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Why is an Israeli judge Elena Kagan's 'judicial hero'?

Not much is known about Supreme Court nominee Elena Kagan's views, so her praise four years ago for Israeli Chief Justice Aharon Barak have Republicans worried she will emulate his judicial activism.

By Correspondent / June 30, 2010

Supreme Court nominee Elena Kagan takes her seat on Capitol Hill in Washington on Tuesday, during her confirmation hearing before the Senate Judiciary Committee.

Susan Walsh/AP


Tel Aviv, Israel

Not much is known about Supreme Court nominee Elena Kagan's views, so her praise four years ago for Israel's Supreme Court Chief Justice Aharon Barak has taken on unusual significance in the high-stakes nomination process.

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Ms. Kagan reportedly called Mr. Barak a "judicial hero'' who has "best advanced the values of democracy." Sen. Jeff Sessions (R) of Alabama last week called the remarks "very troubling'' and warned it might provide "real insight into her view of the law."

Senator Sessions questioned whether Kagan would emulate Mr. Barak's judicial activism.

Indeed, Barak, 73, is internationally renowned for pushing human rights in an insecure democracy, insisting on the primacy of secular jurisprudence despite the veneration of Jewish religious law, and for strengthening the court's check on the other branches of government. At home, he is regarded as the most influential justice in Israel's 62-year history and a figure who has revolutionized the high court's standing.

But he is also a controversial figure in Israel. Though he is lionized in legal circles, critics say he spearheaded a homogeneous court of secular elites that overstepped its bounds by promoting a universalist legal agenda out of touch with the rest of society.

Barak pushed "the belief that the court can intervene in any issue, including budget, foreign affairs, and security, which is opposite of what existed in the past…. They took powers which were not really in their hands," says Avraham Diskin, a professor of political science at Hebrew University of Jerusalem, who argues that the justice turned Israeli jurisprudence on its head.

"The degree of activism of Barak is such that he ruined the rule of law in Israel. When you go to court, nothing is clear. It’s a gamble."

Kagan walked back her remarks on Tuesday, but said, "I admire Justice Barak for what he's done for the State of Israel in ensuring an independent judiciary," Reuters reported. Her original praise for Barak came in 2006, when she was dean of Harvard Law and he got an award on campus
for his work as a justice.