Kagan's 'judicial hero' has some bizarre ideas about the law

Powerline notes that Obama's nominee for the Supreme Court, Elena Kagan, has expressed admiration for Israeli Justice Aharon Barak calling him her "judicial hero" and tells us why that is a very bad signal

Quoting Judge Richard Posner on Barak:
Barak is John Marshall without a constitution to expound--or to "expand," as Barak once revealingly misquoted a famous phrase of Marshall's. . . .Israel does not have a constitution. It has "Basic Laws" passed by the Knesset, Israel's parliament, which Barak has equated to a constitution by holding that the Knesset cannot repeal them. That is an amazing idea: could our Congress pass a law authorizing every American to carry a concealed weapon, and the Supreme Court declare that the law could never be repealed? And only one-quarter of the Knesset's members voted for those laws!

What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade. . . .Among the rules of law that Barak's judicial opinions have been instrumental in creating that have no counterpart in American law are that judges cannot be removed by the legislature, but only by other judges; that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks "standing" to sue, in the American sense); that any government action that is "unreasonable" is illegal ("put simply, the executive must act reasonably, for an unreasonable act is an unlawful act"); that a court can forbid the government to appoint an official who had committed a crime (even though he had been pardoned) or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of "human dignity" a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide "whether to prevent the release of a terrorist within the framework of a political 'package deal,'" and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.

Now that is something the Judiciary Committee ought to explore with her.


Clarice Feldman



Powerline notes that Obama's nominee for the Supreme Court, Elena Kagan, has expressed admiration for Israeli Justice Aharon Barak calling him her "judicial hero" and tells us why that is a very bad signal

Quoting Judge Richard Posner on Barak:

Barak is John Marshall without a constitution to expound--or to "expand," as Barak once revealingly misquoted a famous phrase of Marshall's. . . .Israel does not have a constitution. It has "Basic Laws" passed by the Knesset, Israel's parliament, which Barak has equated to a constitution by holding that the Knesset cannot repeal them. That is an amazing idea: could our Congress pass a law authorizing every American to carry a concealed weapon, and the Supreme Court declare that the law could never be repealed? And only one-quarter of the Knesset's members voted for those laws!

What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade. . . .Among the rules of law that Barak's judicial opinions have been instrumental in creating that have no counterpart in American law are that judges cannot be removed by the legislature, but only by other judges; that any citizen can ask a court to block illegal action by a government official, even if the citizen is not personally affected by it (or lacks "standing" to sue, in the American sense); that any government action that is "unreasonable" is illegal ("put simply, the executive must act reasonably, for an unreasonable act is an unlawful act"); that a court can forbid the government to appoint an official who had committed a crime (even though he had been pardoned) or is otherwise ethically challenged, and can order the dismissal of a cabinet minister because he faces criminal proceedings; that in the name of "human dignity" a court can compel the government to alleviate homelessness and poverty; and that a court can countermand military orders, decide "whether to prevent the release of a terrorist within the framework of a political 'package deal,'" and direct the government to move the security wall that keeps suicide bombers from entering Israel from the West Bank.

Now that is something the Judiciary Committee ought to explore with her.


Clarice Feldman



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