Monday, May 24, 2010

Ultra radical Israeli judge is Elena Kagan's "hero"

In Powerline blog:

"From the Harvard Law Record, via Ed Whelan, we learn that Elena Kagan considers Israeli supreme court justice Aharon Barak her 'judicial hero.' According to Kagan, Barak 'is the judge who has best advanced democracy, human rights, the rule of law, and justice.'

However, it would appear that Kagan's judicial hero actually has very little regard for the rule of law and, indeed, is the antithesis of what a judge should be...

Israel does not have a constitution. It has 'BasicLaws' 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 That is an amazing idea: could our Congress pass a law...and the Supreme Court declare that the law could never be repealed?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.

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 government action that is "unreasonable" is illegal ("put simply, the executive must act reasonably, for an unreasonable act is an unlawful act"); ...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...

If Barak really is Kagan's judicial hero, and I think we should take Kagan at her word, then she is manifestly outside the legal mainstream (in 'completely different juristic universe,' to borrow the phrase Posner applies to Barak), and should not serve on the U.S. Supreme Court."

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