Menachem Mendel

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Bork on Barak

The latest from Robert Bork, (hat tip)

Former Supreme Court nominee Robert Bork is opposing Solicitor General Elena Kagan’s nomination to the high court because she admires Aharon Barak – the former chief justice of Israel’s supreme court whom conservatives regard as an activist liberal judge.

In a conference call sponsored by Americans United for Life, Bork said that Kagan’s praise for Barak shows she doesn’t yet have a mature judicial philosophy. He called Barak “the worst judge on the planet,” who touts his own reputation as an activist judge in Israel.

“It’s disqualifying in and of itself,” Bork said of Kagan’s opinion of Barak.

When she introduced him at Harvard Law School in 2006, Kagan reportedly called Barak “her hero” and praised him as “the judge who has best advanced democracy, human rights, the rule of law and justice.”

Bork has been bashing Aharon Barak for quite some time. See this review by Bork of a book by Barak and this post on Bork’s review.

Barak has also been criticized by Richard Posner and they even debated at Hebrew University. See this response to Posner’s critique of Barak. Also see these posts.

It is also interesting to note that Richard Goldstone, yes, that Richard Goldstone, also wrote an article about Barak. Also see this critique of him from the left.

I haven’t read much of Aharon Barak’s decisions, but I found his theoretical writings very interesting and informative. For the life of me I can’t understand why his Judicial Discretion has not been reprinted. In the meantime, try out his The Judge in a Democracy and Purposive Interpretation in Law to get a taste of his writings. As this review points out, while the topics of Barak’s books may be the same in English and Hebrew, they were written for different audiences.

Update: See this timely post on the history of Israeli law at the Legal History blog.

2 Responses to “Bork on Barak”

  1. 1

    I see that Bork and Kagan also have some history: see here, here and here, although it’s not entirely clear what her comments actually signify (see the comment thread to the last post).

    And while we’re on the subject of Barak, here’s what R. Chaim Navon has to say about his “judicial piracy”:

    בית המשפט לא אמור לשנות חוקים של הכנסת. אהרון ברק כבש לעצמו את הסמכות לשנות חוקים – יש שכינו זאת “פיראטיות משפטית” – ובכך פלש לסמכויות הרשות המחוקקת.

  2. 2
    Menachem Mendel:

    Judicial Review in Israel is quite controversial. I am not familiar enough with the subject to have much of an opinion.




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