Sunday, May 16, 2010

Does Elena Kagan also believe that judicial power is unlimited?

During her time as Dean of Harvard Law, Elena Kagan referred to Aharon Barak , a professor of law who served as a judge on the Supreme Court of Israel from 1978 to 1995 and as President of that Court from 1995 to 2006, as "my judicial hero." Kagan added, "He is the judge who best advanced democracy, human rights, the rule of law, and justice." But, as C-FAM has noted, "Barak is known amongst both conservative and liberal legal minds as one of the most activist judges on record." Kagan's own views are so disturbing that C-FAM notes, "Based on a review of the rather meager writings and public statements by Kagan, a picture still emerges of a liberal activist whose sympathies for foreign law raise serious questions about how she would follow the U.S. Constitution if she is confirmed."

Just how radical is Elena Kagan's "hero" Aharon Barak? Professor Amnon Rubinstein of Israel has been quoted as having said that, " many respects the Supreme Court under Barak has become an alternate government." And Richard Posner, a judge on the Seventh Circuit Court of Appeals as well as a highly-respected authority on jurisprudence, has been critical of Barak's view of the separation of powers, arguing that, in effect, his view is that "judicial power is unlimited and the legislature cannot remove judges."

Does Elena Kagan share this view? In our own time, many federal judges have strayed from their constitutional role of interpreting the law to actively legislating from the bench in order to impose their radical vision for America. This violates the separation of powers, that political doctrine by which the executive, legislative and judicial branches of government are kept distinct in order to prevent an abuse of power. What is Elena Kagan's vision for America?

Related reading here. And here.

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