THE BLOG
06/24/2010 12:25 am ET Updated May 25, 2011

Borking Barak: Why the Right's Newest Attack on Kagan Is Wrong

This week, Republicans ramped up their newest attack on Elena Kagan: her praise in 2006 for Aharon Barak, Israel's former Chief Justice. This line of attack is as baseless as it is unsound.

In her 2006 remarks, Dean Kagan wasn't sending a dog-whistle to the International-Cabal-of-Judicial-Activists that she would be a mini-Barak. She was declaring that she respected Barak and the values of democracy and human rights he represented. Moreover, the Right's attempt to fit Barak's career and philosophy as an Israeli jurist into the simple lexicon of America's modern political debate is fundamentally misguided.

In the interests of full disclosure, President Barak was my professor when I was a student at Yale Law School. I also clerked for Barak's immediate successor, President Dorit Beinisch of the Israeli Supreme Court, in 2008. Neither was consulted in writing this piece.

First, some background: In 2006, Dean Kagan introduced President Barak (the formal title for the head of the Israeli Supreme Court) at a Harvard award ceremony. Kagan described Barak as her "judicial hero." The event was videotaped and uploaded to the internet where it sat, relatively unnoticed, until this week.

On Monday, Senator Jeff Sessions, the ranking member of Senate Judiciary Committee, took to the floor to denounce Kagan and her "heroes." Sessions singled out President Barak as a "judicial activist" of the worst stripe, and Sessions has reportedly promised conservatives that questions about Barak would reappear in Kagan's upcoming confirmation hearing.

On Wednesday, Reagan's failed Supreme Court nominee, Robert Bork, declared that Kagan's praise for Barak showed a lack of a "mature philosophy of judging." Bork declared that Barak "might be the least competent judge on the planet," and that Kagan's statement is "disqualifying in and of itself."

Put aside the irony of Bork "borking" a Supreme Court nominee. Put aside the overblown and crass style of Bork's remarks. Put aside the fact that Kagan's introduction was part of an award ceremony, not traditionally the moment for deep pronouncements of judicial philosophy.

Even so, both Bork and Sessions are misguided. Elena Kagan does not seek to copy Aharon Barak's jurisprudence wholesale, and her praise does not show a lack of a "mature philosophy of judging." Rather, Kagan's remarks stem from a respect for the work President Barak did for his country, and the core values for which he stands.

It is true that some of Barak's decisions and parts of his judicial philosophy appear odd to an American. This is unsurprising: American law and government have a different text, history, and structure than does Israel. Our decisions and laws appear, at times, equally odd to them.

Thus, Kagan wasn't saying that she would decide every U.S. issue the same way Barak would decide the same matter in Israel. Rather, she respected what he stood for and had accomplished, in particular, the furtherance of "democracy, human rights, the rule of law, and justice."

Judge Richard Posner, a conservative legal luminary, recognized Barak's unique contribution to Israeli society when he declared that Barak was "Israel's Cato," and that, "Israel is an immature democracy . . . it floats precariously in a lethally hostile Muslim sea, and it really could use a constitution. Barak stepped into a political and legal vacuum . . . He was a legal buccaneer, and maybe that was what Israel needed."

Elena Kagan knows that the she is not stepping into a "political and legal vacuum." She knows that the United States has a written Constitution. She understands that we do not float in a hostile sea (unless you count the Gulf Coast).

In short, we do not need an Aharon Barak now, and Elena Kagan knows it. Everyone knows it. But that doesn't mean Barak can't still be a hero.

Our Aharon Barak was John Marshall. Chief Justice Marshall helped to shepherd America and its Court through some of the same thickets of democratic adolescence that Barak faced in Israel. Even though we do not need a John Marshall today, we can still respect his values, principles, and accomplishments.

George Washington is my hero, but I think political parties are necessary for modern government. Abraham Lincoln is my hero, but I don't think we should adopt his Civil War policies wholesale today. Winston Churchill is my hero, but I still like regular elections. Any hero is, necessarily, part of the time and place in which he or she lives.

Senator Sessions completely missed this difference between a hero and a clone. Sessions mocked Elena Kagan's declaration that Barak "presided over the development of one of the most principled legal systems in the world."

In reality, that is exactly what happened. Israel, alone among its neighbors, supports the rule of law and individual rights. The Israeli Supreme Court has played a pivotal role in this development, from outlawing torture to ensuring that the channels of democracy remain open to unpopular political parties. President Barak played a key role in this process. Those are the values that make him a hero.

In fact, Senator Sessions's constituents should ask him: If Sessions does not believe Israel to have "one of the most principled legal systems in the world," then what does he think Israel possesses?

We share common values with Israel, not an identical structure, law, and policy. The same can be true for our judges.

There are many good questions to ask Elena Kagan during her upcoming confirmation hearing. Some may be asked; fewer will likely be answered. Regardless, it would be a shame if the hearing becomes an unsophisticated discourse of the record of Aharon Barak.