Ambition and orthodoxy (Kagan’s hero is also Dershowitz’s) was just posted by Philip Weiss of Mondoweiss:
Elena Kagan, the nominee to the Supreme Court, was dean of Harvard Law School in 2006 when she introduced Aharon Barak, chief judge of Israel’s High Court of Justice, during an award ceremony as “my judicial hero.” She explained (per the New York Times):
He is the judge or justice in my lifetime whom, I think, best represents and has best advanced the values of democracy and human rights, of the rule of law and of justice.
Turns out that Kagan (who testified today that “Israel means a lot to me”) is not alone. In The Case for Israel (2003), Harvard Law Professor Alan Dershowitz writes:
This book is respectfully dedicated to my dear friend of nearly forty years, Professor Aharon Barak, the president of Israel’s Supreme Court, whose judicial decisions make a better case for Israel and for the rule of law than any book could possibly do.
Who is Barak? In Beyond Chutzpah, Norman Finkelstein says that Aharon Barak was “a leading proponent” of guidelines allowing torture– making Israel the “only country in the world where torture was legally sanctioned,” according to the Israeli human rights group B’Tselem. He also gave a green light to administrative detentions, even as the judge conceded, “there is probably no State in the Western world that permits an administrative detention of someone who does not himself pose any danger to State security.”
And he approved the barrier wall that crosses through occupied territory, of which Finkelstein says:
If all branches of Israeli government and society bear responsibility for this impending catastrophe [the end of the two-state solution], the share of the HCJ and especially its liberal chief justice, Aharon Barak, is relatively larger. Due to its moral authority the HCJ was in a unique position to sensitize the Israeli public. Beyond helping fend off external criticism of Israel’s annexationist policies, the HCJ chose to mute the collective Israeli conscience.
Of course Finkelstein was denied tenure at DePaul not long after he published that book.
Finding Elena Kagan paired up philosophically with Alan Dershowitz may be too much for most liberals to bear. Is she just another exceptionalist that regards lawlessness in Israel a necessary fact of life, while portraying herself as an honest to god liberal American judge.
There’s not a goddamned liberal bone in Dershowtiz’s body. So who is it that we are about to confirm as a Supreme Court justice?
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(Harvard Int’l L.J. Online) – Under the all-seeing eye of the judicial review exercised by the ISC and promoted and led by Aharon Barak, a sophisticated system of oppression has developed in the OPT. Confiscation of land and colonization (allowing the population of the occupier to settle in the occupied territory); two different systems of law applying to two populations within the same territory (the Palestinians on the one hand and the privileged Israeli settlers on the other hand); a military court system virtually immune from the ISC’s intervention; a widespread and long-standing policy of house demolition; extrajudicial executions; a hostile family unification policy; arbitrary manned and unmanned checkpoints and roadblocks preventing ordinary life; the separation wall; detention – including administrative detention – of large numbers of Palestinians and inhumane conditions of incarceration and torture; expulsion and deportation; curfews and closures; and killings with impunity are the highlights of this system that Barak justified and, hence, advanced.
Justice Barak has employed a manifold of interconnected legal and rhetorical strategies within his judicial review to allow the evolution of this oppressive system. As I explain and demonstrate below, these strategies include oppression-blind jurisprudence, concealment of the general context, fragmentation of reality, the practice of non-intervention and submission to dubious “security” considerations disguised rhetorically by “balancing” and “proportionality” tests, and declining to provide meaningful and timely legal remedies.
The legal reasoning of Justice Barak and his Court, according to David Kretzmer, exemplifies the attitude of a “benevolent occupation,” within which the “belligerent occupier” transforms rhetorically his interests into the interests of the local population (or the “protected persons”) while ignoring the broader political context.
“The Judge in a Democracy: Barak’s Judicial philosphy” [pdf]
"But I will not let myself be reduced to silence."So who is it that we are about to confirm as a Supreme Court justice?
I’m not terribly enthused about Kagan (Wood would have been a better choice, IMHO) but I’m not buying this guilt by association argument. Like a lot of Jews, she probably has a blind spot regarding Israel. I don’t see this translating into her being a bad justice. She will most likely disappoint on some cases, but there’s zero chance she’ll produce anything like the craptacular decisions that Alito, Scalia, Thomas, and Roberts have been turning out. From a progressive point of view, she’ll turn out to be a decent, but not great, justice.
Can’t disagree. But when she hooks up with her Harvard colleague, and goes overboard praising one of Israel most right wing, anti-Democratic, proZionist High Court judges, it does take the air out of the balloon. Barak was the equivalent of judges who served the US in the late 19th century when Jim Crow was just fine.
Exceptionalists like Kagan and Dershowitz like to compartmentalize their thinking, in order to be able to live comfortably with good and evil law.