulings halted the security fence construction and were blamed for scores of terrorist infiltrations from the very areas where Barak had stopped the fence from being built.

Barak also ruled the Israeli Supreme Court had the right to judge the IDF during wartime and that his court could counter military orders.

Barak insisted that “everything is justicible” and enacted legislation arguing judges “cannot be removed by the legislature but only by other judges.”

That argument prompted Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit and a respected authority on jurisprudence, to remark, “only in Israel … do judges confer the power of abstract review on themselves, without benefit of a constitutional or legislative provision.”

In Posner’s review of Barak’s recently published book, he concluded Barak “created out of whole cloth … a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.”

Barak also pushed forth the argument that the “executive and legislative branches are to have no degree of control over the judicial branch.”

Charmaine Yoest, president and CEO of Americans United for Life and AUL Action, took issue with Kagan’s glowing remarks for Barak.

“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,” wrote Yoest at Human Events.

Glick, meanwhile, summed up Barak’s Supreme Court tenure: “The consequence of all these actions was the effective transfer of executive and legislative authority to the judiciary. As a result, private and public behavior that has traditionally been seen as the realm of morality and prudence; military decisions regarding Israel’s national security that had previously been under the exclusive authority of the executive; ideological questions that had been the preserve of private citizens and state bodies; and religious questions that had been the exclusive reserve of religious authorities, now all came under the authority of the Supreme Court.”



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