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Robert Bork on Elena Kagan

11:24 PM, Jun 23, 2010 • By MICHAEL WARREN
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Former federal judge Robert Bork said Wednesday that Supreme Court nominee Elena Kagan’s admiration of Israeli supreme court judge Aharon Barak, a Harvard graduate widely regarded as a quintessential activist judge, is "disqualifying in and of itself."

Robert Bork on Elena Kagan

During a conference call sponsored by Americans United for Life, Bork said Barak is the "the worst judge on the planet," and Kagan's acclamation of Barak is important to understanding her as a potential justice. "It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what the courts can do. And that usually wears off as time passes and they get experience," he said. "But Ms. Kagan has not had time to develop a mature philosophy of judging, and I think that I would say that her admiration for Aharon Barak...is a prime example of that."

In 2006, Kagan referred to Barak as her "judicial hero." "He is the judge who has best advanced democracy, human rights, the rule of law, and justice," she said at an event honoring Barak, according to the Harvard Law Record. Barak's view of broad judicial power would certainly give opponents of judicial activism in the United States cause for concern. Appeals court judge Richard Posner, reviewing Barak's book for The New Republic in 2007, explains the Israeli judge's philosophy:

In Barak's conception of the separation of powers, the judicial power is unlimited and the legislature cannot remove judges. (And in Israel, judges participate in the selection of judges.) Outfitted with such abstractions as "democracy," "interpretation," "separation of powers," "objectivity," "reasonableness" (it is "the concept of reasonableness" that Barak would have used to adjudicate the "package deal" for the release of the terrorist), and of course "justice" ("I try to be guided by my North Star, which is justice. I try to make law and justice converge, so that the Justice will do justice"), a judge is a law unto himself.

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