Supreme Court Nominee Kagan Picks A Hero

Barack Obama's second nominee for the United States Supreme Court picked her judicial hero, then honored him at Harvard Law during her term as dean of the law school with a judicial prize. When asked recently about the 2006 ceremony, Elena Kagan reaffirmed her devotion to the judicial philosophy of Aharon Barak, former president of the Israeli Supreme Court (comparable to Chief Justice). Fortunately for Israel, that position is not a lifetime appointment.

Not surprisingly for an Obama nominee, the judge Kagan so esteems is a judicial supremacist par excellence. Kagan, like so many liberal legal scholars, believes and teaches her law students the concept of judicial supremacy as derived from the famous Chief Justice John Marshall. The only problem with that concept for lawyers and decent historians is that Marshall announced no such belief. Marshall established judicial review, not judicial supremacy. Quite the opposite from judicial supremacy, Marshall announced that the Constitution was the supreme law of the land, and that nobody, including himself, had the right to make policy decisions in conflict with the Constitution.

Distorting Marshall's viewpoint into near-unrecognizable pretzels, revisionist lawyers and judges have been attempting to rewrite the Constitution from the bench for nearly a century and a half, with a considerable acceleration with the onset of the Earl Warren Court. Yet all of those revisionist, judicial activists, and "living constitutionalists" of note in America have been downright shy compared to the outspoken Barak. In a way that couldn't even happen in America because we have a written foundational Constitution, the judicial supremacist Kagan announced from the Israeli high bench that "the court may strike down any law that it feels conflicts with basic Israeli laws. Israel's basic laws amount to a formal constitution that any law violating them should be overturned."

In other words, unlike our judicial activists who attempt to rewrite the real Constitution by interpreting it into meaninglessness, Barak 'wrote' Israel's imaginary constitution himself so that he could determine which Knesset legislation conflicted with it. As we lawyers say, he "deemed" certain Israeli principles to be a basic law tantamount to a Constitution giving the Israeli Supreme Court supremacy over the legislature and executives simply by virtue of Barak's sole and unique knowledge of a constitution that doesn't actually exist. Now that's judicial activism.

Says Barak: "The law regulates relationships between people and proscribes patterns of behavior (guess there's no Bill of Rights in the imaginary constitution). It reflects the values of society (by which he means his own views and those of his fellow social engineers). The role of judge is to understand the purpose of law in society and to help the law achieve its purpose (thereby rendering the people and their elected representatives superfluous)."

"The role of the judge is to ensure stability with change, change with stability, without allowing the legal system to degenerate or collapse into anarchy." In line with our judicial activists, Barak said in another speech that "I support the theory of 'purposivism' in which a judge interprets a constitution or law according to his determination of the modern meaning of the statute (as clarified by the non-existent constitution?)."

And here's the piece de resistance: "The judge is the mouth of the legislature in many cases, but not in all cases. When a judge has discretion (which is always, in Barak's mind), he does not merely declare what has been determined by the creator of the text. Alongside with declaration of the law, judges create new understanding of the law. Prior to the judgment there were, in hard cases, a number of possible solutions. After the judgment, the law is as has been handed down by the judgment."

Kagan's gushing support of this philosophy has caught the attention of several Senators, including a few on the Judiciary Committee. Senator Jeff Sessions asked a very salient question about Kagan: "Does she see her lifetime appointment to the court as an opportunity to promote ideas she desires and then let the law catch up?" I think the question was rhetorical, and the answer is surely "yes."

Robert Bork, formerly a federal judge and unsuccessful Supreme Court nominee believes that unlike his own defeat for things he never believed, Kagan should be disqualified for things she does believe. And her support for Barack's philosophy is one of those major disqualifying beliefs. His exact words were: "Kagan's admiration of Barak's views is disqualifying in and of itself."

For those of us who hoped Kagan would turn out at worst to be a moderate/liberal with some activist tendencies, this is a wake-up call. The judge she most admires makes Earl Warren look like a reactionary originalist. She doesn't believe in mere judicial review and some pretzeling of the law, she sees the role of a Supreme Court Justice as one in which the judge simply ignores the law, precedent and the Constitution in pursuit of doing what she personally considers to be "the right thing." She will use her considerable intelligence to sound traditionally judicial, but in fact she is a ravening wolf in sheep's robes. Unlike Sotomayor, Kagan is no dull-normal political hack. She is a true danger to our entire system of jurisprudence.