Imagine that a Supreme Court nominee of a Republican president had proclaimed Justice Scalia “my judicial hero.” Wouldn’t everyone recognize that such acclaim seemed to offer special insights into the nominee’s jurisprudential approach? That the nominee had set forth Scalia as a model that she would strive to emulate?
Now imagine that defenders of the hypothetical nominee pointed out that Justice Ginsburg had introduced Scalia at an event with remarks that affirmed her own “profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.” Would anyone seriously conclude that Ginsburg’s remarks somehow negated the inferences about the nominee’s jurisprudential approach that would reasonably be drawn from the nominee’s acclaiming Scalia as “my judicial hero”?
Strangely, Greg Sargent tries to dismiss legitimate concerns about Elena Kagan’s praise of Israeli justice, and arch-judicial activist, Aharon Barak as “my judicial hero” on the same feeble grounds as the defenders of the hypothetical nominee. You see, it turns out that Scalia, in introducing Barak at a ceremony in which the American Association of Jewish Lawyers and Jurists was giving him an award, reportedly “affirm[ed] a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.”
Sargent somehow contends that Scalia’s comments about Barak and Kagan’s acclaim for him as “my judicial hero” amount to “equally effusive praise.” Indeed, he uses the phrase “equally effusive praise” twice in his short blog post. The equivalence he posits is absurd on its face (even apart from the fact that the very report that Sargent cites credits a complaint that Scalia “had celebrated his friend only to sequester him within the exceptionality of the Israeli legal system”).
Sargent also tries to dismiss Kagan’s acclaim for Barak as “general praise” and “boilerplate”—as though Kagan routinely lauds judges of all stripes as her judicial heroes. And he makes the straw-man argument that Kagan’s acclaim “doesn’t signal automatic lockstep agreement”—as though anyone had contended, say, that Kagan would be closely mimicking Barak’s order requiring the Israeli army to distribute more gas masks to residents of the West Bank.
Kagan’s acclaim for Barak amply justifies the concern that Kagan shares Barak’s remarkably aggressive view of judicial power.