The following report by Sheryl Gay Stolberg appears in today’s New York Times:
Most Americans have never heard of Aharon Barak. If they tune in to Elena Kagan’s Supreme Court confirmation hearings, they will.
Judge 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.”
The White House says Ms. Kagan was simply welcoming back a former student; Judge Barak studied at Harvard in the 1960s. But Ms. Kagan’s opponents have rolled out Judge Barak – “the other Barack,” some call him, in reference to President Obama – as Exhibit A in the case against her.
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.”
Hogwash, say Ms. Kagan’s backers, noting that Judge Barak has also drawn praise from American conservatives, including Justice Antonin Scalia of the Supreme Court, who introduced Judge Barak at an award ceremony in 2007. The Jewish Daily Forward reported that Justice Scalia described Judge Barak as a “judicial pioneer” and said he has “profound respect for the man.”
Even some of Judge Barak’s critics have jumped in. “Can’t Judge Bork and the rest of Kagan’s opponents find something else – and less bizarre – to attack her with?” asked the Orthodox Union’s Institute of Public Affairs.
Israel does not have a formal constitution, but Judge Barak has written that a series of “basic laws” adopted by the Knesset essentially functions as one, and has asserted that courts have authority to determine whether future laws violate these basic laws. He is also an ardent champion of civil liberties; during the Persian Gulf war of 1991, he insisted the Israeli government hand out gas masks to Arabs in Israel-occupied territories.
Aitan Goelman, a Washington lawyer who clerked for Judge Barak, compares him to two American chief justices: John Marshall, who established the principle of judicial review in the landmark 1803 case of Marbury v. Madison, and Earl Warren, who expanded the rights of criminal defendants.
“He’s like the Israeli John Marshall and Earl Warren wrapped into one,” Mr. Goelman said.