Elena Kagan will almost certainly be confirmed as the next US Supreme Court Justice, with the dubious distinction of having the thinnest legal record of any nominee in generations and absolutely no judicial experience. One would think that an appointment to be one of the nation’s top nine judges – with life tenure – should at a minimum require that the person at least have served as a judge before, somewhere, sometime. But not in the peculiar Wonderland of Supreme Court nominations; if a slender paper trail is enough to derail a nomination, then choose someone with no paper trail at all but who possesses the requisite political (read: liberal) background and – in the fashionable milieu where group identity defines the person – belongs to one of the favored classes.
(Of course this is sour grapes. Having been a practicing lawyer and still an active dayyan, the idea of being passed over for the nomination by someone with less legal experience – who has never drafted a single judicial opinion in her life – stings me.)
The danger posed by a Justice Kagan to the Republic is illustrated by a vignette dug up by the assiduous researchers who beleaguer every nominee: her overflowing and copious praise of former Israeli Supreme Court President Aharon Barak as the justice she most “admires.” Well, Barak was revered or reviled (depending on your point of view) as a judicial autocrat, who believed his role was shaping the law in accordance with his personal preferences, or, when the law did not suit him, simply amending it or drafting it to his satisfaction. Barak did not just usurp the role of the Knesset but also the role of the Cabinet , Prime Minister and the IDF
That led me to dig out of the archives an op-ed piece I write for the Jewish Press, published on December 22, 2007, about an encounter I had with Justice Barak. If Kagan really admires him as a judge, we are all in trouble.
A Glimpse Into The Mindset Of A Judicial Oligarch (Copyright, Jewish Press, 2008)
By: Rabbi Steven Pruzansky
Date: Thursday, December 27 2007
“A democracy must fight terror with one hand tied behind its back.”
So stated Aharon Barak, the former president of Israel’s Supreme Court at a forum I recently attended at the Shasha Center for Strategic Studies at the Mount Scopus campus of Hebrew University.
The discussion centered on the potential and real conflict between democracy and the war on terror, and featured a debate between Barak and Judge Richard Posner, former chief judge of the United States Seventh Circuit Court of Appeals (based in Chicago), and one of the leading conservative legal scholars in the United States.
Abstractions do not always mingle well with the real world. Hebrew University President Menachem Magidor bragged that it is good to be in an ivory tower, detached from the real world and capable of pontificating about anything without consequences, although, he said, “we should keep the doors and windows open to see what the people are doing.”
So when the evening began with 25 minutes of heckling from individuals protesting “the occupation,” the liberal authorities (and HU is a liberal bastion) had no idea how to respond. People jeered – at the evening’s chair, former Mossad head Ephraim Halevy, and then at Barak when he started to speak – and security raced over to plead with the protesters to sit down and be quiet, and plead, and plead some more.
I was sitting in the third row with a group of professors (don’t ask), and when one said, “See, this is real democracy,” I answered, “No, this is not democracy, this is anarchy.”
After 20 minutes the crowd started chanting to throw the hecklers out, and eventually the ringleader was dragged away (howling that her rights of free speech were being violated!). Five minutes after she left, another one started in. By the fifth such demonstrator, “tolerance” was tossed to the wind, along with the remaining protesters.
The irony is that they should have stayed, because Barak’s words, actions and philosophy are powerful weapons in the hands of terrorists and a major reason why Israel’s strategic position has declined so precipitously in the last 15 years.
Justice Barak posited that the main function of a judge in the war on terror is to protect democracy “both from the terrorists and from the means the state uses to combat terrorists.”
The judge protects democracy from the state, the Knesset, the army, and even the people – even if there is less security for the people. Any curtailment of liberties that occurs in wartime will inevitably carry over to peacetime, and, in any event, “peace for one person is war for another.” Terrorists are just “lawbreakers” and must be dealt with, but not at the expense of fairness, justice or their human rights.
Thus, he boasted of his court’s decisions (almost all written by him) forcing the army to re-route the security wall (“the additional security provided was not commensurate with the additional harm caused to Palestinians”); overturning the government’s decisions expelling certain terrorists; nullifying the Knesset’s law permitting the demolition of the homes of terrorists; and setting the standards on a case-by-case basis for targeted assassinations of terrorist chieftains.
Barak even invalidated the Knesset’s repeal of the “Family Reunification Law” that had permitted Israeli Arabs to marry spouses from Judea, Samaria and Gaza and enable them move to Israel proper. This law became, in effect, an underground railroad for terrorists as no fewer than 26 of these “spouses” were subsequently imprisoned for perpetrating murderous acts against Jews. Barak ruled that the law must remain in effect, as it would violate the human rights of Arabs not to be able to choose their spouses and have them live in Israel. (Of course, the women could have moved to the Gaza paradise to live with their basherts, but Barak did not consider that.)
And so on. Barak prided himself on ruling Knesset laws unconstitutional, a neat trick given that Israel has no written constitution. He paid lip service to Justice Robert Jackson’s famous dictum that “the Constitution is not a suicide pact” and to the idea that a government’s primary obligation is to protect its citizens. But Barak sees a higher value – protecting the abstract beauty of democracy and human rights (in which “judges are the experts”), notwithstanding the harm to the individual.
The altar of democracy requires sacrifices. Of course, Barak likely does not ride buses, or shop in Machane Yehuda, or have any relatives in Sderot. Nor, strange as it sounds, did Barak even mention once that Israel is a Jewish state. Democracy uber alles.
Imagine if the ACLU actually governed the United States instead of just incessantly filing lawsuits; that is the picture of the legal system in Israel today. It is both naïve and dangerous.
I was reminded of George Orwell’s observation that “some ideas are so absurd only an intellectual could believe them.” But Judge Posner, who is as soft-spoken as he is brilliant and riveting, demolished Barak’s arguments point by point. Clearly from the American experience, he said, there is no slippery slope.
In every war (beginning with Lincoln’s suspension of habeus corpus during the Civil War), there were severe limitations on various civil rights, but when the war ended the measures were simply repealed and the status quo ante restored. Many of the restrictions imposed after the Arab Terror of 9/11 have already been relaxed (foolishly, Posner thought).
It is unthinkable in an American context that the Supreme Court should insert itself at will into the decisions of the political or military establishment, and micromanage government and security. Cases take years to get to the Supreme Court, so American judges already have real-life experience as to what works, what doesn’t work and what real harm is caused, if any.
Judicial tyranny is also incompatible with democracy, and judges are not omnipotent, Posner said. (Much of the audience cheered, and Barak squirmed.) He lambasted Barak’s assertion that Barak’s decisions are (as Barak had said) the “correct interpretation of law”, and said he – Posner – would never say that he is indisputably correct even when he is in the majority.
Posner added that he never uses terms like “justice, fairness, human rights,” deriding them as “empty words” that can be twisted by a judge to mean whatever he wants them to mean. And then there is no “rule of law,” but the subjective opinion of one person who is no more informed or expert in these nebulous matters than any other person.
Law is a “river of uncertainty” and it is perilous when judges create an “air of mystery” around their decisions, as if they are descending from some higher authority. He quipped that sometimes “with freedom comes irresponsibility.” But, he asserted, in America “we don’t want to fight a war with one hand tied behind our back.” American courts are not unfettered; Congress can limit their jurisdiction and budgets. And judges should never feel completely independent; “judicial independence is not a synonym for omnipotence or the rule of judges.”
Interesting, a Jew with seichel. Democracy is based on majority rule with protection for minority rights – but the minority does not have the right to infringe on the lives and well-being of the majority.
Barak was left to grimace, and then – in rebuttal – to remark how disappointed he was in Posner’s “extreme” views. He went on and on and on about the indispensability of unlimited judicial power as the only safeguard for democracy and human rights. “There is no justice without fairness, and there is no democracy without human rights,” he declared.
At that point, a gentleman in the third row asked: “What about the settlers from Gush Katif? Did they have human rights, or do human rights only flow in one direction, to Arabs?” The audience was thrust into silence and then a low murmur at this most peculiar turn of events – a pro-Jewish advocate at Hebrew University. (All right, I confess, the inquirer was me. I had more to say but held back so as not to be rude.)
Barak was flummoxed. He looked at me and could not respond except for mumbling some platitude about the right to free speech. He ended his talk abruptly and sat down. Posner, who was sort of beaming during my brief remarks, had the decency not to respond to Barak’s condescension to him, and the evening ended.
In an instant, the bubble of high-minded, self-righteous piety had been burst, and the emperor was shown to indeed have no clothes. In the world according to Barak, it is an outrageous and unacceptable affront to justice to demolish the homes of terrorists – murderers of Jews – but perfectly acceptable and moral to demolish the homes of 9,000 religious-nationalist Jews.
The dangers of subjectivity in law – by a self-perpetuating judicial oligarchy answerable to no one, composed exclusively of like-minded liberals who are charged with appointing their successors – became apparent. It was now easy to understand how Jewish teenagers who had blocked a highway to protest the Gaza expulsion could be sentenced to two years in prison.
I left and walked to Mount Scopus to gaze at the Temple Mount, thinking of the lyrics of Yehoram Gaon’s famous song about Jerusalem: “For a hundred generations, I dreamt of you – to cry, to see to merit, the light of your face.” That light, of course, is the light of the Torah that goes forth from Zion and that does not yet have any standing before Israel’s judges.
I then drove to the Kotel as the Tenth of Tevet began – to be cleansed, to be comforted, to daven Maariv, to mourn the thousands of victims of Barak-ism, and to pray that Israel survive even the well-intentioned efforts of the Knights Templar of “Democracy and Human Rights.”
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