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Backtracking on Barak: Kagan Plays Down Talk of ‘Hero’

Kagan made a remarkable effort at backtracking this afternoon when Sen. Chuck Grassley (R-Iowa) asked her about comments she made about her "judicial hero" Aharon Barak.

The nominee tried to downplay her profession of admiration for the notoriously agenda-driven retired Israeli Supreme Court Judge, saying her comments came in the course of giving an introduction before Barak’s speech at Harvard Law School: "I gave introductions to many, many people. If any of you came to Harvard Law School, I would have given you a great introduction too."

Although the senators laughed at that response, Americans should not be laughing. Here are a few of the troubling views of Kagan’s "hero":

•Barak feels that legislatures cannot be trusted to remove members of the judiciary and that only other judges should be able to remove each other. 

•Barak often talks about separation of powers in the government, but in reality he believes the judiciary is tasked with the protection of a democracy and only it can act as final arbiter of whether a government action will be deemed lawful. 

•Barak claims the judiciary has the right to overrule executive and legislative actions that breach his expansive definition of human dignity.  Actions that could be invalidated are the death penalty, life imprisonment with no chance of parole, and cuts to welfare aid. Barak thinks U.S. courts should follow his view, and he would locate this power in our Constitution under the concept of equality and the penumbras of our rights under Griswold v. Connecticut.

•Barak thinks in a constitutional democracy the people can enact unconstitutional constitutional amendments.  Whether or not a constitutional amendment is unconstitutional is up to the judiciary.

•Barak claims to give the executive deference in military matters, while in reality his view of the law’s reach is so expansive that his court has countermanded military orders, decided whether to release terrorists within the framework of a political “package deal”, and has directed the government as to where it can put up a security fence to keep suicide bombers from entering Israel from the West Bank.

•Barak believes the powers of judicial review are so expansive that decisions by military commanders over which enemy combatants can be detained for interrogation first need to go through the judiciary. (Supreme Court of Israel Decision in 2002.)

•Barak believes the judge is the ultimate arbiter in maintaining a stable democracy, and that every branch of government should be subject to constant judicial review with little deference in decision making, especially government agencies. 

For sources to these facts, see AUL’s Kagan File. To see Kagan’s introduction and clips from Barak’s Harvard Law speech, see AUL Action’s video "The Other Barak."

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